1. ' MUHAMMAD AFZ&L ZULLAH, ACIG. C. J.-This appeal through special leave of this Court is directed against the judgment dated 4-6.1978 of the Lahore High Court; whereby the second appeal against orders of eviction of the appellants on striking off of their defence, under the Rent Restriction Ordinance 1959, was dismissed.
2. Leave to appeal was granted to examine whether Mufti Abdul Ghani respondent was the owner and thus the landlord and whether without decision on a plea raised by the appellant in this behalf the learned Rent Controller could direct deposit of rent under section 1 (6) of the Ordinance.
3. ' The facts and circumstances noted for the grant of leave to appeal are as follows "Mufti Abdul Ghani, respondent filed an application on 19-9-1975, under section 13 of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) for ejectment of (1) Province of the Punjab and (2) The Director of Education (hereinafter called as tenants) from the property in dispute which consisted of a building in which was located a school by the name of Muhammadia Primary School for Girls, Mohni Road, Lahore. The learned Rent Controller by means of his order dated 17-3-1977 directed the tenants to deposit an amount of Rs, 76,500 being arrears of rent for the period 1-1-1973 to 31-3-1977 at the rate of Rs, 1,500 per month and future rent at the same rate by the l'th of the month following the one for which the rent was due. The tenants deposited the requisite rent, but so far as the rent for the month of May, 1977, was concerned and which was to be deposited by the 15th June, 1977, the same was deposited on 20-6-1977 after a delay of 5 days Finding no sufficient cause for the aforesaid delay, the learned Rent Controller by means of his order of 16-7-1977 struck of the defence of the tenants and directed that the landlord should be put in possession of the property aforesaid. The tenants filed an appeal but without any success as the same was dismissed by the learned District Judge on 10-4-1978. The tenants filed a second appeal which also met the same fate and was dismissed by a learned Single Judge of the Lahore High Court on 4-6-1978. It was argued by the learned counsel for the appellants that his clients had taken up a plea before the learned Rent Controller that the ejectment application against them was not maintainable and that there was no relationship of landlord and tenant between the parties inasmuch as Mufti Abdul Ghani was neither owner nor the transferee of the property in dispute and had even otherwise no locus siandi to institute any action against the appellants. It was submitted that before directing the deposit of rent, the learned Rent Controller should have decided the aforementioned objections which went to the very root of the case and the jurisdiction and competency of the learned Rent Controller in taking up or proceeding with this matter. It appears that the objections aforesaid were raised before the learned Rent Controller but were not taken note of. The question whether in these circumstances any order for deposit of rent could have been passed required consideration."
4. ' Learned Additional Advocate-General appearing for the appellants has contended that the property in question admittedly being evacuee, was ordered to be transferred to the "Muhammadia Girls School" for public purpose under section 10(2) of the Displaced Persons (Compensation and Rehabilitation) Act 1958 and not under the schedule to the Act, to Mufti Abdul Ghani respondent in his individual capacity. Therefore, he had no right to recover rent and thus was not the landlord. He has relied upon a letter dated 7-5-1962 by the Central Government to the Chief Settlement Commissioner and the formal order dated 21-2-1979 passed in pursuance thereof.
5. ' The above plea was taken before the learned Rent Controller in a written application on 2.12-1975 but it was not examined before the order for the deposit of rent; as allegedly the same was not brought to his notice at the relevant time. Instead it was assumed that the relationship of landlord and tenant existed between the parties. The omission having been realised subsequently, a writ petition was moved by the appellants in the High Court but the same was dismissed.
6. Notwithstanding the same, this plea was again not pressed in the 1st and 2nd appeals against the order of the striking of the defence. Permission to argue the appeal on the said basis was granted in this case despite the above noted omissions on the part of the appellants, because due to legal implications regarding res judicata, the appellant might otherwise have suffered immense loss of valuable property without trial of the vital issue of the title therein.
7. ' Learned counsel for the respondent in all fairness contested the appeal on the assumption that the property was indeed ordered to be transferred in public interest under section 10(2) of the Act and that too to the 'School' and not to his client in his individual capacity. He however vehemently argued that it would not make any difference in so far as his right to recover the rent is concerned and that would be enough to establish the relationship of landlord and tenant.
8. ' He has amongst others raised the following contentions which only are relevant for the disposal of this appeal :-
(i) While agreeing that the order dated 7-5.1962 for transfer of the plot of land underneath the building of the School shows that it was transferred to the 'School' and not to the respondent, he emphasised that it was for public purpose only as was visualised by section 10(2) of the Displaced Persons (Compensation and Rehabilitation) Act 1958 and School as such would be the beneficiary.
9. But, he pointed out that it was a mere 'order to transfer', only if as provided therein the specified conditions were satisfied-one of them being that no one elm was entitled to transfer under the Schedule to the Act. Hence it was not a final transfer to the School. A formal order of transfer was yet to be passed. In this connection he, while accepting that a formal Transfer order was passed on 21-2-1979 by a Deputy Settlement Commissioner in favour of "the School" with endorsement thereon regarding order dated 7-5-1962, raised the question, as to who paid the price with what effect on tenancy-it needed consideration.
(ii) That although the use of the property will have to be for public purpose, the respondent spent his money to raise the building on the plot transferred to the School. Therefore, to the extent of the building he is entitled to recover rent subject to the restriction that the building can be used for public purpose only. He further pointed out that the possession having been obtained from the appellants who shifted the nationalised Government Muhammadia Schools (Primary and High both) to other premises, the respondent is running a School in this building with the same name which is in itself a public purpose. OM That although the respondent did receive some money in grant and aid from the appellants for the building but besides being a fraction of the entire spending, according to the Punjab Education Code, it did not change the character of the ownership in the building. He in this behalf amongst others also relied upon a direction dated 17-1- 1978 issued by the appellant No, 1, to the effect that the rent for the nationalised school buildings shall be paid to the former managements as "legal obligation" regardless of the fact whether they were built partly or wholly with Government funds.
(iv) The aforementioned obligation to pay the rent to the respondent would, it was finally canvassed, constitute the relationship of landlord and tenant and that if the appellants wanted to deny the respondents' right to recover rent and the title in the building in question, they could do so only by vacating the same and then filing a suit. He relied on section 116 of the Evidence Act and other related provisions.
10. ' Learned Government Advocate pointed out that although the ejectment order was regarding the building occupied by the nationalised Primary School, the respondent, in execution thereof has illegally ejected the nationalised High School also. He however, undertook that if the building is restored to the appellants on behalf of the nationalised Schools, they would not displace the students of the School now being run by the respondent in the same building and that the appellants would themselves undertake the running of the said School therein.
11. ' He further contended that the concession made from the respondents side regarding the basic issue of the transfer of the plot to the 'School' and not to an individual-the respondent, must be taken to its logical ends with the implication that the building constructed thereon by him with the Government help shall have to be treated as an accretion to the property of the School and that being so he was not the owner nor was in any capacity whatsoever, entitled to recover the rent. He did not agree with the interpretation by the respondents' counsel of the relevant provisions of the Education Code nor the letter of the Government dated 17-1-1978. According to him the "legal obligation" to pay the rent referred therein was regarding the properties which were transferred to and/or otherwise belonged to the former owners/managements of the School. If such owners utilised the Government aid in making additions to the existing buildings or reconstructing or raising new buildings. The Government undertook to pay the rent mainly because the p:operty as such stood transferred to or otherwise belonged to the private owner. Here the respondent admittedly was not the transferee of the property (the plot under the building).
12. ' Learned Government Advocate also contested the proposition that in this case the appellants should file the suit so as to deny the respondent's title and establish that of the Nationalised School.
13. He in this behalf amongst others relied on the original order to transfer dated 7-5-1962, the Order of transfer dated 21-2-1979 and also the concession made from the respondent's side during the hearing of the appeal to the effect that order dated 7-5-1962 was in favour of the School and not in favour of the respondent.
14. ' Some factual aspects of the case need to be dealt with in the first instance. In this, as in many other rent cases, the ownership is the only basis for establishment of relationship of landlord and tenant because that alone in the etrcumstance3, could entitle the respondent to claim and recover rent. The ownership question has two facts. The plot admittedly stands transferred to the School. It could have been an entirely different situation if tr. e transfer was in the name of the respondent.
15. The scrutiny of the letter dated 7-5-1962 relied upon by both sides revealed that in reality it is an order whereby the Central Government "in exercise of powers conferred under subsection (2) of section 10 of the Displaced Persons (Compensation and Rehabilitation) Act 1958" did, "order the sale of the following properties :- "Plot Bearing Khasra Nos. 3306, 3307, 3305 and 3310 measuring about Kanals situated at Mohni Road, Lahore." to the Muhammadia Girls School, Lahore on payment of the average auction price to be determined by you on the conditions that :- "(1) the properties in question are not transferable to any person under the provisions of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Acts 1958 ; and
(2) that the price of the properties is recovered before the transfer is effected."
16. It is no body's case that any of the conditions was not satisfied. In fact the formal transfer ordei dated 21-7-1979, in favour of the School contains a reference to the order of 7-5-1962 and Condition No, (1) mentioned above without any doubt about its fulfilment. Regarding the C onoition No, (2) also the transfer order does not show that it was not fulfilled by the transferee School. Had it been otherwise, the transfer order could not be in favour of "the School" and indeed some one including the respondent might then have raised an objection to this transfer. But there was none.
17. Thus, the ownership of the plot in this case is that of "the School" as distinguished from the building and properties owned by the "individual owners" but occupied by the Schools as tenants or otherwise under the owner. The fact that the respondent, after the ejectment of the appellants and their School is also running School at the same place for a public purpose as stated by his learned counsel would not make any difference in so far as the afore-noted transfer made for public purpose to the School is concerned. It will not clothe him with the ownership of the plot which as stated earlier is the only basis in this case for right to recover rent-the rationale for claiming relationship of landlord and tenant.
18. ' The ownership of superstructure on the plot presents not only a different picture but also a difficult factual problem. The ownership of the plot required determination with reference to the Settlement Law and Orders passed thereunder; but the ownership of the building is being claimed for other reason by both sides. This needs factual determination. The respondent does not deny the contribution of the appellants in raising the structure, but at the same time asserts his own contribution. Evidence could not and has not been received in this Court regarding the exact position vis-a-vis each party's contribution. The argument of the learned counsel for the respondent to claim for him the ownership of the building on the basis of Punjab Government letter dated 17-1-1978 is of no avail to him in the circumstances of this case. The relevant part thereof reads as follows : "The matter regarding settlement of rent in respect of the buildings which belongs to the former managements and were built partly or wholly with Government aid and for which previous managements were getting rent from the educational institutions prior to rationalization was referred to the Finance Department. That department has agreed that payment of full rent as agreed to between the managements and owners being a legal obligations may be followed."
19. This direction related to the buildings which belonged to the former managements whether they are individual ordinary owners or transferee owners from the Settlement Department and not to the buildings or plot owned by "the Schools" themselves by way of transfer from the Settlement Department, as in this case. Similarly any other general action of the Government recognising the former type of owners as landlords or owner entitled to receive rent is not of any help to the respondents. We are also B not impressed by the argument of the learned counsel for the respondent that the Education Code would clothe the respondents with the ownership or right to recover the rent for the building without actual proof of its ownership. It has to be proved like any other similar fact. There is no escape or short cut for him, Nevertheless the factual controversy raised by the respondent that he also made some contribution in raising the building in addition to the Government contribution ; as would be presently seen has to be dealt with in accordance with the law already declared on this subject by this Court in the case of Rehmatullah v. All Muhammad and another (1).
20. ' Two main questions, amongst others, were examined in that case. "One, whether when acting under the Rent Restriction Law a Controller or a Court in appeal can decide issue of relationship of the landlord and tenant in favour of the landlord even when there is a doubt about the strength of his case or to put it otherwise, the material brought on record by the tenant has made the landlord's claim doubtful. And two, whether in such a situation, the tenant and not the landlord should be left/advised to seek remedy in a civil Court"
21. Regarding the first question it was made clear that when a person relying on the opening part of the definition of landlord in section 2(c) of the West Pakistan Urban Rent Restriction Ordinance (No, VI) of 1959 bases his claim on the right to receive rent on account of the ownership of the property, he C will have to "satisfy" the Rent Controller about the title. If he succeeds, he would be adjudged as landlord. If he fails to satisfy, the sent Controller, the verdict will be against him. And further if the Rent Controller's satisfaction is not beyond reasonable doubt even then the verdict on this question will be against him.
22. In this case obviously as discussed above the basis of respondent's claim to be adjudged as landlord is his alleged claim to receive the rent on the basis of ownersnip of the property. It has also been found that the land underneath the building does not belong to him. It has been transferred to "the School" which belongs to the appellants. Thus to that extent the respondent is not entitled to recover the rent and is, therefore, not the landlord. Regarding the superstructure also it is not denied that the appellants made D substantial contributions to the raising of the superstructure, though their claim is that the same also belongs to them in its entirety. The respondent has made a confident challenge to this claim ; but has not succeeded beyond reasonable doubt in establishing before us that he also partly owns the superstructure on account of some contribution which he might be able to establish as and when an occasion and opportunity arises. Thus, his claim to the status of being the landlord regarding the superstructure also does not go beyond the stage of a mere possibility. Hence having failed to create satisfaction which is beyond re is noble doubt on this vital question could not be adjudged as landlord. That being so no relationship of laidlor and tenant having been established this appeal must succeed on this ground.
23. The last argument of the learned counsel is based on the rule of estoppel contained in section 116 of Evidence Act. He is right that under the general law broadly speaking a tenant during the subsistence of the tenancy, cannot question the title of the landlord as it stood at the commencement of the tenancy. If he desires to do so he must first surrender the possession to the landlord and then may dispute his title. If he fails to observe this rule then under section 111 (G) (2).
24. Of the Transfer of Property Act also, his right to tenancy itself would be forfeited on observance of certain procedural and other conditions. In so far as this general rule of estopple vis-a.Vis a tenant and landlord is concerned, it cannot have uncontrolled application to . The cases to be determined under the special rent restriction laws. It will
(1) 1983 SCM R 1064 depend upon the facts and circumstances of each case. In a recent judgment Makhan Bano v. Haji Abdul Ghani (1), this Court held as follows "So far as the specific ground on which the leave to appeal was granted, the tenant's denial of the landlord's title simpliciter does entail forfeiture under the general law but cannot by itself and independently be a ground sufficient for securing his ejectment. This is so because notwithstanding the contract, the tenant occupies the premises and his ejectment is controlled by the provisions of the Ordinance. His denial of landlord's title is relevant for the purposes of granting or refusing him an equitable discretionary relief when such denial is coupled with a manifest breach of his statutory duties as provided under the Ordinance. Reliance is placed for this on Amanullah Khan v. Chotey Khan (1978 SCMR 14), Muhammad Shah Alam v. Muhammad Abdul Ghafoor (1979 SCMR 443) and Muhammad Yusuf v. Asghar Hussain (1980 SCM R 886).
25. In this case it is to be observed that the rule of estoppel (and forfeiture) would not apply also because the denial by the appellants is not regarding the title of the respondent vis-a-vis "the beginning of the tenancy", even if it is assumed to have existed before the transfer orders were passed in 1962 and also in 1979 in favour of the School.
26. The denial is regarding the change of position by the said transfer. The principle and rule embodizd in section 116 Evidence Act is not attracted in all cases of dispute over title between landlord and tenant. One exception as in this case is the denial vis-a-vis a stage after "the beginning of the tenancy". Another condition is that the denial should be during the continuance of the tenancy and not after the determination thereof. Moreover, it should be of the landlord who let the tenant in' and not of any other person.
27. ' In this case before the transfer the landlord was the Custodian/Settlement Department.
28. Thereafter, the so-called tenant (the School) became the owner. No question then could arise of the application of this rule. The statutory tenancy dealt under section 30 of Displaced Persons (Compensation and Rehabilitation) At 1958 did not come into being because the respondent never became a transferee. The intervention of a "paramount owner" also is involved in this case and when this happens, the rule of estoppel would not apply. Looked at from whatever angle, the argument of the learned counsel has no force.
29. During the discussion on the last argument learned counsel expressed the view that the indiscriminate application of the rule laid down by this Court in the case of Rehmatullah, by the Rent Controllers, his experience shows, has caused harm to the interest of the landlords. Firstly such a general apprehension cannot by itself be the basis for statutory interpretation. Secondly, it might be due to the ignorance of a very essential condition of avoidance of the estopple on the denial of title. It is to the effect that in all ordinary cases if a tenant wishes to dispute the title of the person with whose permission he obtained the possession as tenant, he must first surrender the possession before doing so. I here can be exceptions to this general rule but there is not doubt about the initial afore-stated impact thereof. For example, in the case of Rehmatullah the so- called tenant who was himself prima facie adjudged as owner by the Rent Controller was not inducted or let in as tenant by the so-called landlord. The claim by the latter in this behalf was held by Rent Controller to be based on forgery and fraud. And
(1) PLD 1984 SC 17 thirdly, it was emphasised in that case and we reiterate it that the Rent Controller has, in every such case, to make distinction between genuine and well founded dispute about the title and that which is vexatious (designed to achieve delay), frivolous or without founaation. Unless this aspect is willingly ignored, a Presiding Officer of ordinary experience would be able to make the distinction between the two. And in the latter case he shall be under a duty not to permit the challenge to the title. Guidance in this behalf is also available in the case of Rehmatullah itself. The Rent Controller who ignores these very vital considerations might be deemed to be failing in an important duty.
30. The following observations in the case of Rehmatullah are relevant in this behalf : "As already noted there would remain some concern and anxiety for the Courts due to one of tne commands and the objects of special law regarding speedier proceedings which excludes the application of C. P. C. And Evidence Act. Cases would still come before the Controller wherein due to these constraints it would not be possible at all for him to give a firm decision on controversial question of title. Those would incidde the present type also wherein although the Rent Controller positively gave a firm finding that the appellant, the so-called tenant, is himself the owner of the property ; and that, the respondent tried to oust him through forgery of title documents, the finding of the appellate Court of fact is that the so-called landlord has not been able to establish his claim regarding title to the property and consequent position as landlord, beyond doubt.
31. ' It is in this context that the next question arises, whether in the proceedings under Rent Restriction Ordinance, a party can be left to seek remedy/declaration from the civil Court, if so which one. One answer can be given straightaway. Whatever the jurisdiction delicacies might emerge in the examination thereof, the fact remains and the law is clear that either of the party can (and in proper cases, should as a matter even of due caution) offer to go to the civil Court with necessary temporary adverse consequences injurious to it vis-a-vis the Controller and his higher forums. That is, the landlord would drop/ withdraw proceedings till the clearance of title from the civil Court ; and vice versa the tenant would vacate the premises by offering to get his plea regarding title adjudicated by a civil Court with mandate of re-entry. But lot would depend in these situations whether or not the plea about title is not frivolous and vexatious. A non-genuine party might attempt to get a favourable decision by default of other before the Controller and avoid such a daring offer for a full-fledged regular civil Court trial.
32. ' What is permissible for Courts of general jurisdiction in the field of fair play, justice and equity when there is no statutory bar, is also permissible for the Controller. He can, in a given case even when the landlord has discharged the initial burden in a title involving case, on the tenant creating genuine and reasonable doubt about the same, refuse to eject the tenant and can leave the landlord to a remedy. In a civil Court, first and then again approach to the Controller. Even when the tenant has not succeeded before the Controller to create the required 'reasonable' doubt but has convinced him that his plea is not frivolous and/or vexatious, but due to constraint of summary/speedy procedure, has failed to create the required satisfaction or doubt, while ejecting him, the Controller can leave scope for civil suit by observing so and where he fails to do so, higher Court can do the same."
33. The last question arises whether the respondent, in this case be permitted to re-agitate the matter in the civil Court. There is no doubt or need for further enquiry on the question that the transfer of the plot was made to 'the School' and the building also does not belong exclusively to the respondent and that there is no relationship of landlord and tenant He cannot be permitted to re- agitate these questions in the civil Court. He may however get his interest in the superstructure determined by the civil Court so as to seek compensation therefor in accordance with law.
34. ' Before closing this judgment it needs to be observed that the material being sufficient and in view of the position taken by the parties we have decided the necessary questions and did not find it essential in the circumstances of the case to remand the case to the learned Rent Controller who had failed to consider the question of ownership inter alia on the ground that he had no jurisdiction to do so.
35. ' As a result of the foregoing discussion this appeal is allowed, impugned orders including of Rent Controller are set aside. Respondents' application for eviction is dismissed. Possession shall be restored to the appellants in accordance with the law. There shall be no order as to costs.
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