Find a Lawyer

Second Appeal from Order No. 20 of 1978, decided on 6th December 1978.

-- S. 116-Estoppel of tenant-Tenant questioning title of his land lord on ground of tenancy having come to end on happening of certain events subsequent to establishment of tenancy-Tenant, held, not estopped from questioning title of his landlord in circumstances Property admittedly evacuee property and respondent put in posses sion of same by appellant-Property subsequently acquired by Central Government free from all encumbrances under evacuee property law and transferred to third persons by Settlement Department and P. T. O. also issued in suet persons favour-Respondent, held further, ceased to be a tenant under the appellant automatically and became a tenant under the transferees by operation of law-Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 30.

Lingayya Ayyavaru v. Kandula Ganglah and others A I R 1928 Mad. 58 ref.

-- S. 116-Estoppel of tenant-Appellant himself instrumental in surrendering his title in suit property by agreeing to allow respon dent to deposit rent of suit kothas in Court of Rent Controller till decision of suit filed by appellant regarding his title over suit property-Appellant having himself accepted repudiation of his rights as landlord of suit property and on appellant's suit being dismissed transferees of suit property withdrawing entire rent deposited with Rent Controller without same being challenged by appellant, appel lant, held, could not claim himself as landlord of property and relationship of landlord and tenant no longer in existence.

Azimuddin v. Dilshad Hussain P L D 1973 Kar. 284 and Rahim Bakhsh v. Ahmad Bakhsh P L D 1964 S C 189 ref.

Muhammad Akhtar Khan for Appellant.

Abdul Aziz Khan Kundi for Respondent.

Date of hearing : 22nd November 1978.

Before the partition of sub-continent, Gulzada father of Muhammad Yousaf (appellant) was in possession of certain Kothas comprised of Property No. 566-5539-40-41 situate in Mohallah Patha Mandi, Illaqa Dabgari, Peshawar City and on his death, the appellant along with his other brothers and sisters came in possession of the said property. In the year 1963, this property was declared as evacuee property but the heirs of Gulzada disputed this declaration and claimed the ownership of the suit property and in this regard lodged their claim before the Custodian and their case went up to the level of Supreme Court but could not succeed and the suit property remained declared as evacuee property. However, in the review petition before the Supreme Court, the learned Judge while dismissing the said petition observed on 26-4-1967 :-

"The petitioners are still in possession and no proceedings have yet been taken to eject them therefrom. When such a contingency arises, they can take the defence that they cannot be ejected without payment of compensation first."

Prior to this i.e. on 3-12-1966, the appellant had inducted the respondent Aziz Mahmood son of Miran Gul as tenant in the Kothas Nos. 5541 and 4191 and a rent deed to that effect was executed by the respondent in favour of the appellant on 3-12-1958. The said respondent had been paying rent to the appellant but stopped payment in the year 1969 and hence the present petition.

This petition was contested by the respondent tenant by filing a written reply contending therein that there exists no relationship of landlord and tenant between the parties and the trial Court on the pleadings of the parties framed two preliminary issues, namely :-

(1) Whether the relationship of landlord and tenant exists between the parties

(2) Whether the Rent Controller has got the jurisdiction in the case

3. The parties produced their evidence as they wished to adduce and the learned trial Court vide his order dated 20-JO-1976 decided both the issues against the appellant and dismissed the application of the appellant and the appeal therefrom was also dismissed by the learned District Judge, Peshawar on 22-1-1978 and hence the present appeal.

4. I have heard the learned counsel for the parties and perused the record very carefully. The sole point that requires decision in this appeal is that whether the appellant is a landlord of the respondent in that he had inducted the respondent into the property in question irrespective of the fact that the said property was later on transferred to third person. To establish that the appellant is the landlord of the property, the learned counsel for the appellant drew my attention to section 116 of the Evidence Act by saying that the tenant-respondent under no circumstance can deny the relationship of landlord and tenant between the parties. Section -116 of the Evidence Act reads :-

"No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of tenancy, a title to such immovable property and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when such licence was given."

There cannot be two opinions about the proposition that once a tenant is always a tenant and section 116 ibid is a clear bar in the way of the tenant in the normal course of events. This provision would, however, not be applicable in the case of a tenant who questions the title of his landlord on the ground that after the commencement of the tenancy, it came to an end 8n certain events which happened subsequent to the establishment of the tenancy.

In the case in band, the property admittedly was an evacuee property and the respondent was put in possession of the same by the appellant. Subsequently, the property in question was acquired by the Central Government free from all incumbrances under section 3 of the Displaced Persons Act of 1958 and after its acquisition the same was transferred to Akhtar Shah and Daulat Shah (not before me) by the Settlement Department: and P. T. O. issued in their names. No sooner the P. T. O. was issued in their names in respect of the suit property the respondent who was occupying the said property whether a tenant under the Custodian or under a third person (appellant) ceased to be a tenant under the Custodian or under the appellant and he (respondent) automatically became a tenant under the transferees by the operation of law and all his rights were to be governed by section 30 of the Displaced Persons Act, 1958 which is reproduced for/ the sake of convenience :-

"Where any person is in possession of any evacuee house, or shop, or has been declared by a Custodian to have tenancy rights from a date prior to the 14th day of August, 1947 in any industrial concern, Cinema house or printing press which is transferred to any other person under the provisions of this Act, then, notwithstanding anything contained in any other law such person shall without prejudice to any other right which he may have in that house, shop, industrial concern, Cinema house or printing press be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held it immediately before transfer."

This being the legal position, the respondent was within his right to deny the title of the appellant because the same was put to an end by the operation of law in favour of a person holding paramount title. Reference in this regard is solicited to an authority reported in A I R 1928 Mad. 58 (certified copy of which has been placed on file) in which his Lordship Wallace, J. had held :-

"Where a person holding a paramount title steps in and the title of the landlord is put an end to, a tenant who had attorned to the former is not estopped from denying his landlord's title."

Besides this the appellant was himself instrumental in surrendering his title in the suit property by agreeing to allow the respondent to deposit the rent of the suit Kothas in the Court of Rent Controller till the decision of Suit No. 212/1 filed by the appellant 'regarding his title over the suit e property. The fact that the appellant himself had accepted the repudiation of his rights as a landlord of the suit property is crystal clear from the order of Mr. M. A. Sarwar Khan, the then Additional District Judge, Peshawar in Miscellaneous Civil Appeal No. 17/1.4 decided tin 12-4-1969 in which it is held :-

"It had been agreed by both the parties that the rent of the suit property should be deposited in the Court of Rent Controller till the decision of the suit. The party succeeding should receive the rent so deposited."

The suit of the appellant was ultimately dismissed by the Court o Civil Judge, Peshawar on 22-9-1970 and the appeal therefrom also failed,. The transferees thereafter withdrew the entire rent so deposited which was no challenged by the appellant in any forum. This surrender of the right by the, appellant by itself was enough for the respondent to repudiate the title of thee C appellant and now it does not lie in the mouth of the appellant to claim himself as landlord of the property for a third person i.e. the transferees (real owners) intervened and the relationship of landlord and tenant had co to an end. In this regard reference is made to P L D 1973 Kar. 284 in which) it is held :-

"Tenant cannot deny title of his landlord but position different when third person who is real owner intervenes relationship of landlord and tenant comes to an end

In the instant case, the transferees are P. T. O. holders in respect of the suit property and the P. T. O. has full force and the person occupying a property becomes statutory tenant under the P. T. O. holders. In this behalf I am fortified by an Authority reported in P L D 1964 S C 189.

5. The upshot of the above discussion is that the orders of both the learned Courts below are well founded and hereby maintained and the appeal stands dismissed with costs.

S. A. H. Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.