1. ' The respondent filed an ejectment case against the appellant in respect of tenant consisting of Shops Nos. 16, 18, 19 and 92 in Hadi Market, Nazimabad, Karachi. The allegations of the respondent are that the appellant was running a tea, shop in this premises and was serving refreshment, but some time before filing of ejectment case, in the year 1969, he converted it into a full fledged hotel.
2. He has unauthorized constructed a water tank which is causing damage to the foundation of the building, and is also against the rules of K.M.C. It was also alleged that the appellant has unauthorized constructed an oven (Tandoor) for baking breads which is run all the 24 hours, It is stated that the illegal and unauthorized construction of water tank and oven have damaged the building and is a constant source of nuisance, annoyance and discomfort, to the neighboring tenants of the shop. The appellant in the written statement stated that in 1958 one Mehrban had taken these shops on rent for running a hotel, and remained there till 1966, thereafter, the tenancy was changed in his name. He further stated that at the time when he became the tenant, the water tank was in existence. He further stated that in the oven "Chapaty" is prepared and no discomfort or nuisance is caused to the neighbors, The learned Controller held that the water tank has unauthorized been constructed and is causing damage to the building. The water tank and oven have materially impaired utility of the building and further that the appellant is causing nuisance.
3. The ejectment application allowed. Hence this appeal.
4. ' Mr. Dastagir Ghazi, the learned counsel for the appellant has contended that the learned Controller has not properly read and appreciated the evidence. He further contended that from the evidence on record it is not established that water tank was constructed by the appellant or that it is causing damage to the building. In this regard reference can be made to the evidence of the parties. The respondent has examined her attorney who has stated the facts mentioned in the application. He has reiterated that the appellant was running a tea shop, but has converted it into a full-fledged hotel which is running through out day and night. He further stated that after converting the shop 'into a dining hotel, the appellant has illegally constructed a water tank which is against K.B.C. Rules and Is a constant source of danger to the very foundation of the building. He has produced a copy of notice dated 6-4-1968 which was served on the appellant in which it was specifically stated that the appellant has unauthorized constructed an underground water tank which is a source of danger to the foundation of the building. Admittedly this notice has not ban replied by the appellant. In cross-examination the said attorney has admitted that in 1958 the disputed premises was in occupation of Mehrban who was running a tea shop. tie denied the suggestion that Mehrban used to run a hotel in the premises upto 1966. He also denied that there was an underground water tank in the premises. The respondent also examined an architect who after inspection of the hotel certified that the tank is not in. a proper. position as it is adjacent and deep into the foundation of the central column which is bearing the roof load from all the sides. The foundation of the column is only 4 ft. deep, whereas the tank is more than 6 ft. deep made of block masonry. According to the architect as the tank has not been constructed properly nor in R.C.C. structure there is every possibility of damage to the building in case of cracks and also due to the sinking of the bottom of the tank as the . walls are of block masonry having no proper reinforcements. The architect was examinee 1981 and certificate had been issued on 29-7-1969. In the cross-examination the architect stated that he inspected the building twice first in the year 1974 and second time in the year 1980. When he was confronted with the certificate dated 29-7- 1969 he stated that he had inspected the kitchen and other parts of the hotel and given certificate after inspection particularly the construction of tank in the hotel. The respondent wanted to ask question in re-examination to clarify the date of the first inspection, but it was disallowed by the learned Controller. The existence of the water tank has not been denied. What the appellant has stated is that the tank was in existence at the time when he had taken over the premises as tenant.
5. He further stated that Mehrban was running a hotel, and he was his manager. He has 'examined one Mirza Hussain, who stated that he is a visitor of hotel from 1961 and is fully''aware of the facts.
6. He also stated that in 1965 he had worked as Manager of the hotel for six months. He has stated that there was an underground tank and oven in the hotel. He has stated that he is not related to the appellant but both belong to Iran. He further stated that he has not gone inside the hotel where the water tank and oven are situated. He denied that in 1965 there was no water tank. He seems to be an interested witness. No record has been produced to show that he has worked for six months in the hotel. The appellant has examined himself and this witness only. If the water tank was in existence before it was occupied by the appellant, then some relevant evidence of authentic nature could have been produced by him. Except his statement and of Mirza Hussain no other witness has been examined. He could have examined Mehrban Irani during whose tenancy this water tank is stated to have been constructed. No attempt was made to examine him or explain that he was not available for examination. The appellant is running a hotel, and there would be large number of persons working in the kitchen and visting hotel, who could have been produced to show that the water tank was in existence prior to 1965. From the documents produced by the parties, it seems that at one stage K.M.C. had objected to the construction of this water tank and had verbally asked to remove it. The appellant had filed a suit against K.M.C. and the respondent as it was alleged to be a collusive action by K.M.C. The important document on record is the notice sent by the respondent on 6-4-1968 complaining of the construction of water tank. The respondent did not reply to this notice, which goes against him. The appellant has therefore established that the water tank was constructed by the appellant without his consent.
7. ' The question now is whether it has damaged to foundation of the building. The architect's report is sufficient to establish this fact. Although there is some discrepancy about the date of visit it seems to be a mistake on the part of the witness and if a chance would have been given for re- examination this would have been clarified. He has, however, stated that he had inspected the site and it was after inspection that the certificate was issued. The appellant had opportunity to lead evidence in rebuttal to show that the tank will not cause any damage to the building. Neither he has produced any architect, nor any other person to testify this fact. Considering the location, depth and the nature of the construction of the tank I am inclined to believe that it is causing damage to the building of the respondent, and it will materially effect the utility of building.
8. ' The next question is about nuisance. The appellant has denied it. The respondent has examined witnesses who have stated that oven (Tandoor) is in operation from morning till night and the employees of the hotel throw rubbish on the staircase which causes inconvenience and further that due to the scorching heat of Tandoor it is causing discomfort to the neighbor This evidence in my opinion is not sufficient to establish nuisance. The hotel is being run in the disputed premises much before appellant came there in 1966. Amongst the witnesses for the respondent one is related to her and others are her tenants. There does not seem to be any written complaint from any tenant complaining of nuisance. This issue has not been proved by the respondent.
9. Mr. Manzoorul Hague the learned counsel for the respondent has stated .that if the appellant demolish the water tank, removes it completely and brings the entire floor to its original position, the respondent will not, eject the appellant. The offer was made in open Court and the appellant's Advocate took time to seek instructions but so far no reply has been given by him. In view of the facts discussed and the findings arrived at and also the offer made by the respondent, I order that if within two months the appellant demolishes the water tank and brings the floor in its original position he shall not be ejected. The appeal is therefore allowed on the condition that if the appellant fails to demolish the water tank and remove it completely within two months, he shall be ejected forthwith.