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Civil Petition for Special Leave to Appeal No. 121‑R of 1980, decided on 12th October, 1980.

(On appeal‑ from the judgment and order of the Peshawar High Court dated 15‑6‑1980 in S. A. O. 38 of 1980).

--S. 13 read with Transfer of Property Act (IV of 1882), S. 51 Equity‑Improvements not made with landlord's permission‑Tenant not entitled to compensation therefore-Contention that improvements having been made with knowledge of landlord, petitioner tenant's case fell under equity of S. 51, Transfer of Property Act, 1882, held, not correct‑Equity conferred by S. 51‑Not available to tenant and limited to a person believing himself to be absolutely entitled to property subject‑matter of improvement.

Qazi Abdul Rashid, Advocate and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 12th October, 1980.

‑The respondent is the 'owner of the shop occupied by the petitioner. The petitioner was using the shop for running his business as a barber, and, had, therefore, made improvements on the property, details of which are given in paragraph 2 of the petition for leave. However, in the events that happened, the respondent filed an eviction case against the petitioner on the ground that she needed the demised' premises for the use of her son. Eviction has been ordered by all the Courts below and Mr. Rashid does not challenge the order of eviction. However, even before the Rent Controller, whilst challenging his eviction, the petitioner had made a claim of compensation for the improvements made by him in the shop in the event of being evicted. This claim too was rejected by the Courts below and in dismissing this claim in the. High Court, the learned Judge observed in his order of 15‑6‑1980 :

"Since the improvements are not stated to have been made with the express consent of the landlord and because they are not improvements which would enhance the value of the premises the appellant is not entitled to compensation therefor."

Mr. Rashid is aggrieved only by these observations and seeks leave to examine the question whether the appellant was entitled to compensation for the improvement made by him on the demised premises.

Learned counsel admitted that the improvement made by the petitioner had been made for the proper running of his business and he has had the benefit of these improvements and he was compelled to admit that the petitioner has had the benefit of these improvements for more than twenty years. We, therefore, asked him how the improvements could possibly benefit the respondent's property. But, learned counsel was not able to answer this question and he admitted that the respondent had not even been cross‑examined on the suggestion that the improvements made by the petitioner for his own benefit would benefit the respondent. The evidence also is not' before us, therefore, it is difficult to see how Amy exception can be taken to the observation of the learned Judge.

Learned counsel, however, appeared to rely on the fact that the improvements had been made with the knowledge of the respondent, therefore, he appeared to think that the petitioner's case fell under the equity of section 51, of the Transfer of Property Act. The argument is fallacious for more reasons than one. In the first place, it is not Mr. Rashid's care that the improvements were made with the respondent's consent. Secondly, as to section 51 he was not able to show us how the equity conferred by this section is available to a tenant, because it is limited to a person, who believes that he is absolutely entitled" to the property which he has improved.

There is no merit in this petition, which is dismissed.

Petition dismissed.

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