This appeal is directed against the order of the Rent Controller, Quetta, dated 30th December, 1980 whereby be dismissed the eviction application filed by the appellant against the respondent's predecessors-- in-interest (Chiragh Muhammad) seeking their ejectment from house No. 6-9/33, Dad Mohammad Road, Quetta. The said Chiragh Muhammad had taken this house on a monthly rental of Rs. 20 vide lease deed dated 8th June, 1949. This lease deed was later replaced by another lease deed dated 2nd July, 1965, wherein it was inter alia agreed that rent shall be paid to the appellant on or before 5th day of each ensuing month. Chiragh Muhammad defaulted in the payment of rent from February, 1966 to August, 1968, as such, an eviction application was brought against him by the appellant on this ground in the said Court. In his written statement Chiragh Mohammad raised the contention that he was not a tenant of the appellant, as the premises was transferred to him by the Settlement Organization vide P. T. O. Dated 16th November, 1959 and later, on 24th December, 1966 a P. T. D. Had also been issued to him which was, however, cancelled pursuant to the decision of the High Court of Sind and Baluchistan dated 4th July, 1973 in C. P. No.. 4 of 1969. He further averred that the abovementioned two lease deeds had been obtained from him by the, appellant by coercion and fraud. The Rent Controller framed the issues in the case which included an issue to determine the factum of relationship of landlord and tenant between the parties. During the pendency of the case Chiragh Muhammad expired and the present respondents were brought on record.
2. After recording necessary evidence the Rent Controller passed an order under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance VI of 1959 (hereinafter referred to as the "Ordinance") directing the respondent to deposit the arrears of rent as also the future rent. But this order was challenged by the respon--dent in appeal before the District Judge, Quetta who set it aside and directed fresh adjudication. On the questions of tenancy and obtaining of the two lease deeds by coercion and fraud as alleged. The latter question, though specifically raised in the written statement, had not received due attention of the . Rent Controller earlier. Let this be mentioned at this stage that the District Judge considered fresh decision on the point of tenancy for the sole reason that the effect of the pendency of litigation between the parties on the Settlement side for the transfer of the , house had not been adequately dealt with by the Rent Controller, while passing order under the Ordinance for the deposit of rent.
The Rent Controller dealt with these questions afresh and his findings on both the issues went against the respondent, yet he did not grant the relief of eviction in appellants favour, perhaps on the consideration of the fact that the dispute for the transfer of the property continued between the parties on the Settlement side which was finally set at rest on 4th July, 1973 by the High Court and this was enough justification for withholding rent. The order is so short and ambiguously worded that one cannot make out the reasoning, behind the concession given to the respondent, much less the effect of denial of tenancy. Anyway, present appeal challenges this order on the ground that the respondent having denied the tenancy in face of two lease deeds, voluntarily executed by him, was liable to ejectment on the principle of forfeiture of tenancy.
3. Before I deal with this contention the background of litigation of the Settlement side may be briefly narrated, after taking the disputed house on lease Chiragh Muhammad questioned the title of the appellant before the Settlement Authorities on the ground that this property was evacuee in character, as such, he being in its undisputed occupation was entitled to its transfer. Later on he also succeeded in obtaining P. T. O. In 1959. This was obviously done by manipulation with the Settlement Authorities as the certificate issued by the Custodian of Evacuee Properties on 28th October, 1948 declaring this and other properties in the appellants ownership as non-evacuee properties was suppressed throughout; with the result that the appellant failed both in the appeal and the revision on the Settlement side and lastly filed a writ petition with success, and it was at this stage that this certificate was traced out. Suffice it to say that 'the judgment made in the writ petition bears witness to such manipulation. With .The acceptance of the said writ petition the transfer documents of the respondent were cancelled. However, the respondent's obvious efforts was that he should in the first place acquire the rights of ownership in the disputed property and in the second place he should keep on protecting his position as tenant, so that if the first move ultimately failed, he may be able to retain the property as tenant under the two lease deeds, mentioned earlier, and with such a design, in his mind, he kept on paying the rent until such time that P.T.D. Has been issued to him. He, of course, succee--ded in this effort when the Rent Controller refused to eject him despite findings on both the above referred issues against him.
4. Now I would revert to the contention raised by Mr. Iftikhar Muhammad, Advocate appearing for the appellant that the respondent having entered in the premises as a tenant and having voluntarily executed two lease deeds, was estopped from challenging the appellant's title as owner, and making moves to obtain the transfer of the property in his favour, and that having done so he was not entitled to the concession of retaining the possession on. The .Plea that .He did not pay the rent because he himself was the owner of the house during the period he defaulted in the payment of rent. It is an admitted feature in this case, that two lease deeds were, executed by Chiragh Muhammad one in the year 1949 and the other in the year 1965 acknowledging the title of the appellant as landlord. The second lease deed was executed at a stage when the P. T. O. Was already in his possession. He also continued paying the rent to the appellant up, to the year 1967, viz. Near about the period when the P. T. D. Was issued to him. From this his obvious design of firstly retaining this property as owner and in case of failure, its occupation as tenant is fully betrayed.
This is obviously unbecoming of a tenant as far as our legal system expresses. The record bears witness to the fact that he litigated on the question of ownership with his landlord for over a decade initially in the Settlement Courts and then in the High Court. Resultantly it is obvious that he overtly challenged the title of his landlord as owner by pointing out defect in his title at the inception of the tenancy and also set up an adverse title against him. It is settled principle of law that once a tenant always a tenant. This principle is recognized by section 166 of the Evidence Act where under a tenant has been debarred from denying the title of his landlord either by subsequently pointing out any defect in his title as owner at the inception of the tenancy or by setting up title to the property adverse to his landlord's interest. (See Mst. Taj Mahla and others v.
Mst. Qureshi and others (PLD -1967 Pesh. 290). Enunciating the- principle of estoppel m Risaldar Azizuddfn v. Dilshad Hussain (PLD W Tsar. 284) it was held that the tenant was not even entitled to set up the title of a third person including that of the Government to the tenanted property adverse to the interest of the landlord; and in case it was done,. The unavoidable result would be forfeiture of tenancy. In the instant case, the respondent challenged the title of the appellant and tried to set up; the title of the Custodian to the property so that he himself could secure ownership of the property by stepping into the' shoes of the Custodian; hence the factum laid down in this case, applies to this case with full force. Mr. Lftikhar Muhammad placed before me Khizre Nawaz v.
Khanimullah and others (PLD 1962 Pesh. 114) and Sadiq Ali v. M. D. Arej. (PLD 1975 Lah. 284) In both these authorities principle of estoppel contained in section 116 of the Evidence Act, has, been interpreted to mean that a tenant was absolutely debarred from setting up' a title to the tenanted premises adverse to the interest of his landlord or in any other manner denying or challenging the tenancy. There is a wealth of case law on this point and the views are identical.
5. Mr. Muqim Ansari, Advocate appearing for the respondent, however, contended that it was discretionary with the Rent Controller to withhold the relief of eviction even in Case of contumacious denial of tenancy by a tenant, as word "may" and not "shall" has been used in section 13 of the Ordinance in connection with the order of ejectment, To support this contention he argued that the property in question had been made available by the relevant authorities for transfer, as such, there was no legal embargo in way of the respondent to advance his claim to its transfer. But that is not so. The Custodian and its successor viz. The Settlement Organization never invited any applications for the transfer of this property, nor was the respondent directed to treat any of them as the owner of the property and pay them the rent. Rather the respondent himself raised the issue before such authorities that the property in question belonged to the Custodian, and prayed that the title of the appellant to the case, be struck down and it be transferred to him.
Upon this prolonged litigation ensued and finally the dispute was set at rest by the order of this Court as mentioned by me earlier. On top of it the document declaring this property as non- evacuee, much before the commencement of the tenancy. Was managed to remain untraced with the result that the appellant had to face litigation for years together and finally it was unearthed with the efforts of the High Court. Furthermore, as pointed out earlier the respondent also executed lease deed in favour of the appellant in the year 1965 an effort to provide safeguard to his tenancy in case he finally failed to retain this property as owner, but when in 1966 P. T. D. Was issued to him, he stopped the payment of rent. In this way, he - continued his efforts to set up the .
Title of ownership to the property adverse to his landlords interest. 1n such circumstances, the discretion of the Rent Controller, which is always to be exercised to promote the ends of justice, had become circumvented and he had no option but order respondents ejectment on the principle of for--feiture of tenancy. The argument of Mr. Muqim Ansari, is therefore, untenable in law.
For the foregoing reasons, I allow this appeal with costs set aside the order of the Rent Controller dated 30th December, 1980, and direct that the appellant shall be put in vacant possession of the house in dispute within four months from the date of this order subject to the payment of rent in the Court of Rent Controller, Quetta, on or before fifth day of each succeeding month.