' RAHMAT HUSSAIN JAFFERI, J.---On 21-4-1985, the respondents filed a suit for declaration and injunction stating therein that a petition of City Survey No,945, Sanghar Town was granted to their father namely Mistri Muhammad Din, husband of plaintiff No,11, in the year 1957, by the Deputy Commissioner, Sanghar. On a portion of the said plot, shops were constructed, which were let out to the appellants and they were paying the rent when suddenly they stopped paying rent.
Therefore, on enquiries, they came to know that the appellants were trying to get the shops allotted in their favour from District Council, Sanghar and a resolution to that effect was passed by the said Council authorizing the Chairman, District Council, Sanghar to grant the said shops to them.
Therefore, the respondents filed the suit for declaration that they might be declared as lawful owners of the plot and shops; that the appellants were not entitled to transfer the suit premises to any other person and for injunction restraining the officials respondents from transferring the property to the appellants or any body else. The appellants filed the written statement in which they admitted the tenancy between the parties but took the plea that subsequently they came to know that the property was not owned by the respondents, therefore, they stopped paying the rent.
They also took the plea that they being in possession of the shops, District Council, Sanghar was entitled to transfer the property to them. The official respondents also filed the written statement admitting the claim of the respondents that some portion of City Survey No,945 was transferred to the predecessor-ininterest of the respondents but the suit premises on which shops were constructed was out of the boundaries of said City Survey and were on the abandoned portion of the District Council, therefore, the property belonged to District Council, which had right to transfer the same.
2. Out of the pleadings of the parties, the trial Court framed the required issues. The parties led evidence to prove their cases. After assessing the evidence, the trial Court formed the opinion that suit property viz. Shops were included in City Survey No,945, therefore, decreed the suit vide judgment and decree dated 12-9-1989. The appellants challenged the said judgment and decree before the District Court, whereas the official respondents did not prefer any appeal against the judgment and decree of the trial Court. The appellate Court appointed Commissioner and on the basis of the report of the Commissioner set aside the judgment and decree of the trial Court by dismissing the suit of the respondents, vide judgment and decree dated 7-3-1990. The respondents preferred revision application before the High Court of Sindh, Hyderabad Circuit. A learned Single Judge of the High Court set aside the judgment and decree of the Appellate Court and restored that of the Trial Court by allowing the revision application under the impugned judgment dated 29- 4-2005. Hence, the appellants have filed the present appeal by leave of the Court.
3. Learned counsel for the appellants has argued that the appellants were tenants of the predecessor-in-interest of the respondents, but when they came to know that the property was not owned by the respondents, therefore, they stopped paying rent; that the property was owned by the District Council, therefore, the appellants approached it for the allotment of shops in their possession and such resolution was passed by District Council, Sanghar, thereby authorizing the Chairman, District Council, Sanghar, to allot the shops in their possession; that after decision of the appeal, the District Council had allotted the shops in their names; that the appellate Court has rightly decided this issue on the basis of report of the Commissioner; therefore, the impugned judgment may be set aside.
4. Conversely, learned counsel for the respondents has stated that the suit property was owned by the predecessor-in-interest of the respondents, after whose death the property devolved upon them; that the appellants were their tenants and had been paying the rent, therefore, they cannot challenge the title of the respondents; that Commissioner's report is also not supporting the case of the appellants. He has further argued that the judgment and decree in respect of ownership of the property against the official respondents has attained finality, as neither they challenged the same before the higher forum nor filed any cross-objections, therefore, the Revisional Court has rightly decided the matter in their favour.
5. We have heard the learned counsel for the parties and perused the record of the case with their assistance. The admitted facts are that the appellants were the tenants of the respondents. They were paying rent to them. The judgment and decree of the trial Court with regard to the title of the respondents against the official respondents has attained finality, as the District Council did not challenge the said findings of the trial Court before any forum. Thus, they have accepted the decision of the trial Court, as such, the judgment and decree of the trial Court reached its finality in respect of the official respondents. In this situation, now the question arises as to whether a tenant can challenge the title of his landlord. In this respect Article 115 of Qanun-e-Shahadat Order, 1984 (hereinafter referred to as 'the Order') would be relevant to cover the above position. The said Article reads 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 to 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 license was given."
6. From the above provision of law, it is clear that statutory bar has been created against the tenant to challenge the title of the landlord. Faced with the situation, learned counsel for the appellants has relied upon Azimuddin v. Dilshad Hussain PLD 1973 Karachi 284 and argued that in presence of actual owner of the property, Article 115 of the Order would not be applicable. In this connection, it is once again pointed out that the decision arrived at by the trial Court in respect of title of the property has been decided against the official respondents. They have not challenged the judgment and decree of the trial Court, as such, they have accepted the same. Further it is not alleged that District Council ever threatened the eviction of the appellant. In any case, ordinarily the tenant is not entitled to set up the title of a third person. Therefore, the said authority is not relevant in the peculiar facts and circumstances of the present case. There is nothing on record to show that the bar created under Article 115 of the Order has been removed, as such, they cannot challenge the title of the respondents.
7. In the light of what has been discussed above, the present appeal has no merits, hence, the same is dismissed.