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Civil Petition for Special Leave to Appeal No. 10‑R of 1983, decided on 31st October, 1983.
(On appeal from the judgment and order of the Lahore High Court Rawalpindi Bench, Rawalpindi, dated 8th December, 1982 passed in Civil Revision No. 798 of 1980).
‑‑‑ Art. 185(3)‑Transfer of Property Act (IV of 1.882), Ss. 111 & 116 Lease‑Expiry of period of lease‑Tenancy by holding over‑Onus of proof upon lessee‑Mode of proof.
In order to succeed in establishing his right to the renewal of the lease by holding over, the onus of the proof whereof lay heavily upon the lessee, he bad to prove that after the determination of the original lease the lessor or his legal representative accepted rent from the lessee or otherwise assented to his continuing in possession. For valid reasons the receipt of the rent before the determination of lease was not considered sufficient to satisfy the requirements of law for effecting the renewal of the lease by holding over.
Samad Mahmood, Advocate Supreme Court instructed by Khan Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioner.
Ch. Abdur Rehman, Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate‑on‑Record (absent) for Respondents.
Date of hearing : 31st October, 1983.
The petitioner was granted a lease of land for the purpose of installing and running a. Brick Kiln by Ch. Khuda Bakhsh, the predecessor‑in‑interest of the respondents by means of a registered deed dated 9‑4‑1955, for a period of 19 years ending on 8‑4‑1974. On the expiry of the lease period the respondents called upon the petitioner to surrender the possession of the demised property, but as the petitioner did not comply, they brought a suit for his ejectment and recovery of mesne profits. The petitioner contested the suit and his main plea was that after the expiry of the original period of lease he continued to be the lessee of the land by holding over. In support of this plea the petitioner relied upon a receipt for payment of lease money, dated 11‑3‑1973 executed by Fazal Karim respondent as rent for the year 1973‑74. The learned trial Court found that the aforesaid basis was not sufficient to support the right claimed by the petitioner as a tenant by holding over, for the reason that the payment admittedly made during the subsistence of the original lease, could not be held to have the effect of renewal of the lease by holding over. In view of this finding the learned trial Court rejected the defence plea and decreed the suit against the petitioner. The learned Additional District Judge affirmed this finding and dismissed the appeal of the petitioner.
2. Being aggrieved by the aforesaid judgments the petitioner challenged the decree passed against him in a Civil Revision before the Lahore High Court. Rawalpindi Bench, Rawalpindi, which was also dismissed by judgment dated 8‑2‑1982, except that the High Court modified the decree by dismissing the suit of the respondents in regard to the prayer of mesne profits, which was given up by the respondents at the hearing of the revision. The petitioner now seeks special leave to appeal from the aforesaid judgment of the High Court.
3. In support of the petition learned counsel for the petitioner has reiterated the arguments addressed by him before the High Court and has contended that the lease stood renewed by holding over as the respondents bad received rent from the petitioner and clause 12 of the original lease‑deed also incorporated a renewal clause. After hearing the learned counsel at some length we find that the contentions urged before us were rightly repelled by the High Court. In order to succeed in establishing his right to the renewal of the lease by holding over, the onus of the proof whereof lay heavily upon the petitioner, he had to prove that after the determination of the original lease the lessor or his legal representative accepted rent from the leasee or otherwise assented to his continuing in possession. For valid reasons the receipt of the rent before the determination of lease was not considered sufficient to satisfy the requirements of law far effecting the renewal of the lesse by holding over. There was no other evidence to petitioner that the respondents had assented to the petitioner's continuing in possession. The language of clause 12 of the lease‑deed was rightly construed as not conferring right of renewal on the petitioner as a lessee. The decree passed against the petitioner is, therefore, well‑founded both the evidence as well as in law and there is no infirmity therein.
4. The petition is, therefore, devoid of force and is accordingly dismissed.
M. Z. M. Petition dismissed.
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