JUDGMENTTASSADUQ HUSSAIN JILANI, J.- Through this Regular Second Appeal, the appellant has challenged the judgment and decree dated 31.10.1994 passed by Civil Judge, Islamabad whereby he decreed the suit filed by respondent-plaintiff for possession and recovery of rent as also the appellate judgment and decree dated 28.1.1996 passed by Addl: District Judge, Islamabad whereby the afore-referred judgment and decree was affirmed and appellant's appeal was dismissed.
2. Facts in brief are.That respondent-plaintiff being the owner of house No. 3-B, St. I6, Sector F-8/3, Islamabad leased out the said house to the appellant- defendant vide agreement dated 6.1.1992 for a period of two years with effect from 10.1.1992 at a monthly rent of Rs. 11,000/- and received advanced payment for one year. On 16.11.1992, respondent-plaintiff gave notice to the appellant- defendant for vacation of the house and intimating cancellation of the lease agreement as it was averred that since the sale agreement was un-registered, the same was enforciblei only for eleven months. As the appellant-defendant refused to vacate the house, suit for possession through ejectment was filed and compensation was also claimed.
3. The appellant-defendant contested the suit by filing written reply contending therein that the lease agreement could, not be cancelled before the stipulated period o*f two years; that he was estopped to file the suit and that the suit was pre-mature. In terms of the conflicting pleas of the parties following issues were framed:-
(1) Whether the plaintiff has got no cause of action to bring the suit? OPD.
(2) Whether the suit is pre-mature? OPD.
(3) Whether the plaintiff is estopped by his own words and conduct to bring the suit? OPD.
(4) Whether the suit is mala-fide and vexatious, as the defendant is entitled to special costs under section 35-A of CPC? OPD.
(5X Whether the suit property has been leased out by the plaintiff for a period of two years, i.e. Till 9.1.1994? OPD.
(6) Whether the plaintiff cancelled the lease vide notice dated 16.11.1992 and the defendant is in illegal occupation of the same since then? OPP.
(7) Whether the plaintiff is entitled to recover the possession of the suit property through allotment and also the compensation at the rate of Rs. 22.000A per month from 10.1.1993 till the vacation of the suit property for illegal use and occupation of the same? OPP.
(8) Relief.
4. The learned trial Court decreed the suit and held that the respondent- plaintiff was entitled to one year rent at the rate of Rs. 11,000/- per month from 10.1.1993 after deducting Rs. 87,000/- and that he was also entitled to compensation with effect from 10.1.1994 till the. Vacation of the house and it shall be double the mount of rent. The appeal filed against the said judgment and decree was dismissed on the ground that admittedly, the lease was for a period of two years commencing from 10.1.1992 (at a monthly rent of Rs. 11,000/-); received one year advance, the agreement was not got registered as required under section 17 clause (d) of the Registration Act, non Registration of a document would not "operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent", and therefore, the said agreement would be void and under section .106 of the Transfer of Property Act, it could only be a lease from month to month terminable either on the part of the lessor or lessee by 15 days notice. It was further held that the respondent- plaintiff had received the rent of Rs. 87,000/- of the second year of lease under protest and this would not constitute estopped against him to cancel the lease at any time before the expiry of one year by giving 15 days notice. However, the receipt of the amount by implication allowed the appellant-defendant to continue tenancy for two years which too expired on 10.1.1994 and respondent-plaintiff was entitled to possession from the said date and it was further held that since the appellant- defendant- continued to retain the possession of the disputed house after the expiry of the lease period, the said occupation was willful and contumacious for which he was liable to pay by suffering a double rent from 10.1.1994 till the house is vacated.
5. Leamed counsel for 'the appellant has challenged the two concurrent findings of the learned lower Courts on the ground that since it was not a registered lease deed, the landlord could not claim any rent and that the appellant is prepared to vacates the house within two month's if a direction to deposit the double amount with effect from 10.1.1994 is set-aside. Learned counsel for the respondent-plaintiff on the other hand, has defended the impugned judgments and decrees y submitting that as the lease deed was not a registered document,.The lease was terminable by 15 days .Notice; that possession of the appellant-defendant being contumacious after 10,1.1994, the learned Courts have rightly burdoned the appellant-defendant with double the rent with effect from the fore-referred date.
6. I have heard leamed counsel for the parties and have given anxious thoughts to the arguments addressed at the bar.
7. The findings of the learned two Courts below on the effect of non registration of a lease agreement is a correct interpretation of the relevant statutory provisions and the law declared. In Habib Bank Ltd. v. Dr. Munawar Ali Siddiqui (1991 SCM R 1185) at page 1190, it was held as under:- "In' this behalf, it may be pertinent to refer to section 107 of the Transfer of Property Act, 1882, and sections 17(d) and 49 of the Registration Act. Above section 107 of the former Act inter-alia provides that a lease of immovable property from year to year or for any term exceeding one year or reserving a yearly rent can only be made by a registered instrument, where as section 17(d) of the later Act requires compulsory Registration of a lease of the nature covered by section 107 of the former Act. Section 49 of the latter Act provides for effect of non-registration of documents required to be registered as follows:-"No doubt required to be registered under this Act or under any earlier law providing for or relating to registration of documents shall:-
(a) operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, to or in immovable property-, or
(b) confer any power to adopt, unless it has been registered."
8. So far as the question of mesne profit and the award of double rent with effect from 10.1.1994 is concerned it is to be noted that it was appellant- defendant's own case that the lease was for a period of two years wh'ich expired on 10.1.1994. That being so, the possession of .Appellant- defendant thereafter was contumacious and he could be described as a trespassor. In such circumstances, the Courts have awarded damages and the continuation of possession thereafter by( the appellant-defendant was unjust and the leamed Courts below have rightly awarded double the rent for the said period. In Dawood Hercules Chemicals Limited v. Water and Power Development Authority (1991 CLC No te 269) at page 208, a Division Bench of this Court held as under:- -:"S. 2(12)-Quantum of mesne profits-Where tenant was holding over premises wilfully and contumaciously after lawful determination of his tenancy mesne profits, could be claimed and recovered from him at about the rate of Rent- to which double the normal rent was taken as a suitable measure of damages in case where possession of tenant over premises was wilful and contumacious, though was based on English Law, but having been consistently followed in Pakistan could not be deviated from".
9. For what has been discussed above, the two concurrent findings of the learned Courts below are neither against the weight of evidence nor. Illegal to warrant interference. There is no merit in this appeal which is dismissed.