MAHMOOD A. KHAN, J.---This is a suit for declaration, cancellation of document, possession, mesne profit/usage charges of Rs.9,94,85,009.76/-, compens ation and damages of Rupees Fifty Million wherein it is averred in the plaint that due to expiry of five years lease on 30th September , 2007 the previous lessor of PWD/Khaliq Raza Khan i.e. defendant No.2 was not competent to pass on, renew or convey better title than what he himself possessed in favour of defendant No. 1. That consequent to expiry of lease by PWD, the defendant No.2 could not get the lease renewed by PWD, hence due to maturity and expiry of lease due to efflux of time in favour of defendant No.2, the same was revoked and cancelled by PWD, where after the defendant No.2 had lost all his rights, benefits and title to transfer or convey the suit property . That after cancellation of lease, the plaintif f and other several interested persons applied for lease of subject property and finally on payment of requisite premium the plaintif f had executed lease for twenty years expiring in September , 2027 and acquired ownership of said petrol pump site as per the terms and conditions contained in a fresh lease. That out of 1736 square yards, had taken over possession of 736 square yards however the remaining portion of 1000 square yards which was/is under enjoyment and occupation of POL dispensing business was not hande d over by the defendant No.1 as defendant No.1 is not entitled to retain the property for any term other than the basic lease, yet on 26.08.2003 the defend ant No.1 had executed 15 years lease with defendant No.2 knowingly that neither the defendant No.2 was competent to pass on nor the defendant No.1 was legally competent to obtain a better title other than what the defendant No. 2 himself had in his favour .
That the plaintif f had repeatedly requested the defendants Nos. 1 and 2 to handover peaceful and vacant possession and served notices to pay up-to-date mesne profit and usage charges but the defendants neither had never denied the claim of the plaintif f and had impliedly accepted the stance of the plaintif f but failed to handover the possession nor paid the due amount. That the plaintif f served a notice to the defendant No.1, in response whereof the defendant No.1 admitted that the previous management had deliberately overlooked the original remaining lease years in favour of the defendant No.2 and had excuted Fifteen years tease which was executed due to oversight and advance rent was also paid by the defendant No.1 to defendant No.2. Following prayers have been made; 1) Declare that by virtue of lease deed dated 30 September 2009, the plaintif fs are owners of suit property viz PWD leased land situated at PSO Petrol Pump, Road Junction, Dadabhoy Nauroji Road and Kashmir Road, Karachi ("suit property"), ad-measuring 1000, square yards or thereabout.
2) Declare that the defendant No.2 was not competent to transfer , convey the suit property nor the defendant No.1, was competent to obtain the said property with defective title and retain, occupy , possession and to continue business at the suit property , subsequent to 30 September 2007 and till date.
3) Declare that by efflux of time, the expired lease executed by defendant No. 2 and in favour of defendant No.1 for 15 years, is ab-initio void null and be cancelled with direction with a copy of decree to the Registrar concerned to effect notice of such cancellation w .e.f. 30 September 2007 in his record.
4) Direct the defendant to hand over peaceful vacant possession of the suit property to the plaintif fs. AND OR in alternate, appoint Nazir to take over the suit property and hand over the possession of the same to the plaintif f.
Direct the defendants to pay to the plainti ff mesne profit/usage charges amounting to Rs.9,94,85,009.76/- w.e.f. 30 September 2007 till 30 September 2014, with 10% increment per annum until the suit property is handed over to the plaintif f.
Award Rs.50 Million (or equivalent value of gold on 30 September 2007) damages w.e.f. 30 September 2007, jointly and severally against the defend ants and their employees responsible to cause loss/damage to the plaintif f/partners and mental torture, harassment to the invalid and physically handicapped partners of the petitioner .
7) Grant actual, penal and compensatory cost of the suit under sections 35 and 35-A, C.P .C. (PLD 2010 Kar . 182 ).
8) Any other better relief(s) deem fit and proper by this Hon'ble Court.
2. The defendant No.1 filed the written statement wherein it is stated that the partners of the plaintif f firm are real sons of the defendant No.2 and the suit is a collusive suit just to pressurize and harass the defendant No.l. That the subject plot was taken on rent by the defendant from defendant No.2 well before the date i.e. 30.08.2007 through a registered lease deed dated 26.08.2003 for a straight period of fifteen years at monthly rent of Rs.60,000/- on five yearly advance basis with 10% increase after every five years. That the entire rental amount till the ending period of the lease i.e. 17.08.2018 have already been paid by the defendant No.1 to the defendant No.2. That the said lease deed in favor of PSO is still intact, valid and legal. That the defendant No.1 is legally in possession of the plot in question measuring 1108.33 Sq.yds as the said lease deed is duly registered. That the defendant No.1 has been in uninterrupted peaceful possession of the plot in question since 1967 and has built thereon the entire infrastructure of a petrol/fueling station etc. That the plaintif f has questioned the authority of defendant No.2 for executing lease with the defendant No.1, however the plaintif f has never initiated any action against their father/defendant No.2 at any forum which clearly proves their collusiveness. That the defendant No.2 himself tried to submit the plaintif f's referred letter dated 14.09.2014 to the defendant No.1 asking it to pay rental amount to his sons/plaintif f despite the fact that the entire rental amount has already been received and encashed by him till the ending period of the lease. That after voluntarily withdrawing from earlier notices by the plaintif f, the defendant No.2 again changed his mind and made an attempt to extort undue and extra rent from the defendant No.1 and defendant No.2 himself approached to defendant No.1 carrying notice dated 14.09.2014 and held meeting with officials of the defendant No.1 wherein he was reminded of his obligations under the lease deed executed by him in favour of the defendant No. 1. That neith er any cause of action was accrued to the plaintif f against the answering defendant nor the plaintif f has suffered any financial loss as the petrol pump situated at the suit property is 100% financed/invested by the defendant No.1 which is being run by the real father of the partners of the plaintif f firm/defendant No. 2 who are enjoying all the financial benefits of the suit property . It is prayed that the suit may be dismissed with heavy cost.
3. Defendant No.2 also filed his written statement, wherein it is stated that since last over several years the defendant No.1, send the documents for renewal/extension of their lease after due vetting and scrutiny as per their self-made terms and conditions so drafte d by the defendant No.1, however it was pointed out to the defendant No.2 that how could the answering defendant extend the lease beyond the original lease in favour of defendant No.2 but the defendant No.1 responded that it is a formal practice which is in vogue with all other pumps in Karachi hence there is no bar in renewal of lease, as such the lease was extended by mutual consent. That the PWD had enhanced the lease renewal premium which was not affordable to the answering defendant hence the five years w.e.f. 30.09.2002 till 30.09.2007 was matured and revoked by PWD and the answering defendant had to surrender the leasehold rights back to the lessor PWD, where after the defendant No.2 had no control over the PSO pump site. It is admitted that the plaintiff did approach the defendant No.2 to handover the vacant possession but since the defendant No.1 was in occupation of the suit property and the defendant No.2 had no locus standi therefore the plaintiffs were advised to approach the defendant No.1 for handing/ taking over of the suit property as the defendant No.2 was merely a dealer and acting on behalf of the defendant No. 1. It is denied that the defendant No.2 had fraudulently executed the lease. The legal experts of the defendant No.1 had approved the execution of the lease only thereafter the lease was executed and till date no anomaly was ever communicated by the defendant No.1 to the defendant No.2. That if the defendant No.1 vacates and handover the possession of the suit property, the answering defendant would not be in a possession to retain the same in the capacity as a dealer of the defendant No. 1. That subsequent to cancellation of lease due to efflux of time, the defendant No.2 had lost his rights and interest in the PWD land/petrol pump site. The PWD had granted the fresh lease to other independent legal entity/applicant/lessee i.e. the plaintiffs who have now acquired the leasehold rights subsequent to his cancellation of lease with PWD, however the defendant No.2 has no concern with the rents if any settled between the plaintiffs and the defendant No. 1 . It is prayed that the suit may be dismissed.
4. On 25.04.2018 from the pleadings of parties, following issues were framed:-
1. Whether the suit for possession of suit property against defendant No.1, a tenant is maintainable?
2. Whether in the plaintif f firm namely Messrs Ahmed Brothers, all the partners are real brothers and defendant No. 2 is real father of all the partners? If yes, its ef fect?
3. Whether defendant No. 2 has realized the entire rent for the period of 15 years from 18.08.2003 to 17.08.2018, if yes its ef fect?
4. Whether by virtue of lease deed dated 30.9.2009 the plaintif fs firm is the owner of the suit property?
5. Whether the tenant can be ejected by new owners, who acquired the property on 3.9.2009 without application of Rent Laws?
6. Whether the plaintif fs are entitled to mesne profit in terms of Para-13 of the plaint and damages as claimed in terms of prayer clause No. 6?
7. Whether the plaintif f and his other brothers, and father executed partnership deed dated 07.05.2009?
8. Whether the defendant No. 2 real father of the partner of plaintif f firm has informed defendant No. 1 about cancellation of lease given by PWD? If yes, its ef fect.
9. What should the decree be?
5. After framing of the above issues, learned counsel for the plaintif f filed an application for amendment of issues on the ground that the above framed issues are out of pleadings. Learned couns el for the defendant No. 2 also supported the contention of the learned counsel for the plaintif f whereas the learned counsel for the defendant No.1 contended that the issues framed are in accordance with the pleadings. Learned counsel for the defendant No.1 was called upon to show the denial of factual elements in the pleadings requiring evidence, if any present, to which after showing portions of the written statement and alleging collusion between the plaintif f and defendant No.2 eventually conceded to their being none present, so also on account of the lease period already having expired.
Learned counsel for the defendant No.1 further contended that the dispute as to the jurisdiction of a Civil Court in such a case is made out as the same is within exclusive jurisdiction of the Rent Controllers in matters relating to the landlord and tenant whereas learned counsel for the plaintif f as well as learned counsel for the defendant No.2 contend that no documents have been denied as such there is no factual controve rsy present between the parties.
Eventually the learned counsels agreed that in this matter there being no factual controversy and the matter can be decided on the basis of hearing on the following legal issues:-
1. Whether this Court has jurisdiction in the matter in presence of the exclusive jurisdiction as provided under Sindh Rented Premises Ordinance, 1979?
2. To what relief the plaintif f is entitled to?
6. Learned counsel for the plaintif f contends that the prayers of the suit do not cover the element of relationship between the landlord and tenant as such the matter is not to be dealt under Sindh Rented Premises Ordinance, 1979. It is further contended that the plain tiff in this matter having not acquired the subject premises as successor- in-interest of the defendant No.2 who was earlier landlord of the defendant No.1, as such is not bound to any understanding as created between the earlier person holding lease and his tenant as such there is no relationship of landlord and tenant existing between the plaintif f and defendant. The suit is for possession of the subject property . It is further contended that the rights where the same are acquired from the earlier owner are liable to be dealt with under Sindh Rented Premises Ordinance, 1979 as the same are in continuation of rights whereas in this case the plaintif f is standing on his own independent right and as such cannot be restricted to the provisions of Sindh Rented Premises Ordinance, 1979.
7. Learned counsel for the defendant No.1 however contends that in the written statement at Para-6 a letter has been written by the plaintif f wherein earlier legal notices were offered to be withdra wn provided dealership is given in favour of plaintif fs. It is however frankly conceded on the basis of pleadings present that the said offer was not accepted by the defendant No.1. It is also contended that the award of dealership is an exclusive right of defendant No.1. It also contended that after expiry of lease the defendant No.1 had issued cheques in the name of Ahmed Brothers the plaintif f with mala fide had not en-cashed the same and on the failure of said encashment, the defendant No.1 are proceeding to depos it the amount in M.R.C. with the Rent Controller . That the position in the matter is to be considered in respect of the time when the suit was filed and as the lease at the said time had not expired, the suit itself is not maintainable. That the relationship of defendant No.1 being of tenant the jurisdiction of the Rent Controller is present in the matter .
8. Learned counsel for the defendant No. 2 states that the legal proposition according to him is conceded and that the jurisdiction in the matter is present with the Civil Court cannot be denied as the rights of the plaintif f are independent which are to be appreciated accordingly and same not having acquired from the previous landlord protection of Sindh Rented Premises Ordinance, 1979 is not available to defendant No. 1. It is also contended that the letter dated 19.08.2014 relied upon in the written statement was never conceded to have been accepted and as such the of fer made not having accepted never materialized to create any further relationship.
9. Having heard the learned counsel and gone through the record, the forgiven issues already framed the findings are given, thereafter the discussion allows;
1. Whether this Court has jurisdiction in the matter in presence of the 'exclusive jurisdiction as provided under Sindh Rented Premises Ordinance, 1979? Affirmative
2. To what relief the plaintif f Is entitled to?. Suit decreed for possession and for outstanding rent as discussed.
10. Issue No.1 : Whether this Court has jurisdiction in the matter in presence of the exclusive jurisdiction as provided under Sindh Rented Premises Ordinance , 1979? The defendant No.1 has challenged the jurisdiction of this court on the ground that the said defendant being under the relationship of landlord and tenant, the possession can only be taken away under the prevail ing rent law, which is having the exclusiv e jurisdiction of the relevant rent controller . It is also contended that the said defendant has not denied the establishment of dealership for the plaintif f as was demanded, however it is conceded by non-encashment of the cheques of the rent that the present owner has not accepted the defendant No.1 as his tenant. The stand of the defendant No.1 as to nature of relationship and the applicability of rent law arising therefrom is opposed on part of the plaintif f as well as the defendant No.2 who relying upon the, contents of the plaint contend that prayers of the suit do not cover the element of relationship between the landlord and tenant as such the matter is not to be dealt under Sindh Rented Premises Ordinance, 1979. It is further contended that the plaintif f in this matter having not acquired the subject premises as successor-in-interest of the defendant No.2 who was the earlier landlord of the defendant No.1, as such is not bound by any such understanding as created between the earlier person holding lease and his tenant as such there is no relationship of landlord and tenant existing between the plaintif f and defendant. It is also contended that the jurisdiction in the matter is present with the Civil Court which cannot be denied as the rights of the plaintif f are independent which are to be appreciated accordingly and same not having acquired from the previous landlord protection of Sindh Rented Premises Ordinance, 1979 is not available to defendant No.1.
11. The crux of the matter is the status of the defendant No.1 who admittedly was in a relationship of landlord and tenant with the defendant No.2 before the present plaintif f acquired the lease of the subject land and the earlier lease acquired by the defendant No.1 also having expired when the matter was taken up, learned counsel for the parties having agreed to the final hearing of the matter on the basis of the pleadings and documents which are not denied as such instead of issues being framed for leading of evidence the matter has was taken up to be decided on the basis of legal issues framed. The relevant provisions of Sindh Rented Premises Ordinance, 1979 are quoted below for a ready reference; Sec. 2 definitions:
(f) "landlord" means the owner of the premises and includes a person who is for the time being authorized or entitled to receive rent in respect of such premises;
(j) "tenant" means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes
(i) any person who continues to be in possession or occupation of the premises after the termination of his tenancy;
(ii) heirs of the tenant in possession or occupation of the premises after the death of the tenant; and Sec.13. No tenant shall be evicted from the premises in his possession except in accordance with the provisions of this Ordinance.
Sec.18. Where the ownership of a premises in possession of the tenant has been transferred by sale, gift, inheritance or by such other mode, the new owner shall send an intimation of such transfer in writing by registered post to the tenant and the tenant shall not be deemed to have defaulted in payment of the rent for the purpose of clause (ii) of subsection (2) of section 15, if the rent due is paid within thirty days from the date when the intimation should, in normal course, have reached the tenant.
Considering the above said provisions especially the definition given above for tenant, if the same is confined to only the subsection (i) the defendant No.1 being a person in possession/occupation of the premises after the termination of his tenancy the said defendant No.1 is well covered to be defined as a tenant under the special law of Sindh A Rented Premises Ordinance, 1979, however the matter does not end here as the said tenant has to have a landlord without whom the relationship cannot exist as such this interpretation cannot be accepted leading to confusion. The definition of landlord which is to be read along with the provision of section 18 of the said Ordinance as present to include the subsequent status of the parties however clarify the position whereby it can safely be determined that a person how is not having a right acquired from the person who was the earlier landlord cannot be included in the definition of landlord. As such a person who has acquired the status in his own independent right, distinct of the previous landlord naturally cannot be held bound by any terms of relationship existing before creating of his independent rights not having derived his own rights from the said source who is as such not a successor in interest from his predecessor in interest but a subsequent independent holder of right/s independent to the earlier entitled person , his rights not being derived from the said source but being independent.
The person in possession as tenant of the previous owner was on notice as the extent of his rights by virtue of tenure of the earlier lease as such no question of his rights being violated are found present. In the present case it is an admitted position that the ownership of the land is with PWD from whom the defendant No.2 had an earlier lease and by virtue of the said lease the defendant No.1 was taken in as a tenant. The present plaintif f has also acquired the same right but the same are independent to the person having the same status earlier . This matter of the earlier lease being of limited period and the defendant No.2 not having any right to create any right beyond the said period naturally resulting in a negative conclusion on the basis of the basic legal doctrine of "no one qualified to give a better title to what is holding" need not be deliberated as the same has also expired and as such is of no consequential value. The relationship between the plaintif f who is having his own status (although the said partnership is comparison of sons of the defendant No.2 the same not relevant on account of independent legal/actual status, character and personalities, the element of collusion as alleged as such is also not found tenable) not having acquired from defendant No.2 in the preset case cannot be considered as that of landlord and tenant with the defendant No.1. In this regard the lease defined in the Transfer of Property Act, 1882 shall, come into play , the relevant provisions thereof being;
105. Lease defined. A lease of immovable property is a transfer of a right to enjoy such property , made for a certain time, express or implied, or in perpetuity , in consideration of a price paid or promised, or of money , a share of crops, service or any other thing of value, to be rendered, periodically or on specifie d occasions to the transferor by the transferee, who accepts the transfer on such terms. Lessor , lessee, premium and rent defined. The transferor is called the lessor , the transferee is called the lessee, the price is called the prem ium, and the money , service or other thing to be so rendered is called the rent.
109. Rights of lessor's transferee. If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary , shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer , cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him: Provided that the transferee is not entitled to arrears or rent due before the transfer , and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor , the lessee shall not be liable to pay such rent over again to the transferee.
The lessor , the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased.
As to the contention of the learned counsel that the matter is liable to be considered for the circumstances when the case was filed the same is not found tenable as a Court of law is ever competent to consider the actuality in existing and change apparent present on record not requiring any inquiry. In consideration of which the issues had been got re-framed and parties have been heard as the period of earlier lease obtained favoring the defendant No.2 also standing expired. This issue based upon the above discussion is determined in affirmative accordingly as the plaintiff not coming within the definition of the landlord, the parties i.e. the plaintiff and the defendant No.1 not having any relationship of landlord and tenant to which the exclusive jurisdiction of the rent controller is applicable.
12. Issue No.2: To what relief the plaintiff is entitled to? The plaintiff has claimed possession of the subject property along with damages and the rentals. The defendant No.1 in the matter has neither taken the available defense of holding over and/or waiver which otherwise is not available in the facts and circumstances as bearing from the record. Although an attempt has been made on part of the defendant No.1 in this regard by way of contending that the dealership from the said defendant was demanded by the plaintiff which being at the discretion of the said defendant has not been decided on account of these proceedings pending, but for such a defense to be valid the defendant No.1 had to communicate acceptance of the same when the said offer was made or the same may even have been given by way of un-qualified statement in the written statement which is not found present as such this contention is not found available. Ir-respectively this Court had during the proceedings asked from the plaintiff whether the dealership from the defendant No.1 is/was acceptable to the plaintiff to which the reply was that the terms of dealership offered by the defendant No.1 was not acceptable as better terms were available to the plaintiff, this aspect also stands cleared. The entitlement of the plaintiff not under any cloud the plaintiff is found entitled to the possession of the subject property. The defendant No.1 is also found liable for amounts payable as rent at the same rate as the said defendant was lastly paying on account of the possession for the period since the same was lastly paid to the defendant No.2 till the handing over of the possession to the plaintiff along with profit/markup at the banking rate till recovery of the same, the defendant No.1 however has a right of removing any structure/goods belonging to the said defendant. The plaintiff is also entitled to the money decree against defendant No.2 from the date the plaintiff acquired the rights and the said defendant having lost his entitlement for the amounts received from the defendant No.1 along with profit/markup at the banking rate till recovery of the same. The suit of the plaintiff is as such decreed for possession of the subject property and rents as discussed. The claim of damages however being without support is not found tenable.
Let a decree be prepared by the of fice accordingly .