' Both these appeals are disposed of by this single judgment, as the appeals are against the same order of learned 1st Senior Civil Judge and Rent Controller, Karachi South, dated 14-3-1989 allowing the ejectment application.
2. Brief facts leading to the filing of these appeals are, that respondent No, 1 who is trustee and caretaker of a private trust named Ibrahimji Sulemanjee Mithaiwala Trust filed ejectment application against Hussain Khan appellant in F.R.A. No, 438/1990 and Saifuddin appellant in F.R.A.
No,476/1990 on the grounds that appellant Saifuddin without written consent of the respondent had raised partition wall and sublet a portion of shop to appellant Hussain Khan for running furniture shop. It was further alleged that Saifuddin has impaired materially the value and utility of tenement on this count.
3. Appellant Saifuddin filed written statement admitting the respondent as his landlord; and also admitting sub-letting the premises to appellant Hussain Khan; but contended that this sub-letting was with the permission of the respondent.
4. Appellant Hussain Khan admitted in his written statement of running of furniture shop on the plot in-question since May, 1981, but according to him it was rented out to him by appellant Saifuddin on rent of Rs,200 per month, which was subsequently raised to Rs,250. After three years, on 18-7- 1984 he received a letter from respondent Saleh Bhai that he had come to know that Hussain Khan is paying compensation of Rs,200 per month to Saifuddin who is his tenant since long. In another letter he further asked to clarify the matter in writing to enable him to effect necessary changes in the tenancy. Again on 13-10-1984 his son Sirajuddin received a letter/notice from Muhammadi and Co., Advocates. It was stated therein that appellant Hussain Khan is in illegal and unauthorised possession of the premises through Saifuddin without permission of the trustees. He was asked to explain the position, and on receipt of clarification the situation would be rectified in the interest of the Trust. On receipt of this notice Mr. Abdul Rashid, Advocate sent a reply to M/s. Muhammadi and Co., Advocates on 24-10-1984 asking them to clarify as to whom they are representing, and also volunteered to pay rent to the respondent if the documents are shown. Respondents in turn wrote a letter dated 6-3-1985 directing appellant Hussain Khan to stop making payment to appellant Saifuddin, and deposit the same with the respondent. He did not show any title document to appellant Hussain Khan. Hussain Khan started depositing rent since December, 1985 in Court in Miscellaneous Rent Application No,257/1986 in the name of both Saifuddin and respondent with a prayer to the Court, to allow the rent to be withdrawn by the person who was the actual owner of the premises.
5. Affidavit in evidence of respondent Saleh Bhai Tayebji was filed. He produced true copy of record of rights showing the premises a private waqf with Saleh Bhai Muhammad Ali as its caretaker, and also an application under Order XXIII, Rule 3, C.P.C. In Rent Case No, 1209/1975 showing respondent/applicant and Hussain Bhai as one defendant and order thereon. Letter of his Advocate Muhammadi & Co., to Sirajuddin son of Hussain Bhai, reply of the letter of Hussain Khan; he was cross-examined.
6. Respondent Saifuddin filed written statement and was also cross-examined.
7. Appellant Hussain Khan filed his affidavit in evidence, produced letter of the Advocate of the respondent addressed to his son and also letter of the respondent to the Advocate of appellant Hussain Khan. He also filed affidavit in evidence of his son Siraj Ahmed. Both of them were cross- examined.
8. The ejectment application was allowed and appeal against this ejectment application was filed by both the appellants as F.R.A. No, 725/1986 and 958/1986 before this Court. These two appeals were heard by my learned brother Abdul Razzak Thaheeni, J.--as he then was, and with the consent of the parties the ejectment order was set aside, and matter was remanded back to the Rent Controller for production of documents and further arguments on the maintainability of the case.
9. After the remand further affidavit-in-evidence of respondent Saleh Bhai was filed. He produced copy of record of rights, extract of copy of P.T.I, Register, copy of judgment and decree in Suit No, 218/1973, challan of property tax dated 30-4-1977, demand note of Deputy Director, K.M.C., Letter of the Deputy Director, Taxes dated 9-1-1980 and 21-8-1980, compromise application in Rent Case No, 5543/1981 and some other documents.
10. Additional evidence of appellant Hussain Khan, respondent Saifuddin was also recorded.
11. The learned Rent Controller framed following points for determination:--
(1) Whether ejectment application in question is maintainable in law?
(2) Whether opponent No, 1 is tenant of the applicant/trustee?
(3) Whether the opponent No, 1 sub-let the rented premises to opponent No, 2 with the verbal consent of the applicant?
(4) Whether opponent No, 1 impaired the material value or utility?
(5) Whether the opponents Nos. 1 and 2 are liable to the ejectment?
(6) What should the decree be?
12. Findings of the learned Rent Controller on issues 1, 2, 3 and 5 are in affirmative while Issue No, 4 is in negative, and appellant was directed to vacate and hand over possession of rented premises to applicant within 90 days.
13. Learned Advocate Mr. Muhammad Arif appearing for appellant Hussain Khan has argued that appellant is running furniture shop since 1981. He is paying rent regularly to appellant Saifuddin since then. Apart from rent he is paying Rs,2,000 towards Pugri of the rented premises as it was settled at Rs,1,00,000, and by that time he had paid about Rs,84,000 as Pugri. He further contended that for three years the respondent had not contacted him for payment of rent or claimed himself to be a landlord, in 1984 he was asked to do through his Advocate asked for title document to ascertain whether the respondent is actual owner of the premises. Respondent failed to do so. To remain on the safe side, he started depositing rent in Court. He further contended that by his such action the respondent has impliedly consented to his tenancy. By his letter dated 18-7-1984 he only wanted to effect necessary changes in the tenancy and had not asked for vacating the premises in question. He further contended that respondent Saleh Bhai and appellant Saifuddin are cousins.
Even according to the admission of the respondent this is a family Trust. Respondent has not shown the title documents to the appellant Hussain Khan on demand though he was ready to pay the rent after seeing those title documents. Probably due to the fact respondent had no clear title document over the disputed premises in the record of rights. Even record of rights produced by the respondents in evidence shows Saleh Bhai Muhammad Ali as caretaker of the Trust and not the respondent.
14. Realising this weakness respondent's Advocate in earlier appeals before this Court (F.RAs. Nos.
725/86 and 958/86) requested the Court for remand of the case for producing further documents, and accordingly case was remanded back. He further contended that title of respondent over the rented premises is not clear though this position is admitted by appellant Saifuddin in his written statement. He further contended that it is admitted that respondent is a landlord, but he kept silent for three years; and again refused to show title documents on demand. By his such act appellant Hussain Khan believed that Saifuddin is landlord. By his conduct respondent has himself allowed Saifuddin to receive the rent and Pugri. The Pugri amount is nearly paid. He alleged that in collusion with appellant, respondent has filed the case.
14-A. Learned Advocate for the respondent has argued that relationship of landlord and tenant is admitted by appellant Saifuddin. Appellant Hussain Khan has admitted in his cross-examination that he knew respondent is caretaker. He has not permitted the sub-letting of premises to appellant Hussain Khan by appellant Saifuddin. He further contended that it has been admitted by both the appellants that premises has been sub-let, as such, appeals should be dismissed and order of the Rent Controller be maintained.
15. Heard the arguments of the learned counsel. As far F.RA. No,438/1990 is concerned the admitted position is that appellant is running the furniture shop in premises question since 1981. It was only in 1984 the respondent gave him notice asking him to clarify this matter, so as to effect necessary changes in tenancy. For more than three years he remained silent. He did not raise any objection over the possession of the appellant. Even notice from respondent's Advocate to the son of the appellant is for clarification of the possession and not for vacating the premises. To these letters the appellant's Advocate showed his willingness to pay the rent to respondent provided title papers are shown. Respondent did not respond to this reasonable request of the appellant, probably because he had no clear title to the premises. Record of rights produced in the Court do not indicate that respondent is caretaker and trustee of the Trust. As record shows that Saleh Bhoy Muhammad Ali is caretaker.
' It is a family trust. Respondent Saleh Bhoy and Saifuddin are cousin inter se.
' The Pugri of Rs,1,00,000 is alleged to have been settled between appellant Hussain Khan and Saifuddin. According to the appellant he was paying the Pugri at the rate of Rs,2,000 per month.
This fact is confirmed even by the first letter of respondent to the appellant Hussain Khan who had clearly mentioned that it had come to his knowledge that appellant was paying compensation of Rs,2,000 per month to Saifuddin.
' Their collusion for ejectment of appellant Hussain Khan cannot be ruled out as most of the Pugri amount had been received by Saifuddin.
The conduct of the respondent for keeping silence for three years, avoiding to show the title documents to 'appellant, is a contributory factor in the belief of appellant that Saifuddin was actual landlord. In other words it amounts to acquiesence of the right.
' As held in Ghulam Bahauddin Qureshi v. Mrs. Hawa Bai reported in PLD 1979 Karachi 597:-- "Recognition of sub-lease by conduct also obviates requirement of writing. Relationship of landlord and tenant held exists between parties in circumstances."
' Such views also taken on Boman Abadan Irani v. Khan Saheb Jahangir J. Mobed and another (PLD 1960 West Pakistan Karachi 276).
' It has been held in Haji Dawood v. Mst. Rahima Bai and another PLD 1980 Karachi 126:-- "Sub tenancy acquiesced by landlord--Right to object--No longer available--Party acquiescing in breach of right waiving his right--Debarred from placing pleading for or enforcing his right."
Respondent by his conduct for keeping silence for three years and refusing to show title document to the appellant on his demand has acquiesced his right of objection over subletting of the premises; at this stage he cannot exercise his right of demanding ejectment on the ground of subletting. By his conduct he is also responsible for belief of the appellant that he has been rented out premises by actual owner. In view of the above rulings the relationship of landlord and tenant did exist between the parties.
' In view of the above circumstances the impugned order of the Rent Controller in respect of appellant Hussain Khan is set aside. F.R.A. No,438/1990 is allowed with no order as to costs.
' As far F.R.A. No, 476/1990 is concerned the admitted facts are that appellant is paying rent of Rs,50 per month whereas Hussain Khan is paying Rs,250 per month, to Saifuddin. Hussain Khan also states that he is paying Pugri @ Rs,2,000 per month, up to the tiling of the ejectment application. He had by that time paid Rs,82,000 towards Pugri amount. Subletting is admitted by the appellant.
Respondent denied to have permitted subletting. It is also clear from the fact that he was charging much more than what he was paying as rent. No man will permit the tenant to charge more from sublet tenant, than what he pays the landlord. Subletting is either without permission of the respondent admitted in order to make a ground for eviction of Hussain Khan. In both the cases the appellant is liable to be ejected.
' In view of this fact the order of the Rent Controller is maintained so far Saifuddin is concerned, and his rent appeal is dismissed with no order as to cost. The appellant, Saifuddin is directed to vacate the premises within 60 days of this order.