1. ' ZAFFAR HUSSAIN MIRZA, J.--This is landlord's appeal against the judgment of the Sind High Court dated 26th June, 1988, whereby the order of the learned Rent Controller directing the ejectment of the tenant under Section 14 of the Sind Rented Premises Ordinance, 1979, was set aside and his application was rejected.
2. ' The landlord sought the eviction of the tenant on the ground that he was attaining 60 years of age within the next six months of the institution of the application; that he was likely to retire from F.A.O.
3. Job in Rome where he was residing with his family and needed the accommodation for his personal occupation. The disputed premises consisted of the ground floor of a bungalow in P.E.C.H.S., Karachi. So far as first floor of the said bungalow is concerned, the landlord explained the said accommodation in para.6 of his petition for eviction which is as under:-- "that the first floor of the bungalow from the very beginning is occupied by the family of a married sister of the Applicant, and another handicapped brother and unmarried sister of the Applicant are also living with them. Thus there is little space left to accommodate the family of applicant comfortably even during their temporary visits, much less after moving permanently to Karachi with all their furniture and household effects from Rome."
4. ' The tenant controverted the averments of the landlord and asserted that the landlord does not need the premises for personal use, as he has in his possession the entire first floor of the house which is big and spacious enough to satisfy his needs. The learned Rent Controller found that the landlord had attained the age of 60 years and had no other house in his occupation, therefore, he was entitled to possession of the premises under section 14 of the Sind Rented Premises Ordinance.
5. Accordingly he passed the eviction order vide his order, dated 27th January, 1988.
6. ' Being aggrieved by the order, the tenant appealed. Before the High Court the main thrust of the argument assailing the eviction order by the tenant was on the question, whether in the circumstances of this case, the first floor of the building was in the occupation of the landlord and if so, was he not disqualified to obtain possession of the disputed premises on the ground floor, by virtue of the embargo contained in subsection (2) of section 14 of the Sind Rented Premises Ordinance, 1979, (hereinafter referred to as 'the Ordinance').
7. ' Learned Judge in the High Court, who decided the appeal, took the view that as according to section 2(g) of the Ordinance, the expression "personal use" means the use of the premises by the owner thereof or his wife (or husband), son or daughter, section 15 which uses the same expression would necessarily exclude the requirement of the premises for the use of brother and sisters.
8. Learned Judge further held that, if the landlord had permitted the use of the upper floor by his brother and sisters-gratis they would be deemed to hold the occupation thereof on his behalf, so that he cannot he heard to say that he is not in the occupation of that portion of the building within the meaning of subsection (2) of section 14.
9. ' Leave was granted to consider the contention that since the provisions of section 14 open with a non abstante clause and the said provisions, independently of the requirement of a landlord fixed the entitlement of specified class of landlords, the respondent was entitled to demand the premises in dispute for his personal use, and he was not under an obligation to throw out his sisters and brother from the first floor or to share the accommodation with them, and not seek independent accommodation.
10. ' We have heard Mr. Akhtar Mahmood learned counsel for the appellant, but no one has appeared for the respondent. There seems to he no serious controversy on the question whether the upper floor of the house in question was in actual occupation of crippled brother of the landlord and his two sisters, with the family of one of his sisters. We have, therefore, considered the question purely at the legal plane, whether the actual occupation on the part of the landlord's relations, without payment of rent or other remuneration, as no such case was set up by the landlord, would constitute his occupation of the said accommodation. It has been contended by the learned counsel for the appellant that the landlord is not in physical occupation of the first floor and at any rate the landlord was not seeking possession of the disputed premises on the ground floor for the use of his brother and sisters, but for himself and his family. According to the learned counsel the word "occupation" as it occurs in subsection (2) of section 14, is of narrower connotation as compared to the word "possession". Occupation, he argued, constitutes actual physical possession. In support reference was made to the definition of the word "occupation" in the dictionaries and some judicial pronouncements in reported cases were also referred to. Counsel maintained that although the landlord was in possession of the upper floor, in the facts of the present case he was not in occupation thereof. The argument of the learned counsel was, therefore, that the disqualification contained in subsection (2) of section 14 was not attracted in the present case and the landlord was entitled to be put in possession of the disputed premises.
11. ' It may at the very outset be stated that the question is not whether the landlord has the right to demand the possession of the premises in dispute, for the use of his brother and sisters, as considered by the High Court, since obviously his pleading did not set up such a case. His case was that the disputed premises were required for his own family, the question, therefore, precisely was, whether in view of the admitted fact that the upper floor is in occupation of his relations, that part of the building can be said to be in his own occupation so as to disentitle him from enforcing the special privilege of summary eviction of his tenant from the ground floor premises for his personal use.
12. ' Subsection (1) of section 14 of the Ordinance confers the right upon specified category of landlords, including a landlord who is due to retire within the next six months as in the present case, to obtain possession of the rented premises from his tenant upon service of notice to that effect.
13. Subsection (2) of section 14 incorporates a disqualification from availing privilege conferred by subsection (1) and reads as under: "(2) The landlord shall not be entitled to avail the benefit of subsection (1) if he is in occupation of a building owned by him in any locality."
14. ' The term "occupation" has not been defined in the Ordinance. However, the Ordinance uses the term "possession" in several sections including section 14, subsection (1) of which speaks of the tenant being required to deliver "vacant possession" of the building to the landlord. Similarly the word "possession" has been used in subsection (2) of section 15, in connection with the power of the Controller to make an order directing the tenant to put the landlord in possession of the premises.
15. Also the word "occupation" has been used besides subsection (2) of section 14, in the provisions of section 15. For instance subsection (2)(vii) of section 15 uses the term "occupation" and indeed the two terms "possession" and "occupation" appear in this section in juxtaposition. According to this provision the Controller can make an order directing the tenant to put the landlord in possession of the premises, if he is satisfied that "the landlord requires the premises in good faith for his own occupation or use or for the occupation of his spouse or any of his children". The perusal of the provision referred to clearly indicates that the law-maker uses the two terms "possession" and "occupation" to carry two different meanings and not interchangeably. Indeed the two words are used in contrast, rather than to refer to the same state of affairs.
16. ' Now in order to understand the meaning of the term "occupation" in law, it is first necessary generally to know what the word "possession" connotes. The concept of "possession" has originally emanated from the idea of ownership, although historically possession in fact preceded the notion of ownership, which constitutes a legal right. As observed in Salmond on Jurisprudence by P.J.
17. Fitzgerald (Twelfth Edition), the concept of possession is as difficult to define as it is essential to protect. In the Law of Adverse Possession by M. Zafarullah Khan, the following passage of the meaning of possession would be found useful: "Possession originally expresses the simple notion of a physical capacity to deal with a thing as we like to the exclusion of every one else. The primary and main object of ownership is the protection of this physical capacity and as pointed out by Savigny, if this physical condition had alone to be considered all that could be said upon possession from juristical point of view would be contained in the following sentences: `The owner of a thing has the right to possess it. Every one has the same right to whom the owner has given the possession. No one else has that possession'.
18. ' The legal notion of possession however is not confined to this simple physical condition.
19. Possession is treated in law, not only as a physical condition which is protected by ownership but as a right in itself. From possession under certain conditions, important legal consequences are derived; in advanced systems of law the right of possession is frequently separated from the right of ownership Moreover, the possession with which the law thus deals is not that simple physical condition described above, and to which for the sake of distinction, we may give the name of Detention. It is true that the physical element is never altogether lost sight of; on the contrary, a physical element of some kind or other, is essentially necessary to possession in its widest legal sense."
20. ' The learned author has further analysed the concept of possession and observed as follows: "Upon analysis, therefore, the idea of possession resolves itself into two elements; physical and mental--corpus and animus. Possession in any sense of the term must imply, first, some actual power over the object possessed and secondly, some amount of will to avail oneself of that power.
21. The mind must accompany the act, the will must realise or embody itself in an external fact or group of facts."
22. ' The books also distinguish- between possession in fact and possession in law. Another division of the concept of possession is between mediate possession and immediate possession. This has been explained lucidly in Salmond on Jurisprudence (supra) as under: "In law one person may possess a thing for and on account of some one else. In such a case the latter is in possession by the agency of him who so holds the thing on his behalf. The possession thus held by one man through another may be termed mediate, while that which is acquired or retained directly or personally may be distinguished as immediate or direct. If I go myself to purchase a book, I acquire direct possession of it; but if I send my servant to buy it for me, I acquire mediate possession of it through him, until he has brought it to me when my possession becomes immediate.
23. ' Of mediate possession there are three kinds. The first is that which I acquire through an agent or servant; that is to say, through someone who holds solely on my account and claims no interest of his own. In such a case I undoubtedly acquire or retain possession; as, for example, when I allow my servant to use my tools in his work, or when I send him to buy or borrow a chattel for me, or when I deposit goods with a warehouseman who holds them on my account, or when I send my boots to a shoemaker to be repaired. In all such cases, though the immediate possession is in the servant, warehouseman, or artisan, the mediate possession is in me; for the immediate possession is held on my account.
24. ' The second kind of mediate possession is that in which the direct possession is in one who holds both on my account and on his own, but who recognises my superior right to obtain from him the direct possession whenever I choose to demand it. That is to say, it is the case of a borrower or tenant-at-will. I do not lose possession of a thing because I have lent it to someone who acknowledges my title to it and is prepared to return it to me on demand, and who in the meantime holds it and looks after it on my behalf. There is no difference in this respect between entrusting a thing to a servant or agent and entrusting it to a borrower. Through the one, as well as through the other, I retain as regards all other persons a due security for the use and enjoyment of my property. I myself possess whatever is possessed for me on those terms by another.
25. ' There is yet a third form of mediate possession, respecting which more doubt may exist, but which must be recognised by sound theory as true possession. It is the case in which the immediate possession is in a person who claims it for himself until some time has elapsed or some condition has been fulfilled, but who acknowledges the title of another for whom he holds the thing, and to whom he is prepared to deliver it when his own temporary claim has come to an end: as for example when I lend a chattel to another for a fixed time, or deliver it as a pledge to be returned on the payment of a debt. Even in such a case I retain possession of the thing, so far as third persons are concerned."
26. 'As pointed out above it is difficult to define the meaning of the word "possession" precisely and satisfactorily having a universal application in all systems of law. Indeed each system of law has given its own meaning to the concept of possession. Even in the same system of law different policies may be found to be at work, as regards the concept of possession in different areas of law.
27. We are here concerned with the meaning of term in the context of the provisions of Sind Rented Premises Ordinance, 1979, which is a statute substituting the general law remedy of action for eviction by a landlord against his tenant. In the area of the law relating to landlord and tenant, the tenant as well as the landlord are both in possession of the demised premises, but their respective possession falls under different species of possession enunciated herein above. In the passage cited from Salmond on jurisdiction, the possession of the landlord is "mediate possession" and that of the tenant what is described as "immediate possession". In the law with which we are concerned it is the second kind of mediate possession that the landlord holds through the tenant, namely, that the latter is directly in possession and holds on his own account qua his possessory right of enjoyment and on account of the landlord whose superior right he recognises to obtain direct possession from him by resorting to statutory remedy. It is in this sense that the tenant is required under subsection (1) of section 14, "to deliver vacant possession of the building". Here vacant possession would mean actual physical possession. The word "possession" in subsection (2) of section 15 of the Ordinance is also used in the same sense. The word "occupation" has been defined in the Shorter Oxford English Dictionary, inter alia, to mean actual holding or possession, specially of a place or of land. In the context of subsection (2) of section 14 of the Ordinance, the word carries the meaning of actual physical possession of a building. This specie of possession is what has been described by Salmond as immediate or direct possession. I am tempted to quote the illuminating observation made by Lush, J, in the case of The Queen v. The Assessment Committee of St. Pancras (1877) 2 Q.B.D. 581), which reads as follows: "It is not easy to give an accurate and exhaustive definition of the word "occupier". Occupation includes possession as its primary element, but it also includes something more. Legal possession does not of itself constitute an occupation. The owner of a vacant house is in possession, and may maintain trespass against any one who invades it, but as long as he leaves it vacant he is not rateable for it as an occupier. If, however, he furnishes it, and keeps it ready for habitation whenever he pleased to go to it, he is an occupier, though he may not reside in it one day in a year.
28. ' On the other hand, a person who, without having any title, takes actual possession of a house or piece of land, whether by leave of the owner or against his will, is the occupier of it."
29. 'In my opinion the word "occupation" carries the same meaning and import as in the above- quoted observation. Therefore, it will be a question of fact in each particular case whether in the given facts the landlord is in occupation of the other building in question to disentitle him of the benefit extended by subsection (1) of section 14.
30. 'In the light of the law discussed above, the next question to consider is whether in the circumstances of the present case the landlord was in occupation of the first floor tenement. It may be stated that right at the stage of pleading, the case of the landlord was as appears from paragraph 6 of the application for eviction that the said portion of the building was occupied by his sister with her family, an handicapped brother and unmarried sister. This averment was supported on oath in the affidavit filed by the landlord. The respondent in his written statement had set up a plea that the entire first floor was in the possession of the appellant and was lying vacant. This plea was categorically denied in the affidavit of the appellant who also filed affidavits sworn by the occupants of the first floor along with other evidence, consisting of the National Identity Cards of his sisters and brother showing their address with reference to the first floor of the building. In the cross-examination of the landlord nothing material has been brought out to indicate that his aforesaid relations are not in the occupation of the first floor or that he is in any way in the occupation of the same. The respondent's attorney in his evidence has admitted that the brother of the landlord is mentally retarded and is residing in the first floor premises and that the landlord "occupies the first floor of the said house whenever he visits Karachi from Italy". As regards his sisters the respondent stated that they were residing else where. It would, therefore, appear from the evidence that the case of the landlord was partly admitted to the extent that his handicapped and crippled brother was living on the first floor portion of the building. Obviously a crippled person could not be living alone and therefore there was no reason to doubt the assertion of the landlord that his other two sisters were also in occupation of the first floor. Be that as it may, since the tenant was pleading a special plea of disqualification, it was for him to have produced positive evidence to show that the landlord was in occupation of the first floor. In the state of evidence on record there is nothing to indicate that for all these years the landlord had kept the first floor premises ready for his own occupation whenever he returned to Pakistan. All that is indicated is that on short visits whenever he came he stayed with his other family members in the first floor premises. This hardly satisfies the requirement of law with regard to occupation. Evidence could have been brought o establish that the first floor contained the furniture and other necessary lousehold goods belonging to the landlord which could have led to the inferenceat he was keeping it ready for his own habitation whenever he pleased to use it. 6n the contrary it appears fairly certain that the said premises were in occupation of the crippled brother for his use. The occasional act of staying temporarily with his relation in the first floor on temporary visits would not by itself constitute occupation, unless other circumstances were brought on record. Therefore, while it can be said that the upper floor was in legal possession of the landlord, there is no clear evidence that he was in occupation of the same. It may be clarified that a landlord who is really in occupation of another building cannot, by bringing in his relations to stay in such premises, plead that he is not in occupation thereof. It will he for the Court in such circumstances to reject such plea as fraudulent.
31. Once it is established that a person other than the landlord is in occupation of a building, although gratuitously, the tenant cannot insist that the person so occupying should be thrown out and it be held that such building is in occupation of the landlord. Particularly in cases like the present one where a crippled brother and sisters are in occupation of the premises, it cannot be held that since the occupation is gratuitous, they could easily be displaced by the landlord and from that it can be inferred that he is in occupation thereof. The factum of occupation is to be determined on the evidence as it exists at the relevant time and not on the basis of what the landlord can do to obtain occupation from those who are for the time being in occupation of such premises.
32. ' In view of the fact that the landlord's relations were in occupation, we are unable to agree with the view taken by the learned Judge in the High Court that they were holding occupation till his return on his behalf. There is no evidence on the record to support this conclusion.
33. ' In the light of the aforesaid discussion, I would accept the appeal, set aside the judgment and order passed by the High Court. The result is that the order passed by the learned Rent Controller directing eviction of the respondent stands restored. In the circumstances of this case there will he no order as to costs.