1. WAHEEDUDDIN AHMAD, J.-This appeal by special leave is directed against the judgment of the Peshawar High Court, Peshawar to R. S. A. No. 114 of 1969, dated the 8 October 1971. By this judgment, the appeal was accepted and the decree of the Courts below was set aside. It was directed that the plaint be returned to the appellant for presentation to the proper forum.
2. The dispute between the parties is in respect of an open plot of land measuring 2 kanals and one marla, along with 5J shops situated in Sarfraz Ganj, Mardan. This property was leased out by late Dost Muhammad Khan to one Mana Singh, proprietor of Mana Singh & Company on the 26th May 1945. The lease deed was registered on tae 20th June 1945. The terms of the lease deed were as under :-
(1) The period of lease was for 20 years commencing from the 1 April 1945.
(2) The rent of the property was fixed at Rs. 155 p.m.
(3) The lessee was to construct the cinema building on the site at his own expense and ho was entitled to sub-let the same at his own discretion.
(4) After the expiry of the agreed period the lease was renewable by the consent of both the parties failing which the lessor was to determine the price of the structure with the aid of the arbitrator to be appointed by him and the lessee was to accept the said amount or else was to remove the structure and vacate the site.
3. After the lease agreement, Mana Singh came into possession of the property and on the vacant site, he constructed a cinema building which came to be known 'Golden Cinema'. Maria Singh continued the cinema business till partition of the Indian Sub-continent when he migrated to India and his interest in the leased property became evacuee property and was vested in the Custodian.th st The respondents who were share-holders in Maria Singh Company, succeeded to acquire the interest of Maria Singh from the Custodian and are in possession of the disputed property.
4. After the expiry of the lease, the appellant who had become the sole owner of the leased plot and 5 -- shops, served notice on the respondents on the 10 February 1965 to vacate the premises by accenting Rs. 65,000 which he fixed as the price of the structure. He further requested that in case the money was not acceptable, the respondents were entitled to remove the structure 1n terms of the lease deed. The respondents, in reply to the notice, took up the stand that the lease being perpetual in nature, they were not liable to ejectment unless they were paid Rs. 5,00,000 which was the minimum price of the structure. Thereupon, the appellant Noor Muhammad Khan filed a suit against the respondents to the Court of Senior Civil Judge, Mardan for possession by ejectment and for mesne profit of Rs. 400 at the rate of Rs. 200 per day for two days, namely, 1 and 2nd April 1965. The respondents contested the suit and on the pleadings of the parties, as many as 14 Issues were framed. It is unnecessary to reproduce them because the dispute between the parties centred round the issue No. 4 which is as under: - "Whether the suit is not cognizable by the civil Court?"
5. The trial Court held that the suit was cognizable by the civil Court in respect of the vacant plot of land. In view of this finding, the appellant's suit in so far as his claim for the posses--sion of the vacant plot is concerned, was decreed subject to his paying Rs. 1,19,647 to the respondents as the price of the structure. It was dismissed in respect of the possession of the shops on the ground that the tenants thereof could only be ejected by resort to proceedings under the West Pakistan Urban Rent Restriction Ordinance (VI of 1959). The claim of mesne profit was also disallowed and instead decree was passed for the recovery of two days' rent at the rate on which the property had been leased out to the respondents. Both the parties challenged the order of the trial Court in appeal before the Additional District Judge, Mardan, who dismissed the appeal of the respondents but decreed the appeal of the appellant with regard to the mesne profit by awarding him Rs. 170 per day as damage. The respondents challenged this judgment in appeal before the Peshawar High Court. A Division Bench of the Peshawar High Court, by judgment dated the 8th October 1971, came to the conclusion that the civil Court had no jurisdiction in the matter and the dispute between the parties was exclusively triable by the Rent Controller. The appellant was directed to present the plaint to the Rent Controller. The appellant has challenged this judgment in appeal before us.
6. Special leave was granted In this case to consider the question whether a suit for removal of the structure was maintainable before the Rent Controller or not.
7. Sh. Muhammad Shafi, learned counsel for the appellant has contended that the West Pakistan Urban Rent Restriction Ordinance (VI of 1959), hereinafter called the Ordinance, applied to the residential buildings, non-residential buildings, scheduled buildings and rented land. In the instant case, no building of any sort was rented out to Maria Singh. A piece of land and 51 shops were rented out not for the purpose of trade or business construction of cinema house which remained the property of the lessee until paid for by the consent of the parties. According to him, the lease of such a piece of land or property was not covered by the Ordinance. He further contended that under the Ordinance, the Rent Controller was not competent to bass an order either for the removal of structure or for the payment of price of the building or for mesne profits. According to him, this could only be done by the civil Court. His contention is that the jurisdiction in respect of the property as it stood at the time of institution of the suit vested exclusively in the civil Court. The contention of the, learned counsel has not impressed us. It will be noticed that in the present case, the appellant's predecessor-in-interest leased out a vacant plot of land along with 5 1/2 shops to Maria Singh. The property leased out comes within he definition of "building" in the above mentioned Ordinance. The definition of 'building' reads as under:-th st "'building' means any building or part of a building let for any purpose, whether being actually used for that purpose or not, including any land, godowns, outhouses, together with furniture let therewith but does not include a room in a 'sarai', hotel, hostel or boarding house."
8. It will thus be seen that the terms 'building' is very wide ands Includes any land lot therewith. In the present case, 5 -- shops were leased out and along with it, a vacant piece of land was also A let out to Mana Singh. In such circumstances, it is quite clear that the lease of the vacant piece of land was of a building which falls within the definition of "building" in the said Ordinance.
9. Apart from that even if the lease is taken to be of two properties, namely, a vacant piece of land and 5 -- shops; vacant piece of land falls within the definition of rented land. Section 2(f) defines the 'rented land' as under :- "'rented land' means any land lot separately for the purpose of being used principally for business or trade."
10. It is not disputed that the vacant piece of land was let out for constructing a cinema house and for carrying on cinema business. Thus the land in dispute was let out for the purpose of being used principally for business or trade and, therefore, falls within the above definition.
11. After carefully considering the arguments of the learned counsel for the parts, we are satisfied that the property in dispute falls within the definition of "building" or "rented land" and the Rent Controller has jurisdiction in the matter to determine the dispute between the parties.
12. It will be further noticed that under section 13 of the said Ordinance, it is provided that a tenant in possession of a building or rented land shall not be evicted there from in execution of a decree passed before or after the commencement of this Ordinance, or otherwise, and whether before or after determination of tenancy, except in accordance with the provisions of this section. The Peshawar High Court was perfectly justified in holding that this impliedly ousts the jurisdiction of the civil Court in respect of the promises which are covered by this Ordinance. The contention of the learned counsel for the appellant that since the Rent Controller would have no jurisdiction In respect of the relief for mesne profits and demolition of superstructure, the matter is triable by the civil Court. The contention of the learned counsel is not well founded. So far as the question of mesne profits is concerned, it is open to the appellant to file a suit for that purpose in the civil Court.
13. As regards the demolition of superstructure, the Rent Controller has jurisdiction to direct the respondents to demolish the superstructure and vacate the site. In section 13 of the Urban Rent Restriction Ordinance the word used is 'eviction' and the eviction would include the removal of the superstructure also.