1. SHAH NAWAZ KHAN, J -The suit of Cantonment, Kohat' care of Executive Officer, Kohat for the ejectment of Muhammad Islam Khan (present petitioner) from shop No. K. C. S. 22-80, situated outside Shah Faisal Gate, Kohat Cantonment, was decreed by the Civil Judge, Kohat, in favour of plaintiff with costs. Muhammad Islam Khan moved the District Judge, Kohat, against the judgment and decree of the trial Court, but there too he failed; and the learned District Judge dismissed his appeal. Muhammad Islam Khan then went to the High Court at Peshawar and in Civil Revision No. 14 of 1979, he challenged the judgments and decrees of the two Courts below praying that the same may be set aside. A learned Judge of the High Court dismissed the said revision petition of the present petitioner by holding that he was liable to be ejected, and further that he was not entitled to claim any compensation for the improvements that he had made.
2. Muhammad Islam Khan has now come up to this Court with the present petition under Article 185
(3) of the Constitution with the prayer that leave be granted to him to appeal against the said judgment on the Peshawar High Court dated 23-12-1979. The main grounds on which the judgments of the High Court and the lower Court have been challenged are that Civil Court had no jurisdiction to entertain the suit under the Rent Restriction Ordinance, and. Therefore, the order for the ejectment of the petitioner was wrong. It was further contended that a notice under section 106 of the Transfer of Property Act was necessary before the institution of the suit for ejectment in a Civil Court. Another objection, which has been taken by the petitioner is that the property in question was formerly an evacuee property and that on its acquisi--tion by the Cantonment Board a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, should have been served on the present petitioner before a case for his ejectment was instituted, and lastly that the petitioner has raised superstructure on the suit property and as such he was entitled to compensation for the improvements he had made.
3. When the suit was instituted before the trial Court, it was contended that the relationship of landlord and tenant did not exist between the parties, and that the Civil Court had no jurisdiction to entertain the suit because the lease in favour of the petitioner had not been extended. The Cantonment Board had instituted the suit on 7-9-1977 in a Civil Court for the ejectment of the petitioner on the ground that the petitioner had been given quit notice, which fact was not denied by the present petitioner in his written statement. Another ground, which was taken, was that the petitioner had earlier been given lease for three years on the Ist of July, 1970, and thereafter there had been no extension. Non-payment of rent was also urged and it was contended that the present petitioner had denied the title of the Cantonment Board. Nuisance was also alleged because the petitioner used to park trucks contrary to what had earlier been agreed between the parties. The property in question had been given to the petitioner for use as transport office but he used it for several other purposes. The Civil Judge decreed the suit on three, grounds;
(i) Denial of title
(ii) Non-payment of rent, and
(iii) Quit notice.
4. The District Judge dismissed the appeal on the High Court also held that the Cantonment Board has no jurisdiction to entertain this litigation, and that the suit has been properly instituted in the Civil Court.
5. While arguing this case, the learned counsel for the petitioner frankly conceded that the Civil Court had the jurisdiction over this case and that he would have no ground on that score to press. His main contention was about the compensation. He contended that in fact, he never agreed with the Cantonment Board that he will not claim compensation, but when he was referred to document Exh. P. W/M, whereby the petitioner had agreed that he would not claim any compensation, the counsel for the petitioner submitted that he had no ground to press. The perusal of letter No. 69/1/C/1730 dated the 16th May, 1970, would show that the Cantonment Executive Officer, Kohat, had informed the petitioner that his original lease would expire on the 30th of June, 1970 and that it was proposed by the Cantonment Board to raise the rent to Rs. 70 per month with effect from 1-7- 1970. If the petitioner agreed to pay that amount, then he could retain the shop in his possession and the lease would be renewed in his favour for a further period of three years. In case, he was not prepared to pay that rent then office be informed so that the shop may be disposed of through open auction.
6. In March, 1965, Muhammad Islam Khan submitted an application '"addressed to the Cantonment Overseer, Kohat wherein he prayed that he may be permitted to construct a room in the premises of shop No. KCB-80 at his own expense. The Cantonment Executive Officer, Kohat, replied vide letter No. 6/14/19/C/295 dated 11-3-1965, whereby he was permitted to con--struct a room in the suit shop area at his own expense on a clear understand--ing that structure of the newly constructed room will be the property of the Cantonment Board and on vacating the shop, he will not demand any compensation for the new room. That condition was accepted by Muhammad Islam Khan.
7. From the above discussion it will appear that Muhammad Islam Khan could not take this plea of jurisdiction, but the case had to go the Civil Court through a separate suit. As indicated above Muhammad Islam Khan did not plead in his written statement that he was a tenant or he was, not refusing to pay rent. As the petitioner did not take up the plea that he was a tenant nor he said that he had been accepted as a tenant, therefore, no issue on that score could be framed. Previous suit was a notice within the meaning o section 106 of the Transfer of Property Act as held in Umar Din and 3 other v. Ch. Fazal Din (PLD 1978 Lah. 193). Moreover, the petitioner had denied the title of Cantonment Board and did not pay the rent. The two Courts below decided the fact against the petitioner. The suit for ejectment was instituted first and the suit for the recovery of rent was instituted later. The ejectment decree was passed in favour of the Cantonment Board, but the suit for recovery of rent is still pending, In the suit for ejectment, defendant's denial of plaintiff's title in property can operate as forfeiture and dispense with notice under section 106 of the Transfer of Property Act. In the initial case forfeiture has not been waived. The forfeiture bad occurred, and the acceptance of the rent, if any, by the Cantonment Board, thereafter would not show that there was an intention to treat the lease as subsisting.
8. For the reasons given above, we do not grant leave to appeal and this petition is consequently dismissed.
9. At the last leg of his arguments, the learned counsel for the petitioner made a request for the grant of some time for vacating the suit shop. He is granted two months' time for that purpose, but he will have to pay compensa--tion for use and occupation for these two months to the Cantonment Board, Kohat, at the rate of Rs. 200 per month. He is also directed that the order passed by a Judge of this Court on 26-7-1980, shall be adjusted, accordingly, and instead of Rs, 500 per month the petitioner shall be liable to pay Rs. 200 per month to the Cantonment Board, Kohat.