1. ' This suit was filed on 7-11-1950 by Qamardin who died during the pendency of this suit, which is now represented by his legal representatives (hereinafter called the plaintiffs) in the erstwhile Chief Court of the Sind claiming the eviction of the defendant from a piece of land with building thereon measuring about 906 sq. Yards out of the plot of land measuring 1866 sq. Yards bearing Survey No, 11/13 Survey Sheet R. Y. 9 situated at I. I. Chundrigar Road in the Railway Quarters of the City of Karachi (hereinafter called the premises) and for arrears of rent and mesne profits amounting to Rs, 5,362.50 and for further means profits from the date of the suit till realisation under the following circumstances.
2. ' Late Qamardin had by a registered sub-lease deed dated 15-3-1949, let out to the defendant which is a private limited liability company the aforesaid premises for a period of 10 years on a monthly rent of Rs, 975 on the terms and conditions set out therein. The sub-lease was to commence from 1st May, 1949, after the plaintiff had put the defendant into the possession of the demised premises as mentioned in clause 2 of the sub-lease deed. The defendant in accordance with the terms of the sub-lease was required to pay to the predecessor of plaintiffs a sum of Rs, 7,500 as earnest money and was further required to pay a sum of Rs, 7,500 at the time of registration of the sub-lease deed, Rs, 7,500 one month after the registration of the sub-lease deed and Rs, 7,500 on occupation, making a total sum of Rs, 30,000. This sub-lease was registered with the Sub-Registrar on 16-3-1949. The aforesaid amount was to be adjusted against the future rent at the rate of Rs, 250 per month. Besides the above amount, the defendant was also required to pay under the terms of the sub-lease as mentioned in clause 6 of the sub-lease deed another sum of Rs, 3,000 which was again to be adjusted against the future rent at the rate of Rs, 125 per month.
3. ' It is the case of the plaintiffs that defendant paid rent upto February, 1950 but fell into arrears since March, 1950. Thereupon, by a notice dated 13th September, 1950 the plaintiffs called upon the defendant to pay the arrears and informed it that otherwise, the provisions of clause 14 of the sub- lease deed would be enforced. Clause 14 provides that if the defendant fails to pay the rent for 3 months or commits breach of any of the terms or conditions contained therein, it would be lawful for the plaintiff to terminate the sub-lease and enter upon the demised premises and take possession of the same. This notice was followed by another notice dated 15-9-1959 (Exh. 15) terminating the sub-leases and calling upon the defendant to quit and deliver the possession of the premises by 18-9-1950. On the defendant's failure to deliver the possession, the plaintiff forfeited the amount of Rs, 30,000 and filed the present suit on 7-11-1950 as stated above. The defendant filed its written statement, pleading that it had paid a sum of Rs, 1,250 as compensation to the refugees who had unauthorisedly occupied the plot and had spent a sum of Rs, 900 on construction of a boundry wall totalling Rs, 2,150 which, according to the defendant, it was entitled to deduct from the amount due to the plaintiff. The defendant further claimed that it has suffered damages in the sum of of Rs, 700 and spent sum of Rs 150 towards repairs and replacement of sanitory fittings and thus the defendant claimed adjustment of Rs, 3.000 against the rent due to the plaintiff. The defendant also pleaded that the forfeiture of the advance of Rs, 30,000 paid by the defendant to the plaintiff was unconscionable. The defendant subsequently with the permission of the Court amended its written statement wherein it claimed relief against forfeiture.
4. ' That on the pleadings of the parties following issues were framed by the Court:-
(1) Was there any oral agreement between the parties that the plaintiff was to have the half portion of the plot in suit evacuated and given vacant possession thereof to the defendant?
(2) Did the plaintiff fail to carry out annual repairs and did the defendants suffer any loss thereby?
(3) Did the defendants incur any expenses for and on behalf of the plaintiff towards sanitary fittings repairs and obtaining vacant possession of the half portion of the plot in suit? If so, are the defendants entitled to deduct the said amount from the rent due to the plaintiff?
(4) Are the defendants permitted by agreement to sublet the whole or any portion of the suit premises? Could they do so after the notice of termination?
(5) Is the plaintiff entitled to forfeit the sum of Rs, 30,000 by virtue of clause 13 of the agreement? If the said clause is unconscionable?
(6) Is the plaintiff entitled under the circumstances to obtain ejectment of the defendants from the suit premises and to any sum as memo profits?
(7) Are the defendants entitled to relief against forfeiture?
(8) To what relief if any, is the plaintiff entitled?
(9) Whether this Court has no jurisdiction to try this suit?
(10) General including the question of costs.
5. ' Before I proceed to discuss the issues I may mention that Qamardin had obtained lease of the property fi Nomanbhai, Dawoodbhai Wasy and Zainul Nomanbhai Wasy who were residents of Bombay under a registered lease deed dated 30th November, 1948 and thereafter had granted the sublease of a part of the leased property to the defendant under the aforesaid sub-lease.
6. ' I may also mention that Nomanbhai, Dawoodbhai and Zainul Nomanbhai had purchased this property from its Hindu owners namely, Hashmat Rai another and had applied to the Custodian for confirmation of the sale and appointed Qamardin as their agent to manage the property as would appear from the order of Custodian, Evacuee Property dated 6-5-74 (Exh. 28/1). It further appears from the said order that the Muslim purchasers from Bombay had made an application through Qamardin for confirmation of the transaction between them and the Hindu owners. During the pendency of these proceedings defendant filed an application under section 34 of the Pakistan Administration of Evacuee Property Ordinance, 1949 in the suit stating that the property is evacuee and praying that the question be referred to the Custodian for determination and farther praying that the proceedings in the case may be stayed. However, on 31st July, 1953, Mr. Justice Inamullah dismissed his application. However, when the suit was fixed on 26-2-1958, Mr. Faruqui for the plaintiff and Mr. Pesh imam for Mr. Aziz stated that in view of the decision of the Supreme Court in Civil Apr eal No, 17 of 1954 further proceeding in the suit be stayed till the matter is disposed of by the Custodian according to the direction of the Supreme Court. The matter was put off for three months by his Lordship, Mr. Justice Inamullah.
7. ' The matter came up for hearing again on 11-8-1959 when Mr. K. A. Ghani, Advocate for the plaintiff and Mr. Aziz for the defendant jointly prayed that matter be adjourned till the decision of the status of the property in question by the Custodian. Accordingly, his Lordship, Mr. Justice Inamullah directed the office to fix the case for hearing thereafter. The property was finally declared evacuee on 6-5-1974 and a writ petition (Const. P. No, 1394 of 1974) impugning such declaration was dismissed by this High Court on 22-10-1976.
8. ' It appears that on 14-10-1949, Qamardin on behalf of Nomanbhoy, Dawoodbhoy and Zainul Nomanbhoy had applied for confirmation of the sale of the property by the Hindu owners, and the Deputy Custodian (Judicial) by the order dated 20-9-1952 had confirmed the sale. Against this order the defendant had filed an appeal which was dismissed by the Additional Custodian (Judicial) by the order dated 18-2-1953. However, this order was set aside by the Custodian, Evacuee Property at Karachi by his order dated 19-11-1955 and the Custodian declared the property to be evacuee property. The order of the Custodian was challenged in Writ Petition No, 5 of 1956 filed in this Court. A DiRision Bench of this Court by the order dated 5-11-1956, quashed the order of the Custodian. Aggrieved by the order of the High Court the defendant as well as Custodian of Evacuee Property at Karachi, filed two separate appeals being Civil Appeal No, K-17 of 1957 and Appeal No, K-18 of 1957 in the Supreme Court. The Supreme Court by the order dated 31-1-1958, reported in P L .1958 SC 144) allowed the appeals and remanded the case with the following observations :- "It is also clear from what we have said above that it is absolutely necessary for the making of an appropriate order in this case that the Custodian should also enquire into, and decide the question whether the property is and has been at all material times evacuee property by virtue of the allegations that the new owners are themselves resident in India, and their agent Qamardin is a person whose appointment had not been approved as required by law. In relation to this question, the Custodian will necessarily have to consider whether after the execution of the lease deed in his favour, Qamardin can be said to be any longer a mere agent of the owners since he. Has developed an independent interest in the property. This 'question has another aspect also, namely, whether a person who occupies two positions in respect of the property in question, one as agent and the other as a lessee from the owner in his own right, is a suitable person to be approved as an agent. Finally, a further question arises whether, in case the property be held to be evacuee property, the lease in favour of Qamardin is valid without the confirmation of the Custodian under section 16.
9. ' We accordingly allow these appeals with costs and hereby return the case to the High Court with the direction that they shall remit the case to the Custodian, who should be directed to make further inquiry as to him may seem fit, after furnishing a proper opportunity to the Vendees, and to arrive at a considered conclusion regarding the true market value of the land in question on the material dates, and will also enquire into the other questions which have been formulated in the immediately preceding paragraph, and thereafter to decide the case in accordance with law.
10. ' Thereafter, the Custodian again declared the property as evacuee property. This order was again challenged in the Supreme Court and the Supreme Court by the order dated 25-11-1963 again remanded the case to the Custodian for fresh adjudication. Now, for the third time the Custodian Evacuee Property by the order dated 6-5-1974 (Exh. 28/1) declared the property to be evacuee. The concluding portion of the order reads as follows :- "That in view of all the above-mentioned circumstances, the power of attorney, the lease deed which all require confirmation, are hereby unapproved and the order of the Additional Custodian confirming the sale deed is set aside-with the result that the property, in question, is hereby declared Evacuee since it was left by the original Hindu owners, has thus became available for transfer to the bona fide Refugees for whose rehabilitation, the Evacuee Laws were passed. This revision application is allowed as prayed.
11. ' Before signing this order, I must express my utmost regret for the promulgation of the matter, though very simple, for more than 10 years after it was finally remanded by the Supreme Court, but for that they were unavoidable circumstances specially the non-appointment of the Custodian for the last 3 (three) years."
12. ' Aggrieved by this order the plaintiffs challenged the same by Writ Petition No, 1394/74 filed in this Court but the same was dismissed on 22-10-1976 on the ground that the power of attorney executed by Nomanbhoy and others in favour of Qamardin stood determined on his death and therefore, the plaintiffs were not entitled to maintain the petition.
13. ' According to Mr. K. A. Ghani, Advocate the legal representatives of late Qamardin have filed a petition for special leave to appeal in the Supreme Court, which is pending hearing.
14. ' However, after the dismissal of the Writ Petition the proceedings in the present suit were commenced. Late Qamardin was examined as plaintiff's witness on 5-11-53. The plaintiffs did not examine any other witness. The defendant examined its Managing Director Mohomed Amin Khan Hazian as its only witness. These two witnesses have produced a number of documents.
15. ' I have heard Mr. Muneer Malik and Mr. K. A. Ghani Advocates. Mr. Muneer Malik stated at the bar that he would not press Issues 1, 2, 3, 5 and 7 and he addressed his arguments only on Issues 4, 6, 8 and 9.
16. ' I would therefore, consider only these issues.
17. ' Issue No 4.-This issue has two parts. The first part relates to the defendant's authority under the agreement to sublet the whole or any part of the premises. Th's part of issue can be answered without any difficulty by referring to the provisions of clause 7 of the sub-lease deed dated 15-3- 1949 (Exh. 13) which provides that the sub-leases will be at liberty to sublet the whole or any part of the demised premises to any one or more persons at such rent as it may deem proper. It is, therefore, obvious that the defendant was entitled to sublet a portion of the premises which it did to Travelogue (Pakistan) Ltd. As regards the second part of the issue i,e, could the defendant sublet the premises after the notice of termination. The burden of this part of the issue was on the plaintiffs for it is their case that the defendant sublet the premises after the service of termination of the notice. The notice of termination is dated 16th September 1950 (Exh. 15). However, there is no evidence on the record as to when a part of the premises was sublet. Nonetheless Mr. Muneer Malik invited my attention to the judgment of the Supreme Court dated 29-3-1976 delievered in the appeal filed by Travelogue (Pakistan) Ltd. Against the plaintiffs and the defendant wherein it is stated that the tenancy of Travelogue (Pakistan) Ltd. Commenced on 22-6-1950. Since plaintiff did not lead any evidence on this part of the issue, relying on the above-mentioned statement the correctness whereof is not disputed by Mr. K. A. Ghani, Advocate. I hold that the part of the premises was sublet before the termination of the sublease and therefore, the second part of the issue is also decided against plaintiffs.
18. ' Issue No, 6.-Now, I would take up issue No, 6 which related to the entitlement of the plaintiff to obtain an order of judgment of the defendant from the premises. It is contended by Mr. Muneer Malik that in view of the provisions of section 13 of the Sind Urban Rent Restriction Ordinance, 1959 (hereinafter called the Ordinance) the Court could not order delivery of possession of the premises and such an order could be passed only by the Controller under the provisions of the Ordinance.
19. On the other hand it is contended by Mr. K. A. Ghani, Advocate that section 13 of the Ordinance does not bar this Court from entertaining such a Suit and passing a decree for eviction of the defendant even if such decree cannot be executed. In support of this statement he relied on the judgment of Peshawar High Court in Mst. Dilbarjan v. Ghulam Mohomed Khan (0 wherein a learned Single Judge held that there is no bar in passing a decree although such a decree may be inexecutable. It may be useful to reproduce the relevant observations which appear in paragraph 9 of the judgment : "In fact, it was necessary to keep the jurisdiction of the civil Courts alive because there can be grounds other than those mentioned in clauses (2) and (3) of section 13 of the West Pakistan Rent Restriction Act, 1957, on which a tenant can resist a suit for ejectment in a civil Court and it is proper that he should be provided with opportunities to do so there. Such grounds can arise from stipulations in the lease deeds, and the proper forum for the interpretation of those stipulations and for adjudication thereon is a civil Court. What Section 13 of the West Pakistan Rent Restriction Act, 1957 demands is that a person armed with a decree against his tenant cannot execute it unless he also establishes before the Rent Controller that besides the decree he is entitled to eject him, on the grounds mentioned in the section. This section places tenants under additional protections and those additional protections have been made available to the tenant even when the civil Court finds that the protection contained in the terms of the lease are not of any assistance to the tenant. It is obviously, against all canons of interpretation to construe a bar against jurisdiction from the inexecutability of the decree alone. There should be a warrant for exclusion of jurisdiction in express language. It will only be then that jurisdiction will be barred within the meaning of section 9 of the Code of Civil Procedure."
20. ' However, the learned Judge, I may say so with great respect, did not consider Jumo Khan v.
21. Ramzani (2) which was cited before him as mentioned in the Judgment. In this case B. Z. Kaikaus, J.
22. (as his Lordship then was) observed at page 62 of the report as follows :- "These suits had been filed before the West Pakistan Urban Rent Restriction Act came into force, but that does not affect the question before me. As, even in the presence of a decree for ejectment it is only by an order of the Rent Controller that a tenant can be ejected, the grant of such a decree can be of no use and the Court will not pass a decree which cannot be of any benefit to the plaintiff.
23. The effect of the provision in the West Pakistan Rent Restriction Act barring the ejectment of a tenant even in the presence of a decree is that even in suits which were pending at the date when the West Pakistan Urban Rent Restriction Act came into force a decree for ejectment cannot be passed, although ordinarily an Act does not affect pending- proceedings."
24. ' Reference may also be had to Mrs. Keays Byrne v. M. Obaidullah Khan (3) wherein a Division Bench consisting of Muhammad Yaqub Ali, J. (as his Lordship then was) and A. R. Changez, J. Held at page 263 of the report as follows :- "In view of the permanent character of the Rent Restriction Ordinance,
(1) P L 1) 1960 Pesh. 15 (2) PLD 1959 Kar. 60
(3) PLD 1961 Lab. 256 we hold that the jurisdiction of the civil Court for trying a suit for the ejectment of a tenant has been ousted and no civil Court is entitled to pass a decree for the ejectment of a tenant after the enforcement of this Ordinance."
25. ' Their Lordships further observed :- "We are, therefore, of the opinion that the Rent Restriction Ordinance, 1959 is a permanent statute and the question of its expiry does not arise at all. In view of the permanent character of the Rent Restriction Ordinance, we hold that the jurisdiction of the civil Court for trying a suit for the ejectment of a tenant has been ousted and no Civil Court is entitled to pass a decree for the ejectment of a tenant after enforcement of this Ordinance.
26. ' The question that now remains to be determined is whether the decree for ejectment in the present case should be set aside in view of the change in law. This decree was passed on the 8th of May, 1958. The provisions of the Rent Restriction Ordinance are to be deemed to have taken effect from the 15th of January, 1958. Therefore, on the view which we have taken about the ouster of the jurisdiction of the civil Court and as regards the passing of the decree for ejectment, the decree for ejectment of the appellant could not have been passed by the Senior Civil Judge and is, therefore, a nullity in the eye of law. We have not been able to find any authority and none has been cited on behalf of the respondent to show that we cannot apply the provisions of the new Ordinance, which has been promulgated during the pendency of this appeal, to the facts of the case in hand. There is, however, authority for the view that the provisions of the new law can be applied in such circumstances. In Mukerjee v. Mst. Ramratan (AIR 1936 P C 49) their Lordships of the Privy Council applied the provisions of the new Act which had been passed pending the appeal to his Majesty in Council. Similarly, in Lachmeshwar v. Keshwar Lal (AIR 1941 FC 5) it was held that the Federal Court was entitled to take into account legislative changes since the decision under appeal was given."
27. ' I may here mention that the West Pakistan Urban Rent Restriction Ordinance, 1959 continues to remain applicable to this Province even after the dissolution of the Province of West Pakistan with necessary adaptation. I may also mention that Mr. K. A. Ghani had also placed much reliance on a decision of Indian Jurisdiction namely, Theruvath Vittil Muhammadunny v. Melepurakkal Unniri and another (1). Firtly, this decision is on clause 8 of the Madras Non-Residential Buildings Rent Control Order 1942. Secondly, eviction of tenant from the rental premises on the ground of non-payment of rent is clearly covered by section 13 of the Ordinance. A Further, I am bound by the pronouncement of the Division Bench in Mrs. Keays Byrne's case. I, therefore, hold that the plaintiffs cannot obtain!
28. The relief of delivery of possession in this suit.
29. ' Issue No, 9.-So far as the relief of ejectment from the premises is concerned following the decision in Keys Byrne v. M. Obaidullah, I hold that this Court has no jurisdiction on the facts of this case, to grant this relief. As regards the relief for payment of the arreas of rent and the mesne profits the jurisdiction of this Court to grant this relief to the plaintiffs, if available to them, was not questioned.
(1) AIR 1949 Mad. 765 ' I would therefore, decide this issue against the plaintiffs.
30. ' Issue No, 8.-Now, remains issue No, 8 which relates to the reliefs claimed by the plaintiffs in this suit. It was argued by Mr. K. A. Ghani that even if the relief of ejectment of the defendant from the premises could not be granted to the plaintiffs at least they are entitled to the arrears of rent and the mesne profits. The plaintiffs have claimed a sum of Rs, 3,900 on account of arrears of the rent from Ist March, 1950 to 15th September, 1950 at the rate of Rs, 600 per month and a sum of Rs, 1,462.50 on account of mesne profits at the rate of Rs, 975 from 16-9-1950 to 31-10-1950. It was submitted by Mr. Muneer Malik that in view of the order of the Custodian dated 6-5-1974 (Exh. 28/1) finally declaring the property as being evacuee property, plaintiffs are not entitled to any arrears of the rent or mesne profits for under section 7(1) of the Pakistan (Administration) of Evacuee Property Act, 1957 such property vests in the Custodian with effect from the 1st day of March, 1947, and under section 10 of the Act every person who is or has at any time after the 25th day of February, 1947, been in possession, supervision or management of any evacuee property, is deemed to hold or to have held, as the case may be, such property on behalf of the Custodian. Further, by virtue of the provisions of section 147 any amount payable in respect of any evacuee property is required to be paid to the Custodian by the person liable to pay the same. It was therefore, argued by Mr. Muneer Malik that whatever amount in respect of the premises is due it is due in respect of evacuee property and is as such payable only to the Custodian. Mr. Muneer Malik relied on the order of Custodian, dated 16-12-1959 (Exh. 28/3) in proof of the fact that the defendant was required by the Custodian to deposit the rent with the D. R. C., Karachi.
31. ' As regards the claim for arrears of the rent and past mesne profits, it is claimed that the amount of Rs, 3,900 on account of rent from 1-3-1950 till 15-9-1950, and Rs, 1,462.50 on account mesns profits at the rate of Rs, 975 per month from 15-9-1950 to 31-10-1950 were adjusted by late Qamardin towards the sale consideration of Malir Plot of land which was sold by Mohammad Amin Khan Hazin, the Managing Director of the defendant to late Qamardin vide registered sale deed dated 21-4-1951 (Exh. 19).
32. ' On the other hand, it is submitted by Mr. K. A. Ghani that the property of which sub-lease was granted to the defendant is not evacuee property for there is no decision of the Custodian that the lease-hold rights granted by late Qamardin under the sub-lease dated 15-3-1949 (Exh. 13) is an evacuee property. In any case, he further argued, the question whether the lease-hold right granted by the Qamardin to the defendant was evacuee property or not, was never referred to the Custodian for his decision as required under section 34 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 which is equivalent to under section 41 of the Pakistan (Administration of Evacuee Property) Act, 1957.
33. ' So far as the claim of the arrears of rent and the mesne profits before the filing of suit is concerned late Qamardin in his deposition in this Court has clearly admitted :- "I wanted to execute the decree but the defendant offered the land in Malir and requested me not to execute the decree. The defendant wrote me, a letter in this connection as Exh. 20 dated 20th April, 1951. The sale consideration agreed upon for Malir land was Rs, 38,000. Rs, 38,000 was worked out as under :- ' Rs, 22,700 as decretal amount.
34. ' Rs, 3,900 Towards rent from 1st March, 1950 till 15th September, 1950.
35. ' Rs, 1,462 Towards mesne profit at Rs, 975 per month from 15th September 1950 to 31st October, 1950.
36. ' Rs, 5,850 rate of Rs, 975.
37. ' Rs, 360 were paid by me towards stamp fee and registration charges of the sale deed of the Malir land in favour of Amin Hazin. Amin Hazin is the Managing Director of the defendant company."
38. ' Amin Hazin has also deposed to the same effect. Since the sale deed (Exh. 19) was registered therefore it is clear that the amount of the arrear of rent and the mesne profits were adjusted against the sale consideration of Malir property. I, therefore, hold that the amounts claimed are not payable.
39. ' It was contended by Mr. K. A. Ghani, Advocate that the defendant is estopped from challenging the title of the plaintiff and is bound to pay the rent to the plaintiff and not the mesne profits. He further submitted that between the plaintiff and the defendant tenancy rights are not declared or treated as evacuee property. He further submitted that Qamardin had raised construction on the plot and therefore his interest in the property still submits. He relied on the decision of the Supreme Court in Kalimullah v. Amin Hazeen (5) which was a case between the defendant and his subtenant namely Kalimullah who had challenged the right of the defendant to recover the rent from him on the ground that the premises in question was evacuee property and the defendant had no right to collect the rent. Their Lordships of the Supreme Court referring to section 116 of the Evidence Act held that since Kalimullah had accepted the defendant as his landlord and had entered into possession of the premises through him, he could not be allowed to challenge the title of his landlord. However, in the present case the position is that the premises have been declared to be ab initio evacuee property and as such the title of the plaintiffs has been affected by the vacation of the paramount title, for the plaintiffs are claiming through the Muslim Owners from Bombay who have been found by the Custodian to have acquired no interest in the property. Section 116 of the Evidence Act estops a tenant of immovable property or person, claiming through such tenant from denying the title of his landlord to the immovable property at the beginning of tenancy during the continuance of tenancy but not C in cases where the relationship of Landlord comes to an end by the eviction of the tenant by the real owner, which eviction may be symbolic, as in the present due to the orders of the Custodian particularly by the order date 6-5-1974 (Exh. 28/1).
40. ' I may here refer to the following observations from Risaldar Azimuddin v. Dilshad Hussain (2) which make the law on the point quite clear "Ordinarily, by reason of the rule laid down in section 116 of the Evidence Act, a . Tenant cannot deny the title of his landlord. But the legal position becomes very different when a third person, who
(1) 1976 SCMR 77 (2) PLD 1973 Kar. 284 is the real owner, intervenes, and, in that case, the relationship of landlord and tenant comes to an end if the tenant is evicted by this real owner. The eviction need not be actual but may be only symbolic. In other words, if there is notice to quit from the real owner to the tenant in occupation of the disputed property, or if there is a threat of eviction from the real owner to such tenant, then it would be a case of symbolic eviction of the tenant by the real owner, which would bring to an end the relationship of landlord and tenant which is protected by section 116 of the Evidence Act. That this is the correct rule to be applied in cases of the nature before me, where section 116 of Evidence Act has to be construed, reference may be made to two decisions of the High Court of Madras. The first of these decisions is Alaga Pillai v. Ramaswami Thevan and others (AIR 1926 Mad. 187) in which it was held that ordinarily a tenant is not entitled to set up the title of a third person even though the title is that of the Government, 'yet he is entitled to plead that he was evicted by the true owner, whether the true owner be the Government or a private person and that after such eviction he attorned to the true owner, in which case the person, who inducted the tenant into possession of the disputed property, cannot rely upon the rule of estoppel as contained in section 116 of the Evidence Act. Proceeding further, it was held that eviction need not be by actual dispossession of the tenant but that, if the true owner is armed with a legal process for eviction, which cannot be lawfully resisted, even though the tenant is not put out of possession, threat to put him out of possession amounts in law to eviction. The second case is that of S. Chokalingam Filial and others v. M. S. S. M. Danesa Shammugarundaram Pillai (AIR 1951 Mad. 284) in which this rule was re- affirmed, and it was further held that to constitute eviction, a mere threat of eviction is sufficient. It may be added here that one of the decisions cited by Mr. A. H. Farooqi, that is, Krishna Prasad Singh v. Advanth Chatak and another, itself supports this view of the applicability of section 116 of the Evidence Act. That this is so would be evident from the following passage :- ' The estoppel disappears, however, if the landlord's title is extinguished subsequent to the inception of the tenancy, or if there is eviction by by title paramount. No physical dispossession by the person claiming paramount titled, is necessary. If the true owner is armed with a legal process for eviction, which cannot be lawfully resisted, even though the tenant is not put out of possession the threat to put him out of possession amounts in law to eviction in such circumstances the tenant openly and to the knowledge of his landlord attorns to the true owner, the estoppel is gone."
41. ' The submission of Mr. K. A. Ghani, Advocate that the construction made by the plaintiff was not evacuee property is without any force for it cannot be disputed that any accretion to evacuee property is deemed to be evacuee property unless and until the person claiming any interest or right therein has claimed obtained an order in accordance with the provisions of section 22 of Act XII of 1957 or in accordance with similar provisions of D early enactment that his interest in the property has not been affected by the provisions of Act XII of 1957 or the earlier Ordinance or gets a charge created in respect thereof. It was, also submitted by Mr. K. A. Ghani that the defendant has not raised any plea in his written statement that the property is evacuee and without there being any such plea no amount of evidence led by the defendant on the question of the property being evacuee property could be looked into. In support of this submission he relied on Stddik Mahomed Shah v. Mt. Saran and others (1). In this case certain lands were given to the appellant by one Hote Khan. After Hote Khan's death there was a transference of the lands involved in the litigation by mutation of names effected upon the application of Hote Khan's widow. The appellant who was a spiritual adviser of the widow of Hote Khan wanted to keep the lands among other ground that it was a gift made by the widow herself. Rejecting this plea it was observed by their Lordships that claim was never made in the defence presented and the learned judicial Commissioner truly found that no amount of evidence could be looked into upon a plea which was never put forward.
42. ' This submission is also without any substance for firstly, the defendant has raised general plea in their written statement that this Court has n jurisdiction; secondly, it made an application under section 34 of the Ordinance XV of 1959 for referring the question of property being evacu or not to the Custodian. It is not necessary that the plea must be raise only in the written statement. It could be raised in the form of an application. Thirdly, the Court is entitled to took into new facts which have come into existence during the pendency of the proceedings. Further, the order of the Custodian dated 6-5-1974 (Exh. 28/1) was exhibited without any objection as to the absence of the plea from the plaintiff and the order clearly establishes that the property has been finally declared as evacuee property and this order cannot be ignored because no amendment was sought in the written statement, particularly, when the defendant has been agitating the question in this Court right from 4-4-1953 when it made the application under section 34 of the Ordinance XV of 1949.
43. ' The Privy Council's case cited by the learned counsel is also distinguishable on facts for in that case the plea raised before the Appellate Court was not taken in any form in the trial Court while in the present case the plea, as stated above, was raised.
44. ' I, therefore, hold that the plaintiffs are not entitled to any relief in this suit and accordingly dismiss it leaving the parties to bear their own costs in the circumstances of this case.
(1) AIR 1930 P C 57
…and 15 more citing cases