' This appeal is directed against the order dated 30-8-1988, passed by the learned Rent Controller by which he passed an order of eviction against the appellant.
2. The facts in brief are that plot bearing Municipal No,7-7/22-52 situated at Wafa Road, Quetta belongs to Anjumen-e-Islamia (hereinafter referred to as the Anjumen), which was leased out to the respondent by the Anjumen, by means of an agreement dated 7-8-1962 at the rate of Rs,50.31 per month. The respondent brought an application for eviction of the appellant alleging therein that he is the owner and landlord of the Garage in question and appellant is his tenant at the monthly rental of Rs,300 payable on 11th day of each month. The respondent has failed to pay rent since 1984. He also demolished the shed and re-erected it without consent and permission of the applicant. He has also used the premises in such a way which impaired materially the value and utility of the premises in question. On these grounds the application for eviction was filed against the appellant. The appellant contested the application. Various legal objections were taken. It has been denied that the respondent is landlord or owner of the property in dispute as the same belongs to Anjumen, who is original owner/landlord of the premises in question. When the appellant came to know about the ownership of the property, he delivered the possession of the same to Anjumen and thereafter a regular lease-deed was executed by Anjumen and the rent upto date was paid to the said Anjumen.
3. On the pleadings of the parties the following issues were framed:-
(i) Whether there exists relationship of landlord and tenant between the parties?
(ii) Whether the property in question is plot so, to what effect?
(iii) Whetehr the application is bad for non-joinder of necessary party?
(iv) Whether the respondent has committed default in payment of rent from April, 1984?
(v) Whether the respondent has brought material changes in premises in question without consent and permission of the applicant?
(vi) Whether the respondent has committed such acts which have impaired the value and utility of the premises in question?
(vii) Relief?
4. The respondent produced three witnesses. He also appeared as his own witness. The appellant produced four witnesses including himself.
5. The learned Rent Controller decided issues Nos.1 and 4 in favour of the respondent and consequently passed the order of eviction; hence the present appeal.
6. It is contended by the learned counsel for the appellant that Anjumen is owner of premises in dispute but the respondent leased out the same to the appellant by concealment of fact on 17-3- 1976. Thereafter the appellant received a notice from Anjumen and then he started making payment to the Anjumen and lease-deed was executed by the respondent in favour of Anjumen who is original owner of the property. The Anjumen has specifically directed the respondent not to sublet the premises to any other persona In these circumstances there does not exist relationship of landlord and tenant between the parties..
7. On the other hand learned counsel for the respondent submits that the admitted position is that the appellant was inducted as tenant by the respondent and he was regularly paying the rent to respondent, therefore, he cannot deny the title of the respondent. As he has denied the relationship of landlord and tenant, therefore, the tenancy has been determined, as such, the order of eviction has been properly passed by the learned Rent Controller.
8. In order to appreciate the contention of the learned counsel, it is necessary to refer to the various documents filed by the parties in these proceedings. By means of Ex.R/1 dated 7-8-1962 the Anjumen leased out a plot measuring 7,320 Sq.Ft. To the respondent. The tenancy was for a period of 10 years commencing from 1st August, 1962 and terminating on 31-7-1972. It has been further stipulated in this agreement that the respondent would raise temporary construction on this plot and he will bear all the expenses of such construction. If he leaves the plot, reasonable price of superstructure would be paid by the Anjumen to the respondent. If after expiry of 10 years the respondent wants to retain the plot on rent then the tenancy would be extended for a further period of five years and after this extended period of 5 years the respondent would have no claim about the superstructure, and without making any payment of superstructure the Anjumen would oecome the owner of the superstructure. It is further stipulated that the respondent would not sublet the plot or portion of it or constructed house or shop to any other person; otherwise he would be liable to ejectment. According to this agreement the Anjumen would also become the owner of superstructure after 15 years of this agreement and the respondent had clearly undertaken not to sublet the premises to anybody. In violation of such terms of agreement the respondent had sublet the premises to the appellant by means of an agreement dated 17th March, 1976 showing himself to be the owner of the premises in dispute.
9. There is another agreement Ex.R/2 executed between the appellant and Anjumen on 5-9-1984 by which the appellant undertook to make payment of Rs,450 per month as rent to the Anjumen for premises in dispute. R.W.3 Azizuddin Clerk of the Anjumen produced the rent deed Ex.R.2 executed between appellant and the Anjumen.
10. In the light of the above admitted facts it is contended by the learned counsel for the appellant that there does not exist relationship of landlord and tenant between the parties as the respondent has defective title. He has referred to Hans Raj Saling Ram v. L. Niranjan Lal, (AIR 1952 Punjab 159), Province of Punjab through Secretary Education and another v. Mufti Abdul Ghani PLD 1985 SC 1, Muhammad Siddiq v. Mst. Arsh Bibi (1985 CLC 1701) and Abdul Jabbar v. Salahuddin and 4 others (1985 CLC 2594) in support of his contention.
11. On the other hand, as stated above, the principal argument of the learned counsel for the respondent is that the appellant has admitted the tenancy. He was regularly making payment of rent to the respondent. He came into possession of the Garage in question through the respondent, therefore, he is debarred to challenge the title of the respondent unless he delivers the possession of the premises to the respondent. He has referred to Mst. Kalsoom Akhtar and 8 others v.
Muhammad Yaqub (PLD 1976 Kar. 992), Malik Wahid Bux v. Mst. Fazal Bibi and others (1985 SCMR 1256), Messrs Muhammad Isamil & Bros. V. Malik Muhammad Tahir etc. (1981 SCMR 139), Khisro Nawaz v. Khanimullah and others (PLD 1962 Pesh. 124), Shalay and 7 others v. The Member II, Board of Revenue, Baluchistan and others (PLD 1985 Quetta 94), Muhammad Idrees v. Mst. Safia Begum and others (1986 SCMR 795) and Qambar All v. Mst. Khiraj Begum (PLD 1983 Quetta 17). In all the cases cited by the learned counsel for the respondent, the provision of section. 116 of the Evidence Act has been considered and relied upon. It has been observed in Khisro Nawaz's case as under:- "If it is found in a case that a defendant was originally brought on to the property as a tenant, section 116 of the Evidence Act, 1872, would come into play, estopping the tenant from denying the title of the landlord during the continuance of the tenancy. A tenant cannot set 'up in himself a hostile title against his landlord, without first surrendering the possession of the property, and unless he does so and regains the possession in his own rights hostile to the landlord he cannot successfully set up the plea of adverse possession; he shall be presumed to be in permissive possession of the property on behalf of the landlord and possession for purpose of limitation will be deemed to be that of the landlord."
' It is to be considered whether the provisions of section 116 of the Evidence Act are applicable to the facts of the present case and the appellant is debarred to challenge the title of the respondent. No doubt if a landlord has inducted a person to premises as his tenant he (tenant) cannot change the position simply by denying the title of his landlord. In case the tenant wishes to dispute the title of such landlord he must first surrender the premises to the landlord whom he had accepted as his landlord and acknowledged liability to pay the rent. But it cannot be said as absolute rule of law that general principle of section 116, Evidence Act would apply in each and every case. In order to apply the provisions of section 116 it must be proved that possession of the property has been taken with the permission of the landlord. If these two conditions are fulfilled only then the principle of estoppel would apply. In the present case admitted position is that the respondent was not permitted by the Anjumen to sublet the premises. Sub-tenancy is not permitted by the provisions of Urban Rent Restriction Ordinance unless it is created with the consent of the landlord. Under section 13 of the Ordinance a tenant may be evicted from the premises if he transferred his rights under the lease or sublet building or rented land or any portion thereof without written consent of the landlord. In the present case the landlord had not given such permission to the respondent.
12. The learned counsel for the respondent has submitted that as the appellant was inducted as a tenant by the respondent, therefore, he is a tenant and respondent is landlord. This contention has no force. The facts narrated above would clearly establish that there does not exist relationship of landlord and tenant between the parties within the framework of the Ordinance. In order to elauidate this point further, I may refer to the definitions of "landlord" and "tenant". Under the Ordinance under section 2(c) landlord has been defined as under:- "'Landlord' means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf or for the benefit of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter authorised and every person from time to time deriving the title under a landlord."
' The tenant has been defined in section 2(i) as follows:- "'Tenant' means any person by whom or on whose account rent is payable for a building or rented land and includes (a) a tenant continuing in possession after the termination of tenancy in his favour, and (b) the wife and children of a deceased tenant, but does not include a person placed in occupation of a building or rented land by its tenant, unless with the consent in writing of the landlord or a person to whom the collection of rent or fees in a public market, cart-stand, or slaughter-house or of rents for shops has been farmed out or leased by a municipal, town or notified area committee, or by the corporation of the city of Lahore or by the Lahore Improvement Trust or any other Improvement Trust."
' According to the definition of landlord a tenant who sublets any building with the permission of the landlord becomes a landlord. C Provisions of the Ordinance do not permit a tenant to sublet the building unless authorised by a landlord. Similarly a person who has been placed in occupation of a building or rented land by its tenant without the consent of original owner landlord does not become a D tenant under the Ordinance. In this case the landlord is the Anjumen. The respondent was its tenant. He was not permitted to sublet the premises, therefore, the respondent is not landlord nor the appellant is the tenant of respondent. It may also be noted that learned counsel for the parties have stated at the Bar that an eviction application against the respondent and the appellant has been filed by the Anjumen and one of the grounds taken in that eviction application is that respondent has sublet the premises to the appellant.
' In Hans Raj Salig Ram v. L. Niranjan Lal (AIR 1952 Punjab 159) while referring to the similar provisions of Rent Restriction Ordinance it has been held as under:- "Taking the words 'landlord' and 'tenant' together as used in the definition Section of the Act of 1947, firm Hans Raj Salig Ram cannot be termed landlords because they are not "a tenant who sublets any building in the manner authorised under the Act" because the building was not rented to him with the consent in writing of the landlord. The jurisdiction of the Controller under section 13 extends only to persons who are landlord and tenant as defined under the Act and therefore firm Hans Raj Salig Ram could not make an application to the Rent Controller who had no jurisdiction under the Act."
' In Abdul Jabbar v. Salahuddin and 4 others (1985 CLC 2594 Quetta) it has been held that a tenant who lets out premises with permission of landlord is included within the definition of landlord.
13. In view of the above-stated facts as there does not exist relationship of landlord and tenant, the Rent Controller had no jurisdiction in the matter.
14. The provisions of section 116 of Evidence Act are not applicable in this case and no assistance can be sought by the respondent from section 116 of Evidence Act. It is laid down in Kumar Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern, Ltd. And others (AIR 1937 Privy Council 251) as under:- "Section 116, Evidence Act, does not deal or profess to deal with all kinds of estoppel or occasions of estoppel which may arise between landlord and tenant. It deals with one cardinal and simple estoppel and states it first as applicable between landlord and tenant and then as between licensor and licensee, a distinction which corresponds to that between the parties to an action for rent and the parties to an action for use and occupation. The section postulates that there is a tenancy still continuing, that it had its beginning at given date from a given landlord. It provides that neither a tenant nor any one claiming through a tenant shall be heard to deny that particular landlord had at that date a title to the property. The section applies against the lessee, any assignee of the term, any sub-lessee or licensee. What all such persons are precluded from denying is that the lessor had a title at the date of the lease and there is no exception even for the case where the lease itself discloses the defect of title. The principle does not apply to disentitle a tenant to dispute the derivative title of one who claims to have since become entitled to the reversion, though in such cases there may be other grounds of estoppel, e.g., by attornment, acceptance of rent, etc. In this sense it is true enough that the principle only applies to the title of the landlord who "lets the tenant in" as distinct from any other person claiming to be reversioner.
Nor does the principle apply to prevent a tenant from pleading that the title of the original lessor has since come to an end."
' In Muhammad Siddiq v. Mst. Arsh Bibi 1985 CLC 1701 it has been observed that tenant might resist eviction sought to be enforced by landlord by raising plea that landlord's title had come to an end.
' In Makhan Bano v. Haji Abdul Ghani PLD 1984 SC 17 it has been observed an 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 SCMR 886."
' This case has also been relied upon in Province of Punjab through Secretary, Education and another v. Mufti Abdul Ghani PLD 1985 SC 1 as under:- "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) 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 estoppel 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 depend upon the facts and circumstances of each case."
' It has been further observed in the above authority as under:- "The denial is regarding the change of position by the said transfer. The 'principle and rule embodied 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 termination thereof. Moreover, it should be of the landlord who "let the tenant in and not of any other person."
15. Keeping in view the fact and authorities cited at the Bar it can be safely -concluded that the appellant can dispute the title of The respondent and the provisions of estoppel would not run against him.
16. Upshot of the above discussion is that the appeal is allowed, the order of the Rent Controller is set aside and the application for eviction filed by the respondent against the appellant is dismissed leaving the parties to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.