1. ' This appeal is directed against the order dated 20th November, 1981 passed by the Senior Civil Judge, Quetta exercising the powers of the Controller under the Ordinance (VI of 1959) whereby the appellant has been directed to put the respondent in possession of a khokha bearing Municipal No, 8-2132 near Cafe Iran Shahra-e-Liaquat, Quetta and arises in the following circumstances.
2. The respondent/landlady filed an application for the eviction of the tenant/appellant from the said Khokha on the grounds of non-payment of rent with effect from May to August, 1971 and for bona fide construction and personal use. The tenant/appellant contested the eviction application and raised objection that the property in dispute was evacuee and as such the court had no jurisdiction, besides the allegations about the non-payment of rent and bone fide requirement of the landlady were also denied. The learned Controller framed a preliminary issue, "whether the court had got no jurisdiction in view of the preliminary objection contained in the written statement, but decided the issue against the appellant/tenant. The finding of the Rent Controller was based on the facts proved before him to the effect that the land under beneath the Khokha belonged to Sardar Muhammad Issa Khan who had purchased the supersturcture thereon from the Custodian Department in 1952 and since then the rent was paid by the present appellant to the said Sardar Issa Khan and after purchase of the same by the present respondent the rent was received by the landlady. This finding of fact was based on the statement of Sardar Issa Khan who had appeared in the witness-box for the landlady and had asserted that he had been realising the rent for the Khokha from the appellant. The tenant/appellant himself had admitted in his written statement that he had been paying rent to the respondent and when she refused to accept the rent the same was tendered in the Court. The appellant had gone in appeal against the finding of the Rent Controller to the District Judge, Quetta who dismissed the appeal and affirmed the finding of the Rent Controller vide his judgment dated 3-9-1974. Against this order the tenant/appellant had taken the matter to the High Court and the High Court also dismissed the appeal but at the same time was of the view that since the decision of the learned Controller was about the jurisdiction which was tried and decided as the preliminary objection the appellant could agitate this ground when the final order is passed. Thereafter the learned Rent Controller framed the following issues :- (1)Whether the respondent has failed to pay the rent w. e. f. May, 1971 to August, 1971, if so to what effect ?
2. (2)Whether the applicant requires the premises in dispute for demolition and re-construction bona fide and in good faith ?
3. (3)Relief.
4. ' The learned Rent Controller vide his orders dated 30th November, 1981 decided the issue of non- payment against the respondent but ordered the eviction of the appellant by deciding the issue about bone fide reconstruction in favour of the landlady. Against this order the present appeal has been filed in this Court.
4. Mr. Muhammad Moquim Ansari, the learned counsel for the appellant has submitted before me that the lower Court had no jurisdiction as the property according to him was evacuee and in that connection asserted that the transaction of sale of superstructure in favour of Sardar Issa Khan by the Custodian is void since the sale in favour of Sardar Issa Khan was not witnessed by any registered document and also without the previous approval of the Central Government it was inoperative. I am afraid this contention is misconceived and in fact is inconsistent and estoppel operates against him. The question as to whether the property is evacuee or not does not arise because this is an eviction application between the landlord and the tenant on the basis of tenancy. The Custodian Department had sold the superstructure to Sardar Muhammad Issa Khan and thereafter the department was no more interested in the matter, Sardar Issa Khan had been realising the rent from the tenant/appellant and this attornment by the tenant was under no misunderstanding. The tenant being already in possession of the Khokha had attorned to Sardar Issa Khan and thereafter to the present respondent by payment of rent. The plea which is being raised before me could not be advanced even by the Custodian himself unless the order of Custodian selling the superstructure is revised by any court of competent jurisdiction. Mr. B. Z.
5. Kaikaus, J, while dealing with the similar contention in S. A. Waheed v. Dayal Singh College Trust Society (1) at page 574 of the report has held :- "I may here refer to the general principle accepted in cases of jus terti that no pet son is allowed .
6. To plead the right of another when his {{FOOT NOTE}} (OP L D 1955 Lab. 570 {{FOOT NOTE}} opponent has got a decree against that other. Every person is bound by the estoppels which affect the person whose right he pleads. The defendant is now pleading only the right of the Custodian.
7. He cannot do so in a case where there is an estoppel against the Custodian. The Custodian himself could not, unless he revised his previous order, plead that the property is evacuee property."
8. Such a plea as now being advanced by the learned counsel for the appellant has long been regarded inept and incompetent in so far as it is a denial that the lessor/landlord had any title. So long as the tenant continues in possession under the lease law will not permit him to set up any defence that landlord has no title. This state of law in reality tends to maintain right and justice and the enforcement of the contracts which men enter with each other, far so long as a lessee enjoys everything which his lease purports to grant, how does it concern him what the title of the leassor is. All that is required of him is that having received the full consideration for the contract he has entered into, he should on his part perform it. This is a useful exposition of the reason which underlies the well-known doctrine of estoppel which has been enacted in section 116 of Evidence Act which reads as follows:- "116. Estoppel of tenant, and of licensee of person in possession.-No tenant of immovable property, or person claiming through such, tenant, shall, during the continuance of the tenancy, be permitted to deny, that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when such licence was given."
9. ' The Privy Council in Kumar Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern Ltd. And others (1), held that even if there is any defect in the title it is not the concern of the tenant. In the present case the Rent controller has given a positive finding of fact based on evidence on record hat the appellant has attorned the landlady by paying the rent to her. The assertion of the tenant/appellant that a portion of the land belonged another person namely Muhammad Ali was not accepted as according him to this Muhammad Ali himself not rent was ever paid by the appellant nor any right of ownership was asserted against the present malady or her predecessor- in-interest, Sardar Muhammad Issa Khan. Ttornment establishes a valid relationship of landlord and tenant and consequently brings in the estoppel. The Supreme Court of Pakistan in almullah v.
10. Amin Hazin and others (2), while dealing with the similar ontention has laid down the law. The relevant observations appeared on 78, may be quoted:- "The High Court took the view that since the petitioner had accepted the tenancy under the respondent No, 1, he was estopped under section 16 of the Evidence Act, from challenging the title of his landlord, whatever the status of the property might be.
11. ' The petitioner now seeks special leave to appeal. Learned counsel appearing in support of this petition has urged that the High Court was wrong in taking the view that the petitioner was estopped from raising the question of jurisdiction of the Rent Controller. We are unable to agree. It seems to us that the High Court has rightly {{FOOT NOTE}}
(I) AIR 1937 P C 251 (2) 1976 SCMR 77 {{FOOT NOTE}} held that once a person has accepted another as his landlord and entered into possession of the premises as such tenant, he cannot be allowed to challenge the title of his landlord."
12. ' In view of the above discussion I have no hesitation in repelling the contention raised by the learned counsel for the appellant.
13. ' The finding of the learned Rent Controller has been attached on the ground that the landlady has failed to establish through the evidence that the premises was required for personal use and bona fide reconstruction. This contention is also without any force as according to the learned Controller the landlady has already constructed the building in accordance with the plan duly sanctioned by the Municipal Committee and the Khokha is only in front of a very small portion of the land on which the building has been raised and the landlady wants to complete her building by raising construction on the land over which the present Khokha in occupation of the appellant stands. In that connection the learned Controller has come to the conclusion that the requirement of the landlady has not been controverted and the landlady's attorney on the point of the demolition and construction for personal bona fide requirement was not cross-examined at all nor any evidence in rebuttal has been led by the tenant. I see no reason to differ with that finding of fact.
14. ' The upshot of the discussion is that the appeal has no merits which is dismissed with costs throughout. The appellant is, however, allowed two months time to vacate the Khokha.