' This Second Appeal is against the judgment dated 20-2-1980 of the District Judge, Thatta in First Rent Appeal No, 10/1979, whereby order dated 30th April, 1979 of the Rent Controller, Thatta was set aside and the rent case was remanded back to him.
' The facts leading to the filing of the Second Appeal are as under :- ' Respondent Ghulam Nabi son of Muhammad Usman and his brothers, inherited property known as Karachi Hotel situated on a portion of plot bearing City Survey No, 822/C. Thatta, measuring 97-2 square yards from his maternal grandfather Abdullah son of Ilyas in whose favour the aforesaid property bad been transferred by the Deputy Settlement Commissioner, Thatta vide P. T. D. Dated 12-10-1962.
2. In the year 1967 the appellant took on rent the property in question at Rs, 350 per month initially for a period of three years. Such agreement of lease in writing was executed by Muhammad Ramzan alias Abbo a brother of the respondent and the co-owner of the property and the lease deed was duly registered before the Sub-Registrar, Thatta. The aforesaid agreement expired in the year 1970 and again a lease agreement for a period of 11 months was executed on 3-6-1970 by Muhammad Ramzan, brother of the respondent with the appellant this time at the rate of Rs, 400 per month. On 11-1-1978, the respondent gave notice to the appellant to vacate the premises as he required the same for his personal bona fide use and desired to run hotel business himself or by one of his brothers. The appellant by his reply dated 27-1-1971, refused to vacate the premises.
3. It was further the case of the respondent that the appellant had also failed to tender rent since the month of December, 1977 and, therefore, he filed application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 before the Rent Controller on 15-4-1978.
4. In the written statement the appellant denied that there was relationship of landlord and tenant between the parties. He denied that the property known as Karachi Hotel belonged to the respondent and his brothers. He, however, admitted that Muhammad Ramzan alias Aboo had given lease of the hotel to him in the year 1967 but it was his case that the hotel was situated on a plot which did not belong to Muhammad Ramzan but belonged to Major Ali Zaheer Khan. It was further the case of the appellant that Muhammad Ramzan fraudulently and dishonestly had represented to him that the premises belonged to him and his brothers and on the false representation they bad been charging rent from him illegally and unlawfully till the end of year 1977. It is the case of the appellant that he then received a notice from the civil Court, Thatta for his ejectment from the premises on the ground that he was encroacher on the plot of Major Ali Zaheer Khan, who had filed execution application for ejectment against the G. T. C. And others in that Court.
5. He raised the further plea in the written-statement that on receipt of the Court notice, he made inquiries into the matter and he came to know that Abdullah, grandfather of the respondent, was transferred area of 97-2 square yards out of Plot No, 622 by the Settlement Department and the mutation in his name entered into and made in the City Survey Record in the year 1962. It further transpired that Abdullah got his own plot demarcated from City Survey Office and a Separate No, 822/1 was allocated to that plot and a sanctioned sketch was also prepared and entered into the City Survey Record after due verification on the site and such Government record was prepared on 17-10-1962. The appellant, therefore, admitted that after death of Abdullah Plot No, 822/1 was inherited by the applicant and his brothers in the year 1963 and such mutation had also been made in the record of rights but according to him this portion of the plot was situated on the corner of western southern side of main Plot No, 822, belonging to Major Ali Zaheer Khan and it was further the case of the appellant that due to widening of the National Highway, the respondent and his brothers encroached upon the portion of Plot No, 822 and constructed their Katcha Hotel on it and they had leased it out to him in the year 1967. It was, therefore, his contention that since it was a Katcha Hotel and it was in a delapidated condition he had repaired it at very heavy cost. However, in the year 1977, the appellant had purchased the plot of the hotel from Major Ali Zaheer Khan by registered sale-deed on 15-12-1977 and such mutation was made in the City Survey Record on 2-3- 1978 and the plot of hotel was allocated a separate number in the City Survey Record as No, 822/2 on 2-3-1978. It was further contention of the appellant that the Plot No, 822/1, which belonged to the respondent and his brothers is lying as open plot and is in front of his hotel with which he had no concern.
6. On the aforesaid pleadings of the parties the learned Civil Judge and Rent Controller, Thatta framed the preliminary issue whether there was relationship of landlord and tenant between the parties. Respondent Ghulam ' Nabi gave evidence in the inquiry and was cross-examined at length on behalf of the appellant. He produced the original order of the Assistant Custodian, Thatta permitting Abdullah son of Muhammad Ilyas, his maternal grandfather, to construct canteen in the compound of G. T. C. The aforesaid permission is dated 8-11-1951. He also produced the no objection certificate of the General Manager, Sind Road Transport, Karachi with regard to the putting up of the canteen on the proposed site and also the sketch of the site. The Assistant Custodian, Thatta by deed of lease dated 1st February, 1954 in favour of Abdullah son of Ilyas leased out the plot of land measuring 36 x 25 yards from 1st January, 1954 to 31st December, 1956 and lessee under the aforesaid lease deed was permitted to erect the structure on the said plot of land. On 23rd December, 1959, P. T. 0 was issued in favour of Abdullah son of Ilyas in respect of the aforesaid plot and P. T. D. Was issued by the Deputy Settlement Commissioner on 12-10-1962. The aforesaid documents were produced by the respondent in support of his application. The respondent in support of his application also produced documents to establish the fact that the hotel was on the plot, which had been transferred by the Settlement Authorities in favour of Abdullah.
' It would appear that there had been dispute between Abdullah and one Syed Faqir Ali Shah who had put up a `pan-birr cabin on a portion of plot of Abdullah. Re-auction had been ordered and Abdullah filed Revision Application before the Settlement Commissioner, who asked for report from the Assistant Settlement Commissioner. The order of the Settlement Commissioner was also produced by the respondent/applicant in the proceedings before the learned Rent Controller. This order is dated 13-9-1962 and incidentally Major All Zaheer Khan from whom the appellant claims to have purchased the plot was also a party. In the aforesaid order of the Settlement and Rehabilitation Commissioner, dated 13-9-1962 there was mention that Abdullah had constructed the hotel which he had been running on the road side with permission and under a lease granted by the Assistant Custodian in the year 1954 and the hotel was being run in building which was "permanent for all practical purposes, so far as the town of Thatta". It was made very clear in that order that it was wrong for the local Deputy Settlement Commissioner to include the hotel premises in the open part of the building site which alone was available for auction and that the hotel which the respondent/applicant had constructed with permission of the local Assistant Custodian could not have been sold to intervenor Major Nawabzada S. M. Ali Zaheer. The order further mentioned as under :-- "What could have been legally sold to him is that great major part of the evacuee building site which is not covered by the hotel already sold to the applicant."
' The respondent/applicant also produced certified copy of the decision of this Court in Writ Petition No, 464 of 1968 filed by Maj. Nawabzada S. M. Ali Zaheer, which incidentally was decided by recording the compromise of the parties. The aforesaid petition as is clear from the order of the learned Single Judge, dated 7-11-1973 was directed against the order of the Settlement and Reh .Bilitatian Commissioner dated 13-9-1962 already referred to above where it had been held.That Maj. Nawabzada S. M. Ali Zaheer was entitled to area of 5,132 sq. Yds. Out of which area of about 97- 2 square yards had already been transferred to respondents Muhammad Ramzan and his brothers. There were number of receipts and other documents with regard to the property in dispute produced before the Rent Controller by the respondent.
7. There was also the evidence of Muhammad Aslam, who was produced by the respondent/applicant as a witness, who gave evidence about the situation of the hotel. On the other and there was evidence of Ghulam Mustafa Uqaili, the appellant who produced the sale-deed in respect of plot also he purchased from Maj. Nawabzada S. M. All Zaheer Khan on 15th December, 1977. It may also be stated here that one of the documents produced by the appellant before the Rent Controller, was the same order of the Settlement and Rehabilitation Commissioner, in which cabin-holder Syed Faqir Ali Shah was a party. The appellant also examined Mir Muhammad, City Surveyor with regard to the break up of the City Survey No, 822 into City Surveys Nos. 822/1 and 822/2 besides the main City Survey No, 822. The learned Civil Judge and Rent Controller, Thatta decided the preliminary issue against the respondent/applicant stating that it had been proved that hotel was situated on City Survey No, 822/2 ward 'C' Thatta and respondent/applicant was not owner of the said number, he being owner of City Survey No, 822/1.
The learned Rent Controller, therefore, held that no relationship of landlord and tenant existed between the parties.
8. Against the decision of the Civil Judge and Rent Controller, Thatta, dated 13th April, 1979, the respondent filed appeal, which was heard by the District Judge, Thatta who accepted the same and set aside the impugned order of the learned Civil Judge and Rent Controller and remanded the rent case back to him for disposal according to law. He arrived at the decision which is impugned in the instant appeal holding that since the tenant (appellant herein) was inducted into the premises by Ghulam Nabi (respondent herein) in pursuance of the lease agreement he was estopped from denying the title of the landlord. Also on consideration of the evidence on record and the case-law cited before him, the learned District Judge, held that the tenant (appellant herein) cannot got out of the position which he accepted on 19-5-1967, while entering into lease deed with the respondent.
9. I have heard the arguments of the counsel for the parties and perused the record. Mr. Abdul Ghafoor Mangi, the learned counsel for the appellant has tried to argue that the original site of the property referred to as Karachi Hotel was different and after the National Highway was built the hotel had come to be on portion of City Survey No, 822, which was later on renumbered as 822/2 and not 822/1, which was the portion originally belonging to Abdullah. However, this contention which is the only important one to be considered for decision of the appeal, reliance has been placed mainly on the evidence of witness Mir Muhammad Daud-Poto, the City Surveryor of Thatta.
The witness has stated that the hotel is situated on City Survey No, 822/2 and that City Survey No, 822/1 is lying vacant but the assertion of the witness has not been proved to be reliable or correct by his admission in the cross-examination. He has also admitted that he was not Surveyor in the year 1962 at Thatta and that the entries in the survey record bad not been made on the basis of P.
T. D. He was not able to say whether the lines on the map of City Survey' No, 822/2 were put before 1962. He has also admitted that the lines on the map of City Survey No, 822/2 show that it is unconstructed area. He has also admitted that there was no application made by Maj Nawabzada S. M. Ali Zaheer Khan that the Karachi Hotel is unauthorisedly build on his plot. The assertion that the hotel building is on Plot No, 822/2 cannot be accepted because of documentary and oral evidence on record. In para. 4 of the written-statement, it was admitted that Muhammad Ramzan alias Aboo had leased out the hotel to the appellant in the year 1967 and that the appellant had been paying the rent till the end of year 1977 but it is stated that it was only when notice was received from the Civil Court, Thatta for ejectment of the appellant as encroacher that the so-called fraud with regard to plot not belonging to the respondent was revealed to him.
10. There is evidence on record that Abdullah, maternal-grandfather of the respondent, had started the hotel in the year 1951. It is true that the area of City Survey No, 822 Ward 'C' was about 5,133.3 sq.
Yards but the area of plot of land given to Abdullah on lease by the Assistant Custodian, Thatta of which later on P. T. D. Was issued was properly demarcated. The permission for constructing the hotel was granted in 1951 and it is evident from the record that the plot of land was 35' x 25' measuring 97-2 square yards. The order of the Settlement and Rehabilitation Commissioner dated 13-9-1962, which was passed after full inquiry as it was concerning also a cabin put up by Syed Faqir Ali Shah, the relevant portion relating to the hotel and the main Plot City Survey No, 822 reads as under :- "I hold that it was wrong to put to auction a so-called stall of not more than 10 sq. Ft. In area separately from the hotal in the midst of which it was being run by the respondent only by the sufferance of the hotel owner for the convenience of hotel-goers. It was equally wrong to allow its transfer in favour of the respondent at 10% above the highest bid after accepting Rs, 5,200 from the applicant who has a right to it as the owner and the transferee of the hotel. Similarly it was wrong for the local Deputy Settlement Commissioner to include the hotel premises in the open part of the building site which alone was available for auction. The hotel which the applicant constructed with the permission of the Local Assistant Custodian could not have been sold to intervenor Maj. Nawabzada S. M. Ali Zaheer. What could have been legally sold to him is that great major part of the evacuee building site which is not covered by the hotel already sold to the applicant. The building site including the hotel has an area of 5,132 square yards out of which a proportionate reduction for the actual area under the hotel can rightly be claimed by Maj. Nawabzada S. M.
Zaheer while clearing the auction price payable by him. The local Settlement authority should get the plinth area of the hotel measured, and allow a proportionate reduction in the auction price as indicated above. The transfer of the cabin wrongly allowed in favour of the respondent is hereby set aside."
' In the Writ Petition No, 464 of 1968, it was submitted that portion of the plot in occupation of Abdullah was a hotel and construction raised by Abdullah on portion in his occupation had Pacca walls on three sides, the front wall being made of wood and wire gauze as for hotels. It was further stated therein that in the centre there are number of pacca pillars ano that the construction was similar to that of adjacent hotels and shops. The application under Order XXIII, rule 3, C. P. C. In terms of which the petition was disposed of, in para. 2 thereof stated that a portion of the plot was a hotel covering an area of 35' x 25' (97-2 sq. Yards) which was run by respondent Muhammad Ramzan, representing his brothers. The order on the aforesaid application was passed on 7-11-1973 by a Single Judge of this Court and it is, therefore, evident that the pacca hotel was in existence at the time that it was leased out to the appellant in the year 1967 and even in the writ petition filed in 1968, there was no allegation that there had been any encroachment of the structure of the hotel on 97-2 squire yards. Although it is the case of the appellant that he had received by lease hotel which was in dilapidated condition and he had repaired the same by spending lot of money, it is not his case that he had encroached upon further land while repairing the hotel structure. The case of the appellant is that he came to know about the plot belonging to Maj. Nawabzada S M. Ali Zaheer Khan when the bailiff of the civil Court tried to serve notice on him, a copy of which is on the record and is dated 19-12-1968. If he had knowledge about the plot on which the hotel was situated, not belonging to the respondent then why did he execute the lease deed in 1970. There is also the letter of the Assistant Engineer, Highway Sub-Division No, 1, Thatta dated 12-3-1979 (Fxh 83 on the record) that no area of the hotel in question was ever acquired by Highway Department for extension purpose of the road and further that the widening/ improvement of the road in Thatta town was done in 1968. The site sketch of property Plot No, 5/11-A part of City Survey No, 822, Thatta as Karachi Hotel, which was approved by the Deputy Settlement Commissioner, Thatta had been produced by the respondent which also mentions the area to be 35' X 25', i. e. 97-2 square yards which is also the area shown in the settlement record. It is, therefore, quite clear from the evidence on record that Maj. Nawabzada S. M. Ali Zaheer Khan was not the owner of the plot on which the hotel of respondent is situated. It is also significant to note that Maj. Nawabzada S. M. Ali Laheer Khan was not examined as a witness in the proceedings before the Rent Controller even in face of documentary evidence that had been brought on the record. Undoubtedly, therefore, the appellant was tenant of the landlord who was inducted in the premises in the year 1967 and for the reasons already given there is nothing on the record to show that the landlord's title had expired or had been defeated by a title paramount, and under section 116 of the Evidence Act the tenant is estopped from denying the title of the landlord to the demised premises. In Risaldar Azimuddin v.
Dilshad Hussan (I) (a decision of this Court,) it was observed as under :- "Ordinarily, by reason of the rule laid down in section 116 of the Evidence Act, a tenant cannot deny the title of his landlord. But the legal position becomes very different when a third person, who is the real owner, intervenes, and, in that case, the relationship of landlord and tenant comes to an end if the tenant is evicted by this real owner."
' In the instant case as already stated there was no question of Major Nawabzada S. M. Ali Zaheer Khan claiming to be the real owner or intervening in the case. As again already stated he was not even cited as a witness to support the case of the appellant. In Kalimullah v. Amin Hazin and others
(2) (a decision of the Supreme Court) it was observed that once a person has accepted another as his landlord and entered into possession B of the premises as such tenant, he cannot be allowed to challenge the title of his landlord.
For the reasons given there is no weight in this appeal and there are no reasons for interfering with the decision of the First Appellate Court. The appeal is accordingly dismissed, however, with no order as to costs.
(1) PLD 1973 Kar. 284 (2) 1975 SC MR 77