SHAFIUR RAHMAN, J.--Leave to appeal was granted to the tenants to examine whether the High Court of Balochistan has by its judgment dated 14-1-1988 correctly interpreted the lease agreement dated 8-10-1936 and 11-12-1939 to hold that the property leased out fell within the definition of rented land under the Rent Restriction Ordinance.
2. Noor Din the predecessor-in-interest of the appellants executed a rent deed on 8-10-1936 and another on 11-12-1939 in respect of the same property and both these documents have been reproduced in extenso in the judgment of the High Court. By the document dated 8-10-1936, the portion of the vacant site measuring 50 ft. x 40 ft. Was acquired by Noor Din from Abdul Wahid, the predecessor-in-interest of the respondents on monthly rent of four annas per hundred sq.Ft. The agreement being for a period of one year from 10-10-1936, the tenant was permitted to construct houses and to let them out or to reside therein. It was left to the tenant to continue on these terms even after the expiry of the period of tenancy. Noor Din again executed another agreement on 11- 12-1939 in respect of the same property for a period of one year beginning from 1-1-1940 at the rate of Rs,6 per month. This deed in express terms prohibited the tenant from leasing out any portion of the site to a sub-tenant or to mortgage or sell the Malba etc. On the site. In this background of relationship on the 15th of March, 1978, a lawyer authorised by Abdul Wahid Khan, served a notice on the widow of Noor Din and he made a grievance therein of the fact that the site had been let out at Rs,10 per month, that the rent had not been paid from August, 1967 to February, 1978 and that the property had been sublet without the consent of Abdul Wahid Khan. In reply to this notice a lawyer authorised by Mst. Moora, widow of Noor Din replied that a consideration had been paid for the property for its use as a residential building and the same had been in continuous occupation and uninterruptedly for thirty years and it was as owner adverse to the world. Abdul Wahid Khan, thereafter filed an application in May, 1978, seeking eviction on the grounds stated hereunder:-- "(2) That originally the rented land in question was principally let out for the purpose of running a fuel stall (Tall) but subsequently the Respondent No,1 without the consent and permission of the Applicant sublet a part of the rented land in question to Respondent No,2.
(3) That the Respondent No,1 has failed to pay or tender the rent of the rented land in question from August 1967 to April, 1978 in spite of repeated demands.
(4) That the Respondent No,1 has further sublet the property in question to the Respondents No,2 to 5 without the consent and permission of the applicant.
(5) That even otherwise the Respondent No,1 by raising superstructure on the rented land in question and using the rented land in question for purpose other than for which it was let out."
' In resisting the application, the appellants took up the following plea:- "In fact the husband of this respondent having come in occupation of the plot in question had paid full consideration of the same to the applicant more than 20 years back. Thereafter he had been dealing with the same in the capacity as owner. The husband of this respondent had thereafter constructed superstructure over the said land and converted the plot into a residential building, about 20 years back. Since the applicant had no concern or connection left with the plot, therefore, he never objected to the raising of super-structure by the husband of this respondent over the plot in question in view of the fact that the premises having been constructed by the husband of this respondent, necessary entries indicating his proprietary status over the same were duly entered in the relevant record of Municipal and Excise and Taxation Department."
3. The matter was tried on the issue whether the property which was the subject-matter of lease and litigation fell within the definition of 'rented land' or not. By an order dated 15-12-1983, copy of which is not on record but it finds mention in the judgment of the High Court, the Controller held that the property was not 'rented land' and he had no jurisdiction over it and dismissed the case.
The appeal was preferred to the High Court and the High Court remanded the case to the Controller on 30-12-1985 for rewriting the judgment. The Controller again on 27-12-1986 ordered the eviction of the appellants on account of their denial of the tenancy and the forfeiture on account of it. The matter again came to the High Court and by judgment dated 3rd of May, 1987 the High Court again remanded the same by framing an additional issue as hereunder:- "In view of objection raised by respondent Nos.1 and 2 in para No,2 of the written statement whether the application is maintainable under section 13 of the Rent Restriction Ordinance VI of 1959, if so, to what effect?
' The objection which was taken in Paragraph 2 of the Written Statement, was as hereunder:- "That the contents of para. No, 2 have been totally wrong and incorrect. The assertions that the plot was let out for fuel stall have been concocted apparently only to create basis for maintainability of the present application which otherwise is absolutely not competent under the provisions of Ordinance VI of 1959. It is not out of place to mention here that even in the notice which was sent by the applicant through his counsel this aspect was never mentioned. The improvement in the eviction application has been made with mala fide intentions to form some basis for persuing this misconceived application. The allegations regarding subletting also are totally wrong, baseless and misconceived. Without prejudice to the above since the applicant has no locus standi to file this application, it does not lie with him to make any such allegations."
4. The Rent Controller dismissed the claim on 29-9-1987 holding that the property was not rented land and hence not within the jurisdiction of the Rent Controller. Again an appeal was preferred and the High Court after reproducing it in extenso the two lease deeds, concluded as hereunder:- "While going through the documents and the evidence produced by the appellant in support of its application, it would be crystal clear that land falls within the definition of rented land and hence obviously the learned Rent Controller has the jurisdiction to entertain the application. Admittedly the rent for the disputed period from August, 1967 to April, 1979 has not been paid to the appellant nor such tender has been made to him. Hence the default is wilful.
' This interpretation by the High Court of two lease deeds has been challenged in the manner noted in the leave granting order referred to.
5. The learned counsel for the tenants/appellants has contended before us on the basis of these two lease deeds that though there was prohibition in the lease deed of 1939 of letting out any portion of the plot, there was no such restriction with regard to the superstructure and the only restriction with regard to the superstructure contained in the lease deed was that it will not be sold or mortgaged. Letting out of the superstructure was not prohibited.
6. The landlords case before the Controller had been that he had given the site for establishing a 'Tall' or a storing fuelwood and selling it and this would have, if proved fully, established the character of the land as 'rented land'. However, this part of the case of the landlord was not believed because it did not find mention in any of the lease deeds, and the oral evidence on this matter was very unsatisfactory and inconsistent. So, the case ultimately came to rest on the two lease deeds which were examined by the High Court.
7. The Rent Controllers jurisdiction under the Rent Restriction Ordinance extends to 'buildings' and 'rented land'. 'Building' has been defined to exclude vacant site and has been classified under the Rent Restriction Ordinance into residential buildings and non-residential buildings, and scheduled buildings and non-scheduled buildings. 'Rented land' has a definition of its own in clause (f) of section 2 of the Rent Restriction Ordinance as hereunder:- " 'Rented land' means any land let separately for the purpose of being used principally for business or trade."
8. Going through the lease deed of 1936, one could possibly argue that the land had been leased out for the purpose of business also because it permitted subletting of the houses which were to be constructed by the lessee. However, no such conclusion can be drawn by reference to the subsequent lease deed of 1939 which supersedes the earlier one. Not only it does not contain any reference to the nature of the use of the land, it prohibits letting out of it. Besides, it is no bodies case that the lessee started, or used the land, for any business as such. The only use to which he put the land, was of constructing houses and letting them out, the latter part being prohibited in the 1939 lease deed. There is nothing on the record to show that there was any subsequent agreement or arrangement whereby the lessee was permitted to'so utilize the land as to make it rented land. A fair and proper interpretation, therefore, of the lease deed of 1939 is that the land was not leased out or rented out principally for trade or business and did not fall within the definition of rented land.
9. In the circumstances the Controller could exercise no jurisdiction over the matter. The appeal is allowed. The judgment of the High Court is set aside and that of the Rent Controller restored. The respondents, however, will not be precluded from seeking their remedy in appropriate forum in accordance with law. No order is made as to costs.