' This is a second appeal from the judgment of the Additional District Judge, Karachi, Mr. Hamzo Khan Qureshi, who, setting aside the judgment of the trial Court, creed the plantiffs' suit for possession of the premises in question which is a cabin attached to the shop premises and building upon a part of the Chabutra of the said shop.
2. The material facts are these, The building, in which the shop is situated, is known as `Saloojee Mansion' and was purchased by the respondent Ismail and Ahmed in the year 1948. The tenement No, 3 of this building was a shop and to this shop was attached a cabin constructed in the manner stated since the year 1946. The appellant took it in the year 1948. This tenement No, 3 was occupied by one Mohiuddin who was its tenant and was running in it a restaurant. Mohiuddin sold the running business of this restaurant to Mir Bahadur by an agreement dated 14-11-57. To that agreement was appended a note to this effect : "The purchasers shall be entitled to recover rents from the for cabin holders in the said restaurant at the seller used to do previous to this date."
' It may be noted that besides the present appellant there were three other persons who were in occupation of three different cabins attached to this very shop. After Mohiuddin went out the present respondent brought this action against the appellant Ahmed Din for possession of this cabin upon the ground that he was a mere licensee of Mohiuddin and since the latter had surrendered the lease, this amounted to the termination of the licence and the plaintiffs were entitled to possession. The defence of the appellant was that he was not a licensee but a lessee of Mohiuddin and in effect a sub-lessee of the owner and the mere fact of the termination of the lease of Mohiuddin by surrender did not put an end to the sub-lease. The learned Sub-Judge, Mr. Kazmi who tried the suit, upheld this contention and dismissed the plaintiffs' suit who went in appeal which was heard by the learned Additional District Judge who disposed it of by the, impugned judgment.
3. The learned Additional District Judge took the view that in so far as Mohiuddin had given vacant possession by the letter of surrender to the respondent landlords on 31-10-57, the appellant Ahmad Din could not thereafter claim to be entitled to maintain the possession of the cabin. By some strange process of reasoning which, I must confess, is not clear to me, the conclusion was reached that Ahmed Din could claim no better right than his benefactor, namely Mohiuddin and since the former had surrendered possession the latter had no right to continue in possession of the cabin.
Reliance was placed on behalf of Ahmed Din upon section 115 of the Transfer of Property Act, but that was also rejected upon the ground that Ahmed Din was a mere licensee and not a sub-lessee.
The suit was, upon these findings, decreed and the appeal of the landlords was allowed.
4. Since a great deal has been made of the letter of surrender it may be convenient to reproduce it here :- "I, the undersigned Haji A. Mohiuddin, tenant of your building Saloojee Mansion, Barness Street, Karachi, in tenement No, 3,, hereby hand you over the vacant possession of tenement No, 3 of your building as I am no longer in need of this tenement.
' From now you can give this tenement on rent or can use the same for your own requirements and 1 shall have no claim for this property. I hereby declare that I have paid all the taxes relating to my hotel and if any taxes are not paid I shall be responsible to pay the same.
(Sd.) Haji A. Mohiuddin."
' This letter bears the date of 31st October, 1957. It may be observed that in this letter there is no mention whatever of the termination of the licence or sub-lease of the cabin of the appellant or the other cabins which were admittedly there at that time. The learned A. D. J. Accepted the landlords' contention rather easily by holding that vacant possession of the shop was given to the landlord on 31st October, 1957. This finding was in disregard of admitted facts and there were certain inferences which inescapably flowed from them. The agreement of sale of the running business was executed by Mohiuddin in favour of Mir Bahadur on 14-11-57. Mir Bahadur admittedly continues to be the tenant of the shop. It is he who produced this agreement of sale when he was called as a witness in the suit. The lease in favour of Mir Bahadur from the landlords must be held to have come into existence later than the alleged date of actual surrender which was 31st October, 1957. If vacant possession of the shop had already been given by Mohiuddin to the landlords there is no explanation as to how Mohiuddin continued to be the owner of the business until he sold it to Mir.
Bahadur by the agreement dated 14-11-57, Exh.
8. There can be no doubt in these circumstances that Mohiuddin, Mir Bahadur and the landlords had reached an understanding whereby the landlords were to accept Mir Bahadur as their tenant in plac of Mohiuddin inasmuch as Mir Bahadur was going to purchase the runnin business of the- hotel. A surrender in order to be effective in law for th purposes of determination of the tenancy must be accompanied by deliver of possession. In so far as Mohiuddin went out of the shop and Mir Bahadur was accepted by the landlords as tenant, the surrender, in fact, became effective against Mohiuddin, but I am unable to understand the reasoning of the learned Additional District Judge by which the conclusion was reached that the licence or sub-lease, as the case may be, of Ahmed Din was also terminated by that process. Section 115 of the Transfer of Property Act provides that "the surrender, express or implied, of a lease immovable property does not prejudice an under-lease of the property or any part thereof previously granted by the lessee.
5. The question which next arises is whether the appellant was a licensee or a sub-lessee. The trial Court found that he was a sub-lessee. The learned A. D. J. Found to the contrary, but in doing so he had to get over the agreement of sale, Exh. 8, which also provided that the pruchaser of the business, namely Mir Bahadur, was entitled to continue to recover rent from the cabin-holders. The clause disproves the case of mere licence. The rent was being paid and the finding of the learned trial Judge that the occupier of the cabin was in exclusive possession has not been disturbed. The cabin was built upon a part of the Chabutra and into one of the doors of the shop. The learned A. D.
J. Attempted to get over this part of the transfer document by suggesting that it appeared to be a forgery. This finding was without any evidence and unreasonable on the face of it. There would be no reason whatever for any such forgery and that also in a document which was in possession of Mir Bahadur who continued to be the tenant of the landlords. The further circumstance in that this cabin has admittedly existed since the year 1946 and the appellant himself has been a there since 1948, that is more than 11 years before the respondents bought this property. This is too long a period for a licence. I can take judicial notice of the fact that in Karachi in the busy quarters, such as Ran chore Lines where the property is situated, there are innumerable cabin attached to shops and which bring a substantial amount of rent to the owner of the shop.
6. I, therefore, hold that Ahmed Din was a sub-lessee of the cabin and not a licensee. That being, so, that sub-lease was not affected by the termination of the 'tenancy of Mohiuddin. On this finding the plaintiffs' suit was bound to fail. I accordingly allow the appeal and set aside the judgment of the learned Additional District Judge, with the result that the plaintiffs' suit is dismissed with costs {{PAGE BLUR}} b inGl'azua ,L4: '
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