1. HAMOODUR RAHMAN,C. J.----This appeal, by special leave, arises out of a suit filed by the respondent No. I and the predecessor-in-interest of the other respondents against the appellants for arrears of rent, ejectment, mesne profits and a mandatory injunction for the demolition of certain unauthorised con--structions on Plot No. 6515, Lawrence Road, Garden West, Karachi.
2. The allegations upon which this suit was brought were that the appellants, who were in possession of plot in dispute as tenants under a deed of lease executed on the 8th of June 1955, between them and the previous owners of the land bad, in breach of the covenants of the lease, raised unauthorised construction on the said plot and were refusing either to vacate the plot or to pay the rent for the same, in spite of repeated notices.
3. The previous owners of the plot were Burjor Manchersha Wadia and Temul Mancheresha Wadia, both Parsee adults, who had themselves purchased the plot in dispute along with other properties on the 27th of November 1947, from one, R.I Sahib Hira Lal. The latter bad acquired these properties including the plot in dispute under a grant given by the Government by a Sanad, dated the 2nd of November 1945. This grant gave a transferable and a heritable occupancy right to the grantee according to the provisions of section 133 of the Bombay Land Revenue Code, 1879 end was, inter alia, subject to the following condition :- "If you will at any time fail to observe or fulfil any of the conditions of this grant above set out you shall forfeit to Govern--ment all your rights under this grant, and your right and title to any building- materials, or crops or produce on the said piece of land at the: time of such failure, and it shall thereupon be lawful for the Collector to eater upon and take possession of the said piece of land, with any such buildings, materials, crops or produce on the same, and the said piece' of land with such buildings materals, crops and produce shall, from the time of such failure, vest in the Karachi Administration absolutely, free and discharged from all encumbrances of any kind what-- soever created on the aid piece of land, buildings, materials, crops and produce by you."
4. The case of the plaintiffs in the suit was that at the time of their purchase they were not informed by their vendors that there were any unauthorised constructions on the land in dispute. 1n fact, according to the deed of agreement executed on the 8th of June 1955, between their vendors and the present appellants the land demised was only an "open Plot No. 65/5, Garden West" for which the monthly rent reserved was Rs. 100, according to the English calendar month commencing from the 1st of July 1955, exclusive of rates and taxes.
5. Clause 3 of this agreement, however, provided :- "That the lessee shall not erect any construction of permanent nature on the said open plot. In case they construct or have constructed any constructions of temporary nature, they shall abide by the rules and regulations of the Karachi Municipal Corporation and the City Deputy Collector's Office or any other Government or public body and shall be personally responsible for any such breach thereof. In case the lessor suffers any loss or damage due to the breach of any such rules or regulations by the lessees, they shall indemnify the lessor against all such losses, damages and detriment."
6. Subsequently on coming to know of the unauthorised con--structions the plaintiffs in the suit wrote to the City Deputy Collector on the 19th of February 1960, referring to a notice said to have been issued by the Deputy Collector to their pre--decessor-in-interest on the 16th of January 1954, being Bi, CTS/171 of 1954, requiring the removal of unauthorised con--structions, and pointing out that although the previous owners had approached the Deputy Collector with the request that the unauthorised constructions may be removed by him at their cost, the matter was not pursued any further. The plaintiffs according--ly requested the City Deputy Collector to take necessary legal action for the removal of the unauthorised constructions.
7. They were informed by the City Deputy Collector by his letter of the I 9th of April 1960, that several notices for removal of unauthorised constructions had been issued to the previous owners and the matter was now in the last stage of taking pro--ceedings for the forfeiture of the grant. It was also pointed out that under the terms and conditions of the grant it was the responsibility of the grantee himself to have such unauthorised constructions removed, but the plaintiffs were given a final chance to do so within 15 days from the receipt of that letter. This was followed by a second notice, dated the 1st of September 19t0, from the City Deputy Collector giving the plaintiffs a final period of 15 days from the said date for the removal of the unauthorised constructions. Failing which the City Deputy Collector threatened that the grant would be forfeited to Government.
8. The appellants contested the suit denying that they had put up any constructions on the plot in question. According to the appellants the constructions were already there in 1948 when they came into possession of the plot. The agreement was a mere device by the Wadia Landlords to avoid the possibility of a forfeiture of the grant. Indeed, although the previous rent was Rs. 32 per month only, the rent fixed by the agreement was Rs. 100 per month in view of the constructions already there. They further maintained that the plaintiffs were fully aware of the constructions on the plot at the time of their purchase and were, as such estopped from raising any objection to the con--structions or demanding their demolition. The plaintiffs, it was suggested, had adopted these tactics merely to enhance the rent. In any even, it was contended that the plaintiffs were not only estopped but must be deemed also to have waived and acquiesced in the breach, if any committed by the raising of the alleged constructions in view of the fact that their own predecessors-in---interest had accepted rent from the appellants knowing full well of the constructions on the land in dispute.
9. In further proof of the fact that the structures existed from before the purchase of the plaintiff, the appellants pointed out that in 1954 the Karachi Municipal Corporation had filed a criminal complaint No. BS 152/54 against the appellants for the alleged unauthorised constructions on the plot but the appellants were acquitted in that case on the ground that the constructions existed on the plot since before 1948. The appellants also challenged the right of the plaintiffs to demand any rent in excess of Rs. 100 per month, which they said that they were always ready and willing to pay and had, in fact, tendered by money order but the plaintiffs had refused to accept the same.
10. Both sides adduced oral as well as documentary evidence in support of their respective cases, but the trial Court dismissed the suit with costs, even though it held that the rate of rent was Rs. 100 p.m. And the present appellants were ready and willing to pay this rent. The trial Court was of the opinion that the constructions had been made on the land before the execution of the agreement of 1955 and, therefore, the deed of agreement itself was a mere "camouflage" to hide the true nature of the tenancy and the constructions. In the circumstances, the previous landlords as well as the plaintiff must be deemed to have waived their right of ejectment on the ground of unauthorised constructions by accepting rents from the appellants with the knowledge of the constructions. In any even, ejectment could not be ordered without the permission of the Rent Controller in view of the fact that the tenancy was admitted.
11. From this decision the plaintiffs went up in' appeal which was heard by the Additional District Judge, Karachi, who after examining the evidence and himself inspecting the site, reversed the decision of the trial Court mainly on the ground that the deed of agreement of the 8th of June 1955, the execution of which was admitted by the appellants, did not show that at the relevant time there were any constructions of any kind on the plot in question. The appellants were therefore, estopped from leading any evidence in rebuttal of this fact In this view of the matter, the appeal was partially allowed, although the plaintiffs were held to be disentitled to seek the ejectment of the appellants on the admission of their own counsel they were granted a decree for mandatory injunction for the demolition of the structures, which were admittedly un--authorised, and for arrears of rent. The liability for the latter was actually admitted by the appellants who had even deposited Rs. 8,400 in the Court on this account.
12. A second appeal from the above was summarily dismissed by a learned Single Judge of the then High Court of West Pakistan, Karachi Seat, in whose opinion no point of law was involved in the matter.
13. Leave was granted in this case to consider whether the sum--mary dismissal was justified in view of the fact that the following questions of law did arise for consideration, namely:-
(1) Whether an assignee of a landlord could sue for a breach of a covenant in the lease which took place before assignment ?
(2) Whether clause 3 of the deed of agreement executed on the 8th of June 1955, did not by itself indicate, upon a proper construction, that constructions of a temporary nature were already there on the land ?
(3) Whether the said clause 3 of the agreement, upon a proper construction, altogether prohibited the setting up of constructions of any kind ?
(4) Whether a mandatory injunction could be granted for a breach of a covenant in a lease, and
(5) Whether the plaintiffs in the suit were barred by waiver, acquiescence and laches from asserting their claim for a mandatory injunction ?
14. Learned counsel appearing in support of the appeal has also sought to contend that the learned Additional District Judge had not considered the evidence regarding the existence of the structures from before the execution of the deed of agreement, on the ground that the appellants were estopped from challenging the recital in the deed itself to the effect that the demise was only of an open plot of land.
15. It is no doubt true that the learned Additional District Judge has not gone into the evidence regarding this question except for saying that the earlier notice of the Deputy Collector issued in 1954 for the demolition of the unauthorised structures had actual--ly been put into effect by the demolition of the structures then existing at the cost of the then landlords as requested by the Wadia Landlords themselves. If the structuers had been pulled down, the prosecution was also liable to fail and end in the acquittal of the appellants. The learned Additional District Judge found support for this from the recitals in the agreement of lease dated the 8th of June 1955, which purported to demise only an open plot of land. The constructions now complained of, there--fore, were, in the opinion of the learned Judge, put up afterwards by the appellants.
16. His own inspection also revealed that there were several cattle sheds in a moribund condition on the plot which may have been used for the purpose of keeping cattle in the past before the Karachi Municipal Corporation ordered the removal of cattle from the Karachi Municipal area. There was, according to this inspection note, also one small block which was used for the purposes of residence of the present appellants, while the rest of the area, covering nearly 14,000 square yards, remained unutilis--ed. There is force in the contention that this case has not received proper consideration in the Courts below. The trial Court did consider the evidence regarding the constructions and came to the conclusion that the constructions were there from before the execution of the lease of the 8th of June 1955. It found support for this view also from the fact that in 1954 the Deputy Collector was trying to get the unauthorised constructions demolished and in the same years the Karachi Municipal Corporation had started a prosecution against the appellants for the alleged unauthorised constructions which ended in their acquittal. The evidence of Iqbal Ahmad Khalili, Building Inspector, Karachi Development Authority, shows that the prosecution ended in acquittal, but there is nothing on the record to show on what ground the acquittal was ordered. The only evidence in this behalf is that of Haji Anwar, defendant No. 1, himself who stated that he was eventually acquitted on his plea that the constructions existed prior to his occupation of the property and that he had not raised the alleged unauthorised constructions. The trial Court accepted this statement, as, in its view, it also received support from the recital in clause 3 of the deed of lease of the 8th of June 1955, which only provided that in case the tenants construct or "have constructed any construc--tions of a temporary nature", they shall abide by the rules and regulations of the Karachi Municipal Corporation. The use of the words "have constructed", according to the trial Court, was an ingenious device for covering up the unauthorised constructions which were already on the land. Having come to this conclusion the trial Court also found no difficulty in holding that the previous landlords were fully aware of the fact that the constructions were already there and, therefore, not only they but their successors-in-interest, namely, the present respondents, were also estopped from enforcing any breach of the covenant prohibiting the making of unauthorised constructions.
17. In dismissing the suit in toto the trial Court however, forgot that the tenancy was admitted and that it was also admitted that the appellants were liable to pay rent at Rs. 100 per month. The evidence had also established that no rent had been paid to the present landlords. In the circumstances, the landlords-- plaintiff's were certainly entitled to a decree for arrears of rent.
18. So far as the decree refusing ejectment is concerned, the respondents never appealed therefrom, as their counsel had himself conceded in the trial Court that he was not entitled to ejectment.
19. The first appellate Court, on the other hand, did not take into consideration clause 3 of the agreement of lease dated the 8th of dune 1955, but relying on the recital in the second paragraph of then agreement that the demised premises was "an open plot", came to the conclusion that the appellants, who had admitted the execution of the agreement, were bound by that recital and they could not lead oral evidence to contradict the same. Having held this the appellate Court did not go into the other questions regarding waiver and acquiescence nor did it consider it necessary to examine the evidence regarding issue No. 8 which specifically raised the question as to whether the defendants had constructed `the unauthorised constructions or the same existed prior to their occupation.
20. So far as the decree for arrears of rent and the decree rousing ejectment are concerned, there was no dispute, as both were passed by consent of the parties. The other questions, however, had still to be decided but in second appeal the High Court unfortunately dismissed the appeal in limine on the erroneous belief that no questions of law arose for decision.
21. The question which has now to be decided in this appeal is whether the plaintiffs-landlords (now respondents) were entitles: to the relief by way of mandatory injunction granted to them by the first appellate Court.
22. The first point that has been argued on behalf of the appellants is that assuming that there were no structures in 1955 but that they were put up after the execution of the deed of agreement of the 8th of June 1955, but before the transfer in favour of the present Landlords on the 20th of August 1959, were the present landlords, as assignees, entitled to enforce a breach of a covenant which had occurred before the date of assignment'? In support of the contention that the structures had been built before the assignment in 1959 strong reliance is placed upon the notice issued by the present landlords on the 10th of November 1959, by which the appellants were called upon to remove the unauthorised constructions immediately as also on the letter written by tic present landlords on the 19th of February 1960, to the City Deputy Collector wherein they appeared to have taken up tree position that the unauthorised constructions existed froth the time of the previous owners who had actually approached the City Deploy Collector with the request for having, tae same demolished at their cost, but nothing was clone. The respondent No. 1 himself in his cross- examination also admitted that all the constructions existed when they purchased the plot. This certainly establishes that the constructions were, at any rate, there when the present landlords purchased the premises.
23. Learned counsel appearing in support of the appeal, there--fore, contends that in law the present landlords were not, it, any event, entitled to enforce a breach which hail occurred before the assignment in their favour. In support of this contention reliance is sought to be placed on certain observation of Neaman, J. In the case of vishveshrar Wighneshvar Shastri v.Mahableshvar Subhu Bhatta (AIR 1918 Bom. 79), that under the Transfer of Property Act where there is a transfer simpliciter of the reversion; the, transferee mustwait for a breach of a condition subsequent to the transfer before he can sue to enforce a forfeiture, for the transfer in such cases is no more than the transfer of a right to sue the lessee and turn him out.
24. This view cannot, however, be accepted, as section 109 of the Transfer of Property Act clearly contemplates passing to the transferee of a leased property all the rights of the transferor and it is now well-settled that such a transfer passes to the transferee all the rights under covenants which run with the land, as was pointed out by Beaumont, C. J., in a subsequent case of the Bombay High Court itself; vide Abdur Rahman Mohamud Yusuf and others v. Phirozw Cursetji Sethna and others (AIR 1936 Bom.88).
25. The question, therefore, that arises for consideration is as to whether a condition of the nature provided for by clause 3 of the agreement of the 8th of June 1955, is merely a personal agreement or a covenant running with the land. Strictly speaking, this question is not very relevant for the purposes of the present case, since there is no question now of the forfeiture of the lease. The only question is as to whether there could be a mandatory injunction for demolishing the alleged unauthorised constructions. But since this question has been raised, it has to be pointed out that under the Transfer of Property Act the word "condition" used in clause (g) of section 111 does not carry the same sense as a covenant under this section would entitle the landlords to forfeit the lease if it is coupled with an express stipulation for re-entry. The general rule of construction is that a breach of a condition does not involve a forfeiture unless B the lease expressly so provides. Thus if there is an express covenant in the lease to pay rent as also a proviso for re-entry, then non- payment of rent will support a forfeiture, but in the absence of such an express proviso, forfeiture cannot be enforced.
26. In the present case, it has to be pointed out that the agreement of the 8th of June 1955, not only does not contain any express proviso for re-entry but it actually stipulates in clause 3 itself that "in case the lessor suffers any loss or damage due to the breach of any such rules or regulations by the lessees, they shall indemnify the lessor against all such losses, damages and detriments." It is evident, therefore, that the breach of such a covenant would not entitle the landlords to enforce a forfeiture of the lease itself, but since that question does not arise for consideration here we need not pursue it any further, particularly, since no appeal has been filed by tie respondents against the decree refusing ejectment.
27. The contention of the learned counsel, however, regarding the rights of an assignee of a lease, is wholly untenable. There is no law or authority in support of the proposition that the assignee cannot enforce a breach of a covenant which runs with the land if the breach has occurred before the assignment. Section 109 of the Transfer of Property Act gives to the assigned such a right and he can enforce a prior beach if there has been no waiver or acquiescence.
28. The next question, therefore, that arises for consideration is as to whether there was any such waiver or acquiescence by the present landlords which would disentitle them to claim the relief by way of a mandatory injunction. Learned counsel appearing for the appellants has not been able to show us anything from the record to support his contention that the present landlords, lead, in any way, acquiesced in or waived the breach. In fact, the evidence shows that right from November 1959, soon after the assignment in their favour, they had been demanding the removal of the unauthorised constructions. It is contended, however. That if any waiver or acquiescence had taken place by their transferor, the Wadias, the transferees would also be bound by them. In support this contention reliance is, of course, placed on the notices of tire City Deputy Collector, Karachi, which were issued in 1954 for demolition of the unauthorised structures; tire prosecution launched by the Karachi Municipal Corporation in respect of certain unauthorised structures, the use of the words "have constructed" in clause 3 of the agreement of the 8th of June 1955 and the issuance by the previous landlords of certain rent hills wherein it has not been mentioned that the demised premises is an open plot, vide, Exhs. D/25 and D/29 to D/58. D/25 is for the month of July 1956, but D/29 is for the month of December 1956. The other receipts are for subsequent periods. f)/25, which is for the month of July 1956, however, shows that the demised premises is described therein as an open plot. The rent bills for the months of October and November 1956, and earlier periods also showed the demised premises to be an open plot. The mere fact that in some rent bills the Wadia landlords had not expressly mentioned that the demised premises is an open plot of land, is not by itself sufficient to show that they had acquiesced in or waived the breach of the covenant prohibiting the setting up of unauthorised constructions on the land. Indeed, if it is correct that they had in 1954 actually written to the City Deputy Collector to have the unauthorised constructions demolish--ed at their cost, it would rather seem to indicate that they were not waiving the breach of the condition regarding construction of unauthorised structures on the land.
29. 'The evidence in this connection of the City Surveyor, Karachi, Mr. Muhammad Ali Khan, who was speaking with reference to files concerning the plot in dispute from the year 1957 onwards, is important. It shows that they had noticed the unauthorised constructions only in 1959 and that there was no file regarding unauthorised constructions previous to that year.
30. The evidence of the respondent, Haji Jamil Ahmad, is also to the effect that the previous landlords had told them that they had let out only the open plot and that they had not given any permission to raise any structures thereon. In cross-examination no doubt, he admitted that the constructions complained of were there when they purchased the plot but again this evidence is not by itself sufficient to establish waiver and acquiescence. Toy constitute waiver there must be shown some positive act indicating an intention to consciously give up a right which was otherwise available, There is nothing on the record here to establish such a conscious giving up of any right either by the present landlords or by the previous landlords. Indeed, the evidence, if anything, is to the contrary.
31. The words in clause 3 of the agreement of the 8th of June 1955, on which strong reliance has been placed by the learned Counsel for the appellants, are no doubt somewhat misleading but its obvious purport is to stipulate that the lessees would not put up any unauthorised constructions of even a temporary nature. 7here is no dispute in the present case that the constructions were put tip without the sanction of the Municipal Corporation and were clearly unauthorised constructions.
32. The question, therefore, that has now to be determined is whether even so, the present landlords were entitled to have them demolished.
33. Before taking lip this question it leas also to be pointed out that on the evidence there is nothing to support the contention of the appellants that the constructions existed from 1948 or, at any rate, from before 1955. The evidence of tile City Surveyor is to the effect that the constructions were noticed in 1959. The mere reference, therefore, to the earlier demolition notices of 1954 and the prosecution of 1954 does not establish that the constructions complained of in 1954 were the same that were being complained of now. It is not unlikely that further constructions may have been put up after the execution of lease but before the transfer of the property in favour of the present landlords.
34. So far as the relief by way of a mandatory injunction is concerned, it has to he pointed out that though the Courts are reluctant, except in very special circumstances, to order a defendant to pull down a building erected in breach of a covenant, there is no rule which prevents the Court from granting such a mandatory relief even though the injury sought to be restrained has been completed before the commencement of the action. 1t generally granted upon the same principles and subject to the t--wine conditions as a perpetual injunction. Thus if the injury can be otherwise compensated, the Courts will not normally make such a drastic order. Where, however, the result of not making such an order would be to cause an irreparable loss or injury to the other side, the Court would undoubtedly have the power to order even the demolition of structures unauthorisedly constructed in breach of covenant.
35. In the present case, we have no doubt that the landlords were, under the terms of their own grant by the Government, liable to have their grant forfeited if they did not remove the unauthorised constructions as they were called upon to do by the City Deputy Collector by his notices of the 16th of April 1960, the 1st o f September 1960, and the 16th of December 1960. The non-- removal of the unauthorised structures would thus have resulted in the landlords themselves losing their rights in the land and being totally deprived of the enjoyment of their property. They were, therefore, in our view, entitled to insist upon the removal of the structures to prevent such an irreparable injury being caused to them.
36. For these reasons we have, after careful consideration off' all the facts and circumstances of the case, come to the conclusion that this appeal must fail. The appeal is, accordingly, dismissed but since the appellants had been compelled to come to this Court by reason of the fact that their case had not been considered properly by the Courts below, we make no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.