1. ' ABDUL KADIR SHEIKH, J.---This appeal by leave against the judgment of a learned Judge of Sindh High Court, dated 2nd October, 1984, arises out of the following facts and circumstances.
2. ' Appellant-trust claims to be the owner of the premises in question which were let out to Mst.
3. Gandi Hajiani on monthly rent. Mst. Ghafooran, first respondent, herein, claimed rights of Mst. Gandi Hajiani in the premises after her death on the basis of 'Will' said to be executed by her and filed ejectment application against Abdul Waheed, predecessor of respondents 2(a) to (h), on the ground that being a tenant, he had failed to pay any rent for the premises. In the proceedings, appellant-trust was joined as party as they claimed that after the death of Mst. Gandi Hajiani, the tenancy in her favour terminated and the tenancy rights reverted to the Trust. It was further pleaded that the 'Will' was neither genuine nor was it valid in law; in any case, Abdul Waheed was a tenant of the appellant-trust which was entitled to receive rent.
4. ' The Rent Controller who heard the case allowed the application of Mst. Ghafooran by the order dated 5th December, 1982 and directed eviction of the respondents 2 (a) to (h). This order led to the filing of two appeals: one, by the tenants; and the other, by the appellant-trust. It was, inter alia, pleaded on behalf of the appellant that the tenancy rights in favour of Mst. Gandi Hajiani could not devolve on Mst. Ghafooran through the alleged 'Will' even if it was genuine and valid. In this regard and also with regard to the facts proved in evidence learned Judge held as follows: "The admitted position is that Mst. Gandi Hajiani was a tenant of the land which belonged to the Trust. Mst. Gandi Hajiani constructed huts and let them out to various persons to which the Trust never objected and knowing it full continued to realise rent for land from Mst. Gandi Hajiani. The contention of the learned counsel for the Trust seems to be that as Mst. Gandi Hajiani was a tenant of the land after her death the entire property reverted back to the Trust which became the owner of the construction as well. The but was constructed on the rented land and till such time it is not removed by the tenant merely by the death of the tenant the structure will not vest in the landlord.
5. The structure will remain on the land which is owned by the tenant or his legal heirs. It may be possible to contend that the will did not confer any valid right on Mst. Ghafooran the respondent No,1 but this may not be the end of the matter. Mst. Ghafooran is the maternal granddaughter of Mst. Gandi Hajiani. No evidence has been produced to show that she did not have any right of inheritance in the property. Therefore on the basis of the relationship of respondent No,1 with Mst.
6. Gandi Hajiani and in the absence of any evidence to disprove her title she became one of the heirs of Mst. Gandi Hajiani and thus inherited the property viz. The hut. In my opinion the definition of the word 'tenant' as given in the Urban Rent Restriction Ordinance, 1959 may not be relevant for the purposes of this case because the dispute between the parties is in respect of the but and not the land. The respondent No,1 may not become a tenant of the land but her rights in the structure are not disputed. It is the definition of the word `landlord' which is more relevant for purposes of date reminding the relationship between the respondent No,1 and the appellant.
7. ' From the evidence produced by the parties it is clear that Abdul Waheed had admitted that he was paying rent to Mst. Gandi Hajiani and after her death he started paying rent to the Trust. This was not permissible as at no stage the huts had been transferred in favour of the Trust."
8. ' On this view of the case, learned Judge dismissed both the appeals by the impugned judgment dated 2nd October, 1984.
9. Leave to appeal was granted by this Court in order to examine the submission made on behalf of the appellant that entire claim of Mst. Ghafooran in the ejectment application as well as in her evidence was based on the alleged 'will' and not on the ownership rights through inheritance and the C A learned Judge in the High Court has erred in granting such declaration in her favour. In this behalf, it was also contended that even on the basis of 'will', even if for the sake of argument it is assumed to be valid in law, the tenancy rights I could not devolve on Mst. Ghafooran and since Mst.
10. Gandi Hajiani died issueless, the tenancy rights reverted to the appellant-Trust.
11. At the hearing of the appeal today, learned Advocate-on-Record for the respondents, however, raised the plea that the appeal has become infructuous for the reason that respondents 2 (a) to
(h) have handed over possession of the demised premises to Mst. Ghafooran respondent-1 with the result that appellant-Trust cannot seek eviction of the first respondent in the proceedings which were initiated by the first respondent herself.
12. ' Syed Zia Abbas, learned counsel for the appellant admits that respondents 2 (a) to (h) have surrendered tenancy rights in favour of the first respondent, and he cannot, therefore, escape from the conclusion that no relief can be granted to the appellant in this appeal which has, indeed, arisen out of the ejectment application filed by the first respondent herself.
13. ' For this reason, that the appeal has been rendered infructuous and thus there can be no order except that one of dismissal of the appeal, and we do so accordingly.
14. ' The parties are however left to bear their own costs.