MUHAMMAD NAEEM ANWAR, J.-Through this single judgment, I propose to decide this petition as well as C.R No.332- M/2017 titled "Jamal Abdul Nasir and four others Vs. Commandant Chitral Scouts Headquarters", C.R No.333- M/2017 titled "Jamal Abdul Nasir and four others Vs. Commandant Chitral Scouts Headquarters", C.R No.335- M/2017 titled "Maqsood Khan Vs.Commandant Chitral Scouts Headquarters" and C.R No.300-M/2020 titled "Maqsood Alam Khan Vs. Commandant Chitral Scouts Headquarters, Chitral" as an identical question of law and facts is involved in all the petitions.
2. Factual background of all these petitions is that on 25.03.2011, civil suits No.142/1, 174/1, 175/1 & 215/1 were filed by respondents/ plaintiffs (Commandant Chitral Scouts Headquarters Chitral) seeking therein recovery of possession of the property through eviction of the petitioners/ defendants on the ground that the property as mentioned in the headnotes of the plaints of the respective suits situated at Lower Drosh Bazar Drosh was handed over to petitioners/defendants vide lease agreement executed on 27th of August 1986 for initial period of 10 years but after the expiry of initial lease period, the lease was extended from time to time and last lease agreement was executed between the respondents/ plaintiffs on 1St of July 2000 for the period of three years at the rate of Rs. 443.52 per 25 SQFT (total area 11088 square feet). It was averred that after the expiry of lease period neither the tenancy was extended nor the petitioners paid the rent thus, notices were issued for payment of outstanding rent and for execution of fresh lease agreement failing which the suits were filed before the learned Rent Controller. The petitioners resisted the suits through their written statement on different legal and factual objections. They contended that the property is being managed by the Military Directorate of Land and Cantonments Rules and that the Estate Officer Military Lands could file the suit thus, the suit is incompetent. It was also averred that the period of tenancy was 99 years and before the expiry it could not be terminated. It was also alleged that the plaintiffs were estopped to sue, the suit was time barred and the Court lacks the jurisdiction. After completion of evidence the suits were dismissed by learned Senior Civil Judge on 23.06.2011.
Plaintiffs being aggrieved filed appeals which were allowed by the learned Additional District Judge Chitral vide judgement & order dated 17.03.2012, by setting aside the judgements & decrees, remanded the suits to the trial Court with the direction to treat the suits as regular civil suits and to decide them in accordance with law. In post remand proceedings, after completion of evidence, the suits were decreed by the learned Civil Judge-1 Chitral through separate judgments & decrees dated 24.02.2014 which were challenged by the petitioners through their respective appeals however, their appeals were dismissed by the learned appellate Court through impugned judgement & decrees dated 17.06.2017 hence these petitions. Apart from the above four civil suits, another suit No.106/1 was filed by Maqsood Alam Khan, the petitioner of connected C.R No.300- M/2017 on 29.03.2016 against Commandant Chitral Scouts for recovery of Rs.11,27,500/- as compensation for the loss caused to his five shops and two quarters, which were demolished by the respondents. This suit was resisted by the defendant/ respondent through his written statement and on completion of trial, it was dismissed by the learned trial Court on 13.12.2018, against which, appeal of the plaintiff/ petitioner was also dismissed by the learned District Judge, Chitral through his judgment and decree dated 25.08.2020. against which connected C.R No. 300- M has been filed by the petitioner. Since the common questions of law & facts are involved in all these petitions therefore, all these petitions are decided through this common judgement.
3. M/S. Sabir Shah and Qazi Ishaq, Advocates representing the petitioners of the' former three petitions produced copy of document dated 27th August, 1986 on the subject of 'lease agreement of Military Land between commandant Chitral Scouts and Mr. Qazi Jamal Abdul Nasir on direction of President of Pakistan and Chief of Army Staff General Muhammad Zia-ul-Haq during his visit to Chitral/ Shandur Festival', and contended that this was the original agreement, which was executed with all the petitioners on the directions of the President of Islamic Republic of Pakistan, however, Ex.PW1/3 as referred by the respondent was denied by all the petitioners. He also contended that the respondent was not competent to file the suits rather in accordance with Cantonments Act 1924 & Cantonment Land Administration Rules, 1937, thus, the suit could be filed by the competent authority. He also added that due to misjoinder and non-joinder of the necessary parties, the suits of the respondent were not competent and were requiring dismissal summarily. He, while referring to the judgment of the learned appellate Court, lambasted that the Court treated the institution of the suits as rent applications irrespective of this fact that after dismissal of the suits in first round of litigation, the appeals were accepted by the learned appellate Court with directions to the learned trial Court to treat it as regular civil. suits. In support of their submissions, they relied upon the cases of "Government of Balochistan, CWPP & H department and others Vs. Nawabzada mir tariq hussain khan magsi and others" (2010 SCMR 115), "Divisional Forest at, vs KHAN through Legal Heirs and 10 others" (2008 SCMR 442), "Haji Abdul Aziz vs Government. o Balochistan throu h De u Commissioner, Khuzdar" (1999 SCMR 16), "Jamal ud Din and 9 others vs Sved Faizullah Shah and 3 others" (PLD 2016 Baluchistan 44), "Inspector- General Of Police, Pun jab Lahore and another vs. Muhammad kW" (2007 SCMR 1864) and "Muhammad Bashir vs. Muhammad Hussain and 16 others" (2009 SCMR 1256).
4. Malak Ahmad Jan, Advocate representing the petitioner in connected C.R No.335-M/2017 and 300-M/2020 contended that it was a lease in perpetuity affected between the parties, as such, no suit ould ever be filed against the petitioners and the demolition of superstructure by the respondent of C.R No.300- M/2020 was unjustified. without waiting for end result of the litigation pending adjudication before the Court and that for demolition of the superstructure the by the respondent, the petitioners suffered the loss as described in the headnote of the plaint but both the learned Courts below have non-suited them which are against the law. He added that lease in perpetuity was created for a period of 99 years and before determination thereof the institution of the suits by the respondent were incompetent and could not be decided against the petitioners.
5. Mr. Muhammad Ikram Khan, Advocate representing the respondent in all these petitions contended that the execution of the lease deed is an admitted fact and since the agreement was executed with the respondent by the petitioners, thus, the respondent was competent to file the suits and insofar as the contention of the petitioners that when the property is the ownership of the Federal Government through Military Estate Officer then institution of the suits through Commandant Chitral Scouts Headquarter Chitral was not competent, is misconception on part of the petitioners. He added that it is the matter between the respondent and Military of Pakistan, as such, the institution of suits could not be questioned. He vociferated that though it was alleged that the plaintiff/ respondent is the owner of the property, however, it is the matter between the respondent and the Federal Government through Military of Pakistan, as such, the claim of the plaintiff of four civil suits i.e., 142/1, 174/1, 175/1 & 215/1 was only in respect of the ejectment of the petitioners and recovery of outstanding dues, which is based upon the tenancy. According to him there was no perpetual lease between the plaintiff/ respondent and petitioners/ defendants and even if it was so, the terms and conditions were violated by the petitioners, for which, the suits were rightly filed and were decreed against the petitioners by the learned Courts below. He went on to say that the plaintiff of suit No.106/1 was seeking general and special damages, however, he has failed to substantiate his version through cogent, reliable and direct evidence, as such, his suit was rightly dismissed by the learned trial Court and appeal thereagainst was dismissed by the learned appellate Court, in accordance with law.
6. Arguments heard and record perused.
7.. It is pertinent to mention here that the petitioners have no claim of their ownership in respect of the properties i.e., the subject matters of these petitions and learned counsel for the petitioners have submitted the copy of the lease agreement, vide which, the property was transferred to the petitioners and by producing the same, they have admitted their status as that of lessee. The contents of the deed are of worth perusal, which are reproduced as under: "Lease agreement of Military Land between commandant Chitral Scouts and Mr. Qari Jamal Abdul Nasir on direction of President of Pakistan and Chief of Army Staff General Muhammad Zia-ul-Haq during his visit to Chitral/ Shandur Festival.
1. On request of Qari Jamal Abdul Nasir for allotment of lease land to construct living accommodation and to exchange the said land as and when he can easily provide land to Chitral Scouts in same amount, the President of Pakistan/COAS General Muhammad Zia-ul-Haq directed to Commandant Chitral Scouts Chitral as under: a) On basis of best performance/ service for Chitral Scouts on important events by Qari Jamal Abdul Nasir, a land from military property may be allotted to Qari Jamal Abdul Nasir for construction of living accommodation. b) The land will be exchanged as and when and where the'applicant easily provide land to Chitral Scouts.
2. This agreement between commandant Chitral Scouts (hereinafter called Commandant) on the one part and Mr. Qari Jamal Abdul Nasir son of Molvi Abdul Hameed (hereinafter called the lessee on the other part).
3. The lease agreement pertain to lease of military land and terms/ conditions mentioned as per the detail given below: a. property: uncultivable land (kiln) b. location: Drosh (near civil hospital) c. Area: 135 X 85+ 11475 (25 square feet) d. Lease rate: (459 X 0.40_ 183.06 per month 0.40 paisa per 25 square feet) e. period of agreement: as para 1, b. f. The lease rate will be increased by 5 per cent in 25 square feet of land after every 10 years. g. The lease property is not transferable. h. The lease land will not be used for the purpose other than as requested/ allotted till exchange as per Para 1, b.
4. This agreement signed on 27th August, 1986 between Commandant Chitral Scouts and above- named lessee in presence of undermentioned witnesses: - THE LESSEE Signature Lt. Col. Name: Qari Jamal Abdul Nasir Commandant Chitral Scouts Address: Bazar Drosh (Adjacent to (Murad Khan Nayyar) Bazar Mosque)
WITNESSES:
1. Signature 2. Signature Name: Balinas s/o Sher Alam Name: Nasrullah Shah s/o Iqbal Address: Domoon Broze Address Drosh Langa Meteorology office Presently working as 2/LT 8/6 Drosh Fort Mujahid Battalian at Drosh Fort (HQCS)
The referred to above agreement was executed on 27th of August, 1986 between the Commandant Chitra Scouts and the petitioner as lessee in presence of the marginal witnesses. Jamal Abdul Nasir, appeared in person before the Court alongwith his learned counsel has admitted his signature on the deed. It is also an admitted fact that the military land was allotted/ leased out to the petitioners with the terms and conditions as mentioned therein. It was nowhere mentioned in the document that it is a perpetual lease as defined in the Transfer of Property Act, 1882. Even otherwise, the lease has been defined in section 105 of the ibid Act as that "it is 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 specified occasions to the transferor by the transferee, who accepts the transfer on such terms." Insofar as the lease for perpetuity is concerned, which from the very inception may have been perceived to have some overtones of permanency in its nature, regardless of whether a period had been fixed or not, such a lease, even if construed to be permanent on the basis of its object/purpose, shall automatically come to an end when the object of the lease was extinguished, and even if the lessee under the terms of lease had raised construction, as such structure shall either be treated as an accretion to the original leased out property and would go to the lessor or the lessor would have to compensate the lessee for such construction as held by the apex Court in the case of "Farzan Ali Vs. Khuda Bakhsh"(PLD 2015 SC 187). The rights and liabilities of the lessor and lessee has also been provided u/s 108 of the ibid Act of 1882. By entering into a lease agreement and admitting it as correct the petitioners are estopped to challenge the competency of the suits filed by the respondent for determination of the lease on the ground of violation on part of the petitioners in non-payment of rent for a considerable period.
Since, the respondent/ plaintiff has not concealed the facts from the institution of the suits rather made it clear that there was a tenancy/ lease agreement between the respondent/ plaintiff and the present petitioners/ defendants, thus, the document as produced by the petitioners today before this Court during the course hearing of these petitions irrespective of Ex.PW1/3 would be the criterion for determination of the rights between the plaintiff/ respondent and the Military of Pakistan hence, the institution of the suits by the respondent/ Commandant Chitral Scouts Headquarter Chitral could not be termed to be incompetent. It was a suit, through, which, the recovery of possession through eviction of the petitioners was sought and that too being based upon an agreement, thus, the Court was required to decide as to whether there was a lease agreement and if so, whether the term of the lease has been violated by the petitioners and whether there were outstanding dues against the petitioners? These were the questions which were to be decided by the learned trial Court in accordance with the provision of the Transfer of Property Act, 1882. The referral on the part of learned counsel for the petitioners to the provisions of the Cantonment Act, 1924 and rules made thereunder for the purpose of determination of the military/state land, institution of the suit, determination of the rights have got no concern. The suit could not be hit by mis-joinder or non-joinder of the parties.
8. In the case of "Ngara Hotel Limited and others vs. Raiaballv Kassam Suleman and others" (PLD 1952 Privy Council 96) it was observed that "the breach of a covenant in a lease, upon which, under the terms of the lease, the landlord is entitled to re-enter, makes the lease voidable at his option if and when it becomes known to him." Adverting to remand order with the direction to the trial Court to treat the suits as regular civil, these findings of the appellate Court were correct because Rent Restriction Ordinance was not extended to the rea whereas the Transfer of Property Act has been extended to the erstwhile Provincially Administered Tribal Area (PATA) of Malakand by Regulation II of 1974 and it is also true that section 111 of the Transfer of Property Act provides for determination of lease inter alia on the ground that a notice to determine the lease has been issued which condition has also been fulfilled. For competency of suit before Civil Court reliance is placed on the case "Amanullah Khan vs. Noorul Basar and 3 others" (PLD 1979 Peshawar 5). Nonpayment of rent after the expiry of the lease period could not provide any justification for the lessee to remain in possession of the property on the ground of alleged plea of lease in perpetuity or even holding over. Reference may be made to the case of "Ch. Noor Hussain vs Ch. Allah Bakhsh and Others"
(1984 SCMR 446). In addition to the above, the determination of the lease has been provided u/s 111 of the transfer of Property Act, 1882 and sub-clause, (g) of section 111 provides that whenever there would be any breach of express condition of the lease, it shall come to an end, which results into forfeiture of the lease. Similarly, section 114 of the ibid Act provides the relief against forfeiture for non-payment of, rent. The respondent/ lessor filed the suits with specific assertion that from a particular date, rent has not been paid and before filing the suits, the petitioners were also served with notices sent under the cover of registered Acknowlegment Due, and this fact has neither been denied nor challenged by them through these petitions. The present petitioners might continue with the lease provided they would have paid the entire outstanding rent while appearing before the. Court, however, they have disputed the status of their lessor and lease has not been denied. It is significant to mention here that the petitioners have changed their version/ stance at different times i.e., they have admitted the lease, they have disputed the status of lessor and they have admitted the payment of rent but rent is still outstanding against them. They have alleged the tenancy for 99 years besides the tenancy in perpetuity. Be that as it may, it is an admitted fact that the respondent was the lessor with whom, the lease was executed, whereby rent was fixed and that was paid regularly, however, as per the whims and wishes of the petitioners, now they have stopped the payment of rent. In view of the different versions of the petitioners, it could not be held that there was a perpetual lease rather record reflects that after the expiry of the initial period of lease, it has been extended with the mutual consent of the parties from time to time and now when the petitioners have stopped the payment of rent and they have disputed the status of their lessor, their possession at the spot has become adverse to the rights of the lessor, which could not be allowed to remain in their possession and that too without any express tenancy between the parties. The moment, the petitioners have disputed the status and locus standi of their lessor, their possession at the spot has become as that of a trespasser and law could not provide any protection to a person who has violated the specific condition of the settled lease agreement.
9. Besides above, learned counsel for the petitioners contended that in view of the specific provisions of the Cantonment Act, 1924 and Cantonment Land Administration Rules, 1937, the institution of the suits against the petitioners was incompetent, however, his submission in view of the referred to above law and rules, is misconceived. In Chitral, there is no Cantonment Board in expressed terms and the legal entity of the respondent was only that of the lessor. Once the petitioners have admitted their own status as that of the lessees then they could not be allowed to blow hot and cool in the same breath by alleging themselves to be the perpetual lessees of the property etc. First they will have to surrender the possession of the property to the respondent and thereafter to make any claim either against the respondent or against Federal or Provincial Government in view of the provision of the Cantonment Act, 1924 and rules of 1973.
10. Insofar as the findings of the learned appellate Court with reference to the provisions of the West Pakistan Urban Rent Restriction Ordinance are concerned, suffice it to say that from the day first, it was a suit for determination of the lease between the parties and Transfer of the Property Act, 1882 provides the relief for recovery of possession, determination of the outstanding rent, determination of the tenancy etc. therefore, the learned appellate Court has committed no illegality while making a reference to the relationship of the parties in view of their particular status as lessor and lessee. Both the learned Courts below have rightly appreciated the evidence of the parties in consonance with the law on the subject and have reached to a just conclusion of the controversy.
11. Adverting to `the suit of the petitioners for recovery of special and general damages against the respondent for demolition of their construction. As the petitioners have not been able to substantiate their contention on the basis of solid and cogent evidence for the relief sought against the respondent, as such, both the learned Courts below have rightly non-suited the petitioners. The petitioners of all the petitions have not been able to point out any illegality, irregularity or jurisdictional defect in the impugned judgments and decrees of the learned Courts below. The case law relied upon the learned counsel for the petitioners regarding the Maintainability of the suit is not applicable to the case of respondent.
12. Thus, for the reasons disCussed above, all the petitions, without being Without any substance; are hereby dismissed, with no order as to cost.