1. ' The above petition has been instituted by Anjuman Jamiat-ul-Ikhwan (Registered) against Karachi Building Control Authority and others against the grant of lease of Plots Nos.33 and 34, MR- 3, measuring 229 Square Yards situated in Market Quarters, Saddar, Karachi, in favour of respondent No,6 vide order dated 21-5-2003.
2. ' The brief of the case as pleaded by the petitioners are that the above referred property was allotted to them through Resolution No,37 dated 9-5-1951 of Karachi Municipal Corporation. In terms thereof, P.T.I. Was also issued in their favour vide Annexure P/1/3. In 1992 petitioners raised construction thereon consisting of shops, offices and Madressah on upper storey which was already running since 1951. After reconstruction of premises respondents Nos.6 to 13 were indicted as tenants. Subsequently, these respondents without consent and knowledge of petitioners started depositing monthly rent in Court. In the meanwhile, two irregularities i.e, default in payment of rent and impairing of existing condition of the premises in their occupation were committed. Therefore ejectment Applications bearing No,693 of 1999 to 700 of 1999 were filed against all of them, which were allowed on 31-1-2000. Appeals preferred by respondents Nos.6 to 13 against ejectment order were dismissed. However, Constitutional Petitions Nos.706 of 2002 to 713 of 2002 filed by these respondents/tenants before this Court were allowed on 8-4-2003, which has been assailed by the petitioners before Honourable Supreme Court of Pakistan.
3. ' Pending the litigation a Constitutional Petition No,2773 of 1993 was filed by the President and Secretary of Anjuman Jamiat-ul-Ikhwan against Karachi Building Control Authority and some builders who entered into the premises and had raised unauthorized construction thereon. That petition was disposed of in terms that:-- "In view of the above admitted position we would allow this petition to the extent that the respondents Nos.1 and 2 are directed to perform their statutory duties strictly in accordance with law and to demolish any construction that may be found to be illegal. We further direct that such duty needs to be performed within a reasonable time and preferably within three months and report compliance to the Registrar of this Court."
4. ' In the meanwhile, in May, 2000, respondent No,6 who was a tenant of petitioners in Shops Nos.15 and 20 and also claimed to be the tenant of Shops Nos.16 to 19 fraudulently formed an Association, namely, All Shopkeepers of Akhwan Centre Association and got it registered under Registration No, 0142 Karachi of 2000.
5. ' In chain of these illegal acts, after disposal of appeal bearing No,2773 of 1993 whereby order to demolish the illegal construction was passed, respondent No,6 in collusion with City Nazim, Town Nazim and Chief Controller of Buildings moved an application on 4-4-2002 to them with a request for regularization of the shops in their favour. Nazim, Saddar Town, in a prior collusion with respondents Nos.4 and 6, issued two letters dated 6-5-2002 to respondent No,6 Zaheeruddin intimating that office of Nazim, Saddar Town, has no objection if the building on plot MR-3/3334 is regularized as commercial in favour of All Shopkeepers of Akhwan Centre Association. By second letter of 6-5-2002 very respondent No,6 was informed of verification of these plots. It is alleged that while giving no objection for regularization of this property in favour of respondent No,6, respondent No,3 intentionally omitted to mention the fact that this property was already transferred to petitioners long before, in 1951. However it is reported by the petitioners that by letter dated 27-8- 2002 Deputy Controller of Building has asked from respondent No,6 to submit ownership extract in favour of Ikhwan Centre and other documents as listed therein. Being already in connivance with respondents 3 and 4, Zaheeruddin respondent No,6 got a letter issued from respondent No,4 on 28- 11-2002 to Chief Controller of Buildings that "since Town Nazim has already issued no objection certificate vide letter No,Nazim/Saddar/ AR/PS/679/2002 dated 6-5-2002, therefore, this office has no objection towards the regularization of old constructed shops." In result thereof, regularization of construction in favour of respondent No,6 was issued on 28-12-2002. This fact of regularization of disputed property in favour of respondent No,6 came in knowledge of the petitioners through their Attorney Usman Ibrahim, on 27 or 28 July, 2004. After coming in knowledge of this fraudulent regularization, petitioner moved applications to City Nazim, Karachi and Home Secretary, Sindh on 29-7-2004 and 30-7-2004 respectively but as no response was given to those petitions, therefore, petitioners had no other remedy but to file this petition, being original allottee of the disputed premises while till the date has not been cancelled from their name. #TBS [Vol. VIII #TBE ' During the course of arguments, it is pleaded by learned counsel for the petitioners that being original allottee of premises in question through Allotment Order dated 9-5-1991, which has not been cancelled so far, they cannot be debarred from the right to own the property in question.
6. Respondents Nos.6 to 13, who were admittedly the tenants of the petitioners cannot claim adverse possession in against to them on the ground of so-called regularization, made in their favour on 28-12-2002 without any just and legal process, as it is a settled principle of law that a party cannot back out from the statement made by him at one stage or cannot deny the status once created by any contract or statute. The undisputed fact is that respondents Nos.6 to 13 were put in possession in disputed premises by petitioners as landlord and subsequent to that in different litigation proceeded in the. Court of law either by the respondents Nos.6 to 13 or by the petitioners, relationship of landlord and tenant in between the parties was never disputed by the respondents Nos.6 to 13, therefore, now they cannot retract from their previous status. The argument advanced by learned counsel for petitioners appeal to reason, because if once a status in any property is created by virtue of any agreement in favour of any person, then he is estopped to question the same at any subsequent stage. As is in the present case that after allotment of disputed premises in favour of petitioners in 1951, respondents Nos.6 to 13 were put in possession in disputed premises as tenants. This fact was not rebutted by respondents Nos.6 to 13 at least up to 2003 i.e, till disposal of Constitutional Petitions Nos.706 of 2002 to 713 of 2002. Therefore, when there was no denial relationship of landlord and tenant in between petitioners and respondents Nos.6 to 13 and this fact was admitted by them after full deliberation and the cases had proceeded practically to their conclusion on the basis of such admission, then now the respondents Nos.6 to 13 cannot be allowed to resile from that admission and claim adverse possession to make a base for regularization of disputed premises in their favour. In such-like situation it has been observed in 1990 SCM R 1613 that:-- "Once it has been held by a competent Court that there exist relationship of landlord and tenant between the parties, the tenant or his successor-ininterest cannot claim better title than their predecessor-in-interest. The question of adverse possession in the circumstances of the case, does not arise in view of the decree passed against ' Mst. Anwar Begum in spite of the fact that the same had not been executed."
7. ' Conversely, learned counsel appearing on behalf of the respondents Nos.6 to 13 had laid much emphasis on the fact that the allotment in favour of the petitioners was cancelled in 1967 whereafter it was resumed by K.M.C., now respondent No,2, therefore, after cancellation of property in question in against to the petitioners, respondent's application for regularization of plot in their favour was granted in accordance with law. These arguments advanced by the learned counsel for the respondents Nos.6 to 13 do not have any merit therein because statutory position is that the tenant will always remain a tenant and he cannot claim ownership of the property and is estopped to deny the title of the owner at the stage.
8. 'Article 115 of Qanun-e-Shahadat is relevant in this context which speaks as under:-- "115. Estoppel of tenant and of licensee of person in possession: ---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 the tenancy, a title of 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."
9. ' Elaborating the principle embodied in Article 115 of Qanun-e-Shahadat, 1984, it is observed in AIR 1937 Privy Council 251 that :-- "The section postulates that there is a tenancy still continuing, that it had its beginning at a given date from a given landlord. It provides that neither a tenant nor anyone claiming through a tenant shall be heard to deny that, that particular landlord had at that date a title to the property. In the ordinary case of a lease intended as a present demise - which is the case before the Board on this appeal - the section applies against the lessee, any assignee of the term and any sub-lessee or licensee. What all such persons are precluded from denying is that the lesser had a title at the date of the lease and there is no exception even for the case where the lease itself discloses the defect of title. The principle does not apply to disentitle a tenant to dispute the derivative title of one who claims to have since become entitled to the reversion, though in such cases there may be other ground of estoppel, e.g., by adornment, acceptance of rent, etc. In this sense it is true enough that the principle only applies to the title of the landlord who "let the tenant in" as distinct from any other person claiming to be reversioner. Nor does the principle apply to prevent a tenant from pleading that the title of the original lessor has since come to an end."
10. ' With reproduction of above reported judgment it is further observed in 1991 CLC 481, that:-- "Article 115 of the Qanun-eShahadat, 1984, embodies the principle of estoppel arising from the contract of tenancy. It is based upon a healthy and salutary principle of law and justice that a tenant who could not have got possession but for his contract of tenancy admitting the right of the landlord should not be allowed to launch his landlord in some inequitable situation taking undue advantage of the possession that he got and probable defect in the title of his landlord."
11. ' The same view has been also expressed in PLD 1975 Lahore 284, that:- "Since the appellant was put in possession of the shop by the respondent as tenant, the latter is precluded from denying the tenancy. Regardless of whether at the relevant time the respondent was in possession of a P.T.O. Or not. He became the landlord of the appellant in respect of the shop in question."
12. ' In view of the foregoing discussion record of the case further reflects that there will be no cavil to the proposition that a tenant obtaining possession of property is deemed to obtain it upon the terms that he will not dispute the title of his landlord who gave it to him and without whose permission he would not have got it.
13. ' The fact that disputed property is still in the name of the petitioners has also not been disputed by the City Government in its comments filed to this petition. Though in context to regularization of disputed property in favour of the respondents Nos.6 to 13 they had given a brief history of case but not a single document has been placed on record to show that at any stage from 1951 to date that regularization or allotment in favour of the petitioners was ever cancelled by any competent authority leaving a room to the respondents 1 to 5 to again issue a regularization letter of property in favour of the respondent No,6. Even respondents Nos.6 to 13 except verbal assertion that lease has been cancelled from the name of petitioners have not placed any order of such cancellation.
14. ' While objecting the regularization of premises in question in favour of respondents Nos.6 to 13, it has rightly been pointed out by learned counsel for petitioners that even if for argument sake it is taken that respondents Nos.1 to 5 were justified in regularizing premises in question in favour of respondent No,6, then at least being an existing allottee they had a right of notice and opportunity of hearing. Yet the record is silent on the point, nor it is pleaded by respondents Nos.1 to 5 or even respondent No,6 that any such notice of cancellation of allotment of disputed property from the name of petitioners or re-allotment in favour of respondent No,6 was ever issued to the petitioners by the concerned department.
15. ' The upshot of above discussion is that we find no substance in the defence ,pleaded by the respondents and as all the parties on record have placed substantial documents on record in support of their respective cases and have also advanced their arguments in full, therefore, we allow and finally dispose of this petition at the stage of katcha peshi.