This is a Regular First Appeal against the judgment and decree dated 14-7-1988 passed by Additional District Judge-II, Quetta whereby the learned Judge decreed the suit for possession of land situated at Pir Muhammad Road, Quetta.
2. Facts in brief for filing this appeal are that appellants Nos.l to 6 are successors-in-interest of late Sahib Jan whereas Sultan Jan is the business partner of the said Sahib Jan. Sahib Jan occupied the premises bearing Municipal No.7-21/137, Khewat No.42, Khatooni No.63 measuring about 10,000 sq.
Ft. In Ward No. 16 Urban Quetta from respondent on rent at the rate of Rs.160 per month. It is the case of the appellants that the respondent being landlord started compelling the appellants for enhancement of the rent and at the refusal of the appellants stopped receiving rent. It so happened that in the winter season of 1982 a wall measuring 4 x 5 yards of the said premises fell down because of heavy rainfall and the appellants requested respondent /landlord to construct the said wall but said request was turned down. In such circumstances the appellants 1 to 6 filed an application under section 12 of Baluchistan Urban Rent Restriction Ordinance (1) VI of 1959, (hereinafter referred to as the "Ordinance") in the Court of the Controller seeking permission to construct the wall. The said application was, however, contested by the respondent /landlord. The respondent took the plea that demised premises is not a "rented land" and therefore the jurisdiction of the Rent Controller was challenged. An issue was framed on 11-10-1982 in respect of jurisdiction of the Controller and the Controller ultimately held the premises as a rented land vide order dated 28-2-1988.
3. Respondent, however, filed a civil suit for possession of the premises in the Court of Civil Judge, Quette on 28-3-1985 against the appellant on the ground that as the premises was not a rented land and was leased out from month to month and that having contravened the terms of the lease the tenancy was forfeited through issuance of notice under section 106 of the Transfer of Property Act and thus the respondent claimed entitlement of the possession of the said premises. The present appellants contested the averments and also challenged the jurisdiction of the Court on the ground that the premises was already held as rented land by the Controller and therefore the suit was incompetent in view of relationship of landlord and tenant. However, the said objection was overruled and the learned Additional District Judge-II, Quetta passed a decree for possession of the premises in favour of the respondent on 14-7-1988. It is this decree which is under challenge in appeal before me.
4.Heard the counsel for the parties .At considerable length.
5. The learned counsel for the appellants Mr. W.N. Kohli, inter alia, urged that as the premises was a rented land and was so declared by the Controller in rent proceedings under section 12 of Ordinance, therefore, the civil Court had no jurisdiction to entertain the suit which was incompetently filed. It was further contended that the learned Additional District Judge-II, Quetta was not vested with powers and jurisdiction of Controller and as a civil Court it had no jurisdiction to have dilated upon and proceeded with the matter. By doing so in fact the learned trial Court usurped the jurisdiction of the Controller. On merits it was contended that the learned Court misappreciated evidence and failed to consider some relevant pieces of` evidence, therefore, the conclusions so drawn are unwarranted. It was thirdly canvassed that the plaint was undervalued. It was also urged that as notice under section 105/106 of the Transfer of Property Act was not brought on record and proved, therefore no cause of action has accrued.
6. While controverting the aforesaid arguments the learned counsel for the respondent Mr. Tahir Muhammad Khan pleaded that the Controller comes into picture and can under the Ordinance or exercise jurisdiction only when a remises is a rented land. If it is not proved that the premises is a rented land then ;::,; general jurisdiction of the civil Court is not barred. It was further contended that in fact while disposing of application under section 12 of Ordinance, this issue was an incidental issue. Furthermore, as it was an interlocutory order, therefore, no appeal was provided for under the Ordinance against such order. No appeal was thus filed against order dated 28-2-1988.
7. Before proceeding further it may be pointed out that the case of the respondent is that the disputed plot, being an open plot was lying vacant. One Sahib Jan predecessor-in-interest of appellants Nos. l to 6 requested landlord/owner to allow him for parking of his two trucks on a portion of the said plot. He was so allowed for a consideration of Rs.160 per month. But after sometime said Sahib Jan started running coal business in partnership with appellant No.7 without the consent of the landlord/owner and also illegally occupied the remaining portion of the plot.
Said partner also started parking trucks of others for rent etc. In the said plot. This was the cause of action. The owner firstly approached the criminal Court by filing a complaint under section 447/427, P.P.C. For criminal trespass but he was advised to approach the civil Court. In the meanwhile the appellants moved an application under section 12 of the Ordinance for directions to the landlord to repair the wall, which fell down because of heavy rains. The respondent denied that the appellants were his tenants, under the Ordinance. He also raised objection that the plot was open plot and leased out on month to month basis for parking of two trucks of Sahib Jan and for no other purpose. On this, an issue was framed by the Controller "whether Controller has jurisdiction or not" It is interesting to note that while proceedings before the Controller were going on, the respondent filed a suit before the Civil Judge, Quetta after issuing a notice under section 106 of the Transfer of Property Act to the appellants. Thus, simultaneously same issue was sub judice before the Additional District Judge-II, Quetta (as the civil suit was transferred to it) and the Controller. On the same issue the parties started leading evidence. As earlier stated application under section 12 of the Ordinance is still sub judice but Controller decided the preliminary issue holding that the plot was a rented land. It appears that the said order of the Controller was not produced before the Additional District Judge-II, Quetta. He thus continued proceedings and finally held on 16-6-1988 that the plot was not a rented land as it was leased out for parking of two trucks only and not for any other commercial purpose.
8. The basis of the claim of appellants was the lease deed Ex.D/3 allegedly executed regarding tenancy of the said plot. This was not believed by Additional District Judge-II on the ground that it was not signed by the respondent/ plaintiff. On perusal it was found that factually it is not signed by the plaintiff, thus it was held inadmissible in evidence. The other documentary evidence produced by appellants were Exs.D/4 to D/24 i.e. Rent receipts in respect of the disputed P lot. From perusal of all the receipts it appears that rent was received r1om Sahib Jan for garage. Thus disbelieving the plea of defendants (appellants herein) the impugned judgment and decree were passed.
9. However, the main challenge from the appellants' side on the aforesaid decree is that the Ordinance being a special enactment has overriding effect and consequently the order passed by the Controller under the Ordinance shall hold the field, and further that the civil Court is debarred from setting aside the said order in its general civil jurisdiction. There appears to be no cavil to the aforesaid proposition. But this legal proposition is to be looked into in the peculiar circumstances of a particular case. At the cost of repetition it may be reiterated that the respondent's case was that the open plot was originally leased out to Sahib Jan for limited purpose of parking of his two trucks on portion of an open plot. But said Sahib Jan and thereafter his L.Rs and partner illegally occupied about 10,000 square feet of the plot and started coal business etc. On 21-4-1984 through a notice under section 106 of the Transfer of Property Act the licensee were informed about cancellation of the lease and requested for handing over of the plot in question to the plaintiff. Thus, the case of the respondent was that appellants were only licensees and not tenants in the said plot. The facts lead to show that the plaintiff approached the criminal Court under section 447/427, P.P.C.
Thereafter he filed the present suit for possession. The appellants, however, in order to establish that they are tenants under the Rent Restriction Laws, moved an application under section 12 of the Ordinance as stated earlier. The respondent at once challenged the jurisdiction of the Rent Controller and an issue regarding jurisdiction was framed. The same is hereby reproduced:- "Whether the Court has jurisdiction to entertain the application"?
While deciding this issue it was, however, held by the learned Rent Controller that the property in dispute is a rented land and was used for the purpose of business. But prior to the said order of the Controller, the plaintiff filed the aforesaid suit. After filing of written statement following issues were framed:- (1)Whether this Court has jurisdiction to entertain the present suit?
(2)Whether defendants Nos.l to 7 are tenants of the plaintiff inpremises in question?
(3)Whether the suit is not maintainable in view of preliminary objection B of written statement?
(4)Whether the suit is not properly valued for court-fee and jurisdiction ?
(5)Whether defendants Nos.2 to 7 sublet the premises in question to defendant No.l?
(6)Whether defendant No.l is in illegal possession of property in question ?
(7)Whether the plaintiff is entitled for the relief claimed for ?
(8)Relief.
On the basis of evidence the Additional District Judge-II Quetta held that the appellants were not tenants, therefore, he ordered them to hand over the possession to the respondent.
10. It is pertinent to point out that there is a vital difference between a suit for possession and proceedings for ejectment. A suit for possession is filed before the Civil Court when either the owner is illegally dispossessed or if he has leased out the interest in the property and handed over possession and the licensee has contravened the terms of the lease or if the period of licence has expired etc. But proceedings for ejectment can be filed under the Ordinance against an urban tenant who has got the building or 'rented land' on lease and has either failed to make payment of rent or on any other ground as mentioned in the Ordinance. Admittedly no application for ejectment was filed by the plaintiff for ejectment of the appellant before the Controller. There is also no dispute that the present respondent did not consider himself to be a landlord and the appellants to be his tenants and the land in dispute to be a 'rented land'. Therefore, he firstly moved the criminal Court for action under section 447/427, P.P.C. And subsequently a suit was-filed for possession. It may further be seen, that in order to counter-blast the criminal proceedings, the appellants filed an application under section 12 of the Ordinance. When the plaintiff came to know this, he objected to the jurisdiction of the Controller and filed the present suit. The main application before the Rent Controller was under section 12 of Ordinance. However, after the objection, the Rent Controller framed an issue regarding jurisdiction as reproduced hereinabove. But as pointed out earlier, the respondent filed the civil suit when there was no issue pending before the Controller regarding relationship of landlord and tenant or in respect of the title of the subject-matter in dispute. From the evidence of the respondent it appears that he never treated the appellants as tenants and therefore he resorted to file a suit for possession. He, however, regarded them as licensees. Therefore, in such circumstances filing of civil suit by the plaintiff against present appellants was neither barred by any law nor unjustified on any legal consideration.
11. In order to prove that late Sahib Jan was a mere licensee, the plaintiff produced witnesses and documents from record of rights, Jamabandi etc. In rebuttal the present appellants produce Ex.D/3 but admittedly the plaintiff did not sign the same. They thereafter produce Ex.D/4 to Ex.D/24 which all clearly show that a portion of the plot was leased out for being used as garage. None of the receipts produced would indicate that the plot was let out for any purpose other than being used as garage. As such evidence produced by the plaintiff was believed by the Additional District Judge-II, Quetta, and in my humble opinion rightly so.
12. It may be observed that the difference between a lease and a licence may be drawn minutely and carefully because the line of demarcation between the two is very thin. A distinction between a licence and tenancy has been aptly drawn by the Hobble Supreme Court in case of Abdullah Bhai and others v. Ahmad Din as reported in PLD 1964 SC 106. The relevant observations are hereby reproduced:- "The line of demarcation between a lease and a licence will sometimes be very thin though there is no doubt as to the principle applicable. A lease as will appear from section 105 of the Transfer of Property Act is a transfer of an interest in immovable property. Ownership of physical propety consists of a number of rights and the owner of such property when he creates a lease, transfers to the lessee a right of enjoyment of the property, for a period, for consideration. During the continuance of the lease the right of enjoyment of the property belongs to the tenant and not the landlord. The right of ownership as well as the rights of which it is composed is rights in rem and not in personam and by the lease a right in rem is transferred to the lessee. On the other hand a 'licence' as will appear from its definition in section 52 of the Easements Act is merely a competence to do something which except for this permission would be unlawful. It does not confer any rights in physical property. There is in the case of a licence only a personal agreement between the licensor and the licensee whereby the licensor agrees not to interfere with the doing of particular acts on property which is in his possession. No right in rem passes to the licensee."
13. Keeping in view the material on record if it is held that the appellants were mere licensees and not tenants then objection regarding jurisdiction of the civil Court cannot be called in question. The plaintiff proved that he has not let out the open plot for any purpose other than parking of only two trucks in garage on a portion of plot. The Additional District Judge-II, therefore, after taking into account the entire evidence concluded that the purpose for which the plot was let out was merely parking two trucks. For parking the aforesaid two trucks the plaintiff used to the consideration of Rs.160 (Rs.80 + Rs.80) from Sahib Jan deceased. The present appellants did not produce a singal document to establish that they paid rent of the said plot for any other purpose than using it as garage. It was under these circumstances that the learned lower Court reached the conclusion that the appellants were not tenants.
14. An identical case, on law, though with different facts, came before a Bench of Peshawar High Court in an appeal filed by Haji Niaz Muhammad v. Municipal Committee Peshawar and others as reported in PLD 1971 Pesh.
116. In the aforesaid case the appellant used to pay Tehbazari tax to Municipality. The tenant took the plea that as the plot was leased out by the Municipality to him for the purposes of running business, therefore, the Controller under the Ordinance had the jurisdiction. But it was held that the tenant was a mere licensee and the order of the Civil Court was upheld. Another case as reported in 1980 CLC 1969. Was relied upon by the counsel for the respondent. In the aforesaid case also it was held that appellant was neither a tenant nor a sub- tenant but a licensee, therefore, provisions of Ordinance VI of 1959 had no application, for his eviction. It was further held that it was the Civil Court alone which had the jurisdiction to entertain such suit.
15. Applying the ratio of the aforesaid judgments to facts of this case, it may be observed that the appellants absolutely failed to produce any documentary or other evidence to show that they started coal business on the aforesaid plot with the consent of the respondent, or that the plot was leased out by respondent to appellants for running coal business. Appellants subsequently, in contravention of terms of lease, started such a business and that too, without the consent of respondent.
16. In the circumstances there was no other material which could C be taken into consideration by the Additional District Judge-II, Quetta except that an application under section 12 of the Ordinance was pending before the Controller between the same parties. The question, therefore, would arise whether mere pendency of an application under section 12 before the Controller tantamounts as a bar on filing of civil suit or ousting the jurisdiction of the civil Court? After considering the arguments advanced by the counsel for the parties, I am of the opinion that the same cannot be a bar to the jurisdiction of the Civil Court particularly when the Civil Court framed an issue whether the appellants were tenants of the respondent or not. The learned trial Court expressly held that the appellants were mere licensees and not tenants of the respondent.
17. In such circumstances jurisdiction of the Civil Court cannot be questioned and the decree passed cannot be held as void for want of jurisdiction.
18. The nature of the occupier of a premises shall be determined from the commencement of the lease and not from subsequent steps unilaterally taken by the occupier. Thus in order to determine whether the occupier of a premises is licensees or tenant, the lease deed, if any, is to be seen.
However, if subsequently a licensee contravenes the terms of the lease as in the present case and starts taking actions as against- the terms of lease then such subsequent steps would not determine the nature of his tenancy, particularly so when it is not with consent of the owner. The respondent duly proved that the premises in question was leased out for parking two trucks of Sahib Jan for a consideration of Rs.160 per month. Said Sahib Jan or for that matter his partner Sultan Jan started running coal business on the plot without consent of the owner and on such basis they cannot claim to be declared as tenants. Mr. W.N. Kohli attempted to argue though abortively, that after the order passed on 28-2-1988 by the Controller, the civil Court should have stopped its hands as the said order finally determined that appellants were tenants. Such order according to the learned counsel could not have been ignored by the civil Court as, bar of res judicate would apply in the circumstances. In this context it may be observed that when the suit was filed before the civil Court, no such order was in existence. The Civil Court took cognizance and proceeded with the matter. It does not appear from the record nor from the judgment of the Additional District Judge-II, Quetta that any such order was placed before it. Looking at it from a different facet, the tenant in his statement pleaded that the owner committed fraud with him by not signing the lease agreement Ex.D/3. The question of fraud, therefore, could have been examined and determined by the civil Court alone, and therefore, the civil Court had the jurisdiction regarding this complicated issue. After recording of evidence and giving opportunity to both the parties if finally determined that the appellants failed to prove any fraud committed by the owner and it was further held that the appellants were mere licensees. It is evident from the record that the ownership of the respondent was never denied by the appellants. I have gone through the case of Rehmatullah v. Ali Muhammad and others decided by the Hon'ble Supreme Court and reported in 1983 SCMR 1064. It was held by the Hon'ble Supreme Court inter alia that the requirement of relevant law contained in the Urban Rent Restriction Ordinance is that the Rent Controller cannot .
Decide the question of relationship against the tenant when the landlord has not been able to establish his possession beyond reasonable doubt. In that situation the proper course for the Rent Controller would be to decide the issue against the landlord and advise him to first get his title established before seeking the ejectment. It was also observed at page 1080 that the decision by the Controller and the appellate Court, the High Court and Supreme Court shall not operate as bar to the suit to be filed by the so-called landlord in order to establish his title. However, in the aforesaid case the question of title was involved, but in the instant case there is no dispute regarding title. The only dispute was that the owner /respondent sought possession of his property as according to him the appellants contravened the terms of lease and were liable to hand over the possession to the respondent. Keeping in view all such circumstances I am inclined to hold that all such questions could well be adjudicated and determined by the civil Court. The judgment and decree, therefore, in attend in circumstances of the present case cannot be held as void for want 01 jurisdiction.
19. Mr. W.N. Kohli then submitted that notice under section 106 of the Transfer of Property Act was not received by appellants. Suffice to observe that in para. 2 of the written statement it was categorically admitted that notice was received which was duly replied. This ground, therefore, has no force.
20. It was also contended that proper court-fee was not affixed on the plaint. Reference to section 7, clause (v) was made and it was contended that following substitution was made by Government of Baluchistan vide Ordinance No.IX of 1981 with the following effect:- "In suits for possession of a land, house or garden according to the value of the subject-matter, and the market value of the land, house .Or garden shall be deemed to be such value;"
The counsel for the respondent on the other hand argued that this case falls within the purview of section 7(xi)(cc) which is for the recovery of immovable property from a tenant including a tenant holding over after determination of tenancy; and the court-fee is to be paid according to the amount of rent of the immovable property to which the suit refers, payable for the year next before the date of presenting the plaint. This aspect was also considered-'by the learned Additional District Judge-II, Quetta while deciding issue No.4. It was concluded that dispute between the parties was for termination of the lease and in consequence thereof for possession of plot, F therefore, the court-fee is not to be paid on the valuation of the plot. The same is to be calculated on the annual rent. This ground, therefore, being untenable cannot be sustained.
The upshot of the aforesaid discussion is that I find no force in this appeal which is hereby dismissed with no orders as to costs.