' RAJA MUHAMMAD KHURSHID, J.---The common questions of law and facts are involved in respect of the same property in the appeals referred to above. All the three appeals are, therefore, being dealt with and decided simultaneously through a common judgment.
2. The brief facts are that House No,5-A Street No,16, Sector F-:6/3, Islamabad was allegedly owned by Kafayet Ullah Khalil who let it out to M/s. Karamah Enterprises through its Chairman/Managing Director Mian Attaullah vide agreement, dated 4-7-1989 which has been brought on record as Exh.D.7. The aforesaid agreement was signed by Kafayet Ullah lessor and the lessee Mian Muhammad Attaullah on the monthly rent of Rs,14,000 for a period of two years. The lease money for the first year was payable in advance and thereafter it was to be paid in the shape of rent from month to month. An increase of 10% was stipulated in the lease agreement after completion of every two years of the lease-deed. The lease money was bifurcated in two parts i,e, Rs,8,000 as rent of the premises and Rs,6,000 as rent of the fixtures and furniture i,e, totalling the lease money to Rs,14,000 per month. The tenancy allegedly commenced on 16-8-1989. The aforesaid Mian Attaullah paid the advance money @ Rs,14,000 per month for the first year. Thereafter, he declined to pay the rent in time and issued cheques which were bounced. Allegedly Kafayet Ullah served a notice on 30-4-1991 upon the lessee aforesaid thereby terminating the lease-deed and asked him to vacate the premises within two months. This allegedly infuriated the tenant/lessee who wrongly raised a fictitious demand of Rs,33,000 which he had claimed to have incurred in constructing the servant quarter and for carrying out other repairs. He gave the bill for the aforesaid amount to the landlord Kafayet Ullah who took it as' bogus and invalid. The dispute over the payment of rent and the counterclaim made by the tenant brought the parties to the Court. The landlord Kafayet Ullah thereupon instituted Civil Suit No,238 of 1995 (28/93) on 26-1-1992. It was a suit for possession and recovery of rent and was decided vide the impugned judgment and decree, dated 24-6-1998 delivered by Mr. Hassan Mabrur, the then learned Senior Civil Judge, Islamabad. The aforesaid judgment is impugned vide R.F.A. No,354 of 1998 Karamah Enterprises through Mian Attaullah v.
Kafayet Ullah and others. In the meantime, a second suit was filed i,e, Civil Suit No,237 of 1995 (333/93) by the appellants/plaintiffs Nos.1 to. 3 against the lessee/tenant Mian Attaullah respondent/defendant on 22-7-1993. In that suit, a prayer was made for possession of the house in question alongwith recovery of rent w,e,f, 22-12-1992 @ Rs,16,000 per month. In addition to that, a prayer for the recovery of mense profit @ Rs,16,000 per month was also made on the basis that the appellants/plaintiffs aforesaid had purchased the property in question for their own use and as such, were in need of its possession. During the pendency of that suit, the property in question was further purchased from the aforesaid appellants/plaintiffs by appellants/ plaintiffs Nos.4 to 6 for which an amended plaint was filed, wherein, all the appellants now before the Court were impleaded as plaintiffs. The same prayer was, however, made in the amended suit as was made by the appellants/plaintiffs Nos.1 to 3. That suit was also resisted by the respondent/defendant which was decided vide the impugned judgment, dated 24-6-1998 delivered by the same learhed trial Court which had decided Suit No, 1 . The learned trial Judge decreed the Suit No,1 filed by Kafayet Ullah against the respondent/defendant to the tune of Rs,76,000 as arrears of rent but held that after the sale of the property in question in favour of Dr. Amjad Yaseen and others. The prayer to the extent of possession had become infructuous. The second suit was also decreed through a separate judgment, whereby, it was held that the relationship of landlord and tenant though denied by the respondent/lessee but had existed between the parties and as such, they were entitled to receive the rent as well as the possession because the lessee had made default in the payment of monthly rent. Accordingly, the suit was decreed for possession against the respondent/defendant with the direction that the appellants/plaintiffs would be entitled to the enhanced rent @ Rs,15,4u0 with effect from the date of the purchase of the property by them i,e, 22-12-1993. The prayer of the appellants/ plaintiffs for the enhanced monthly rent to the extent of Rs,32,000 was, however, dismissed as there was no evidence to that effect on record.
3. Feeling aggrieved of the aforesaid judgment of the learned trial Court, the appellants/plaintiffs filed R.F.A. No,56 of 1998 to impugn the judgment to the extent, whereby, the monthly rent was fixed @ Rs,15,400 instead of Rs,32,000 per month as claimed in the suit. The respondent/defendant feeling aggrieved of the impugned judgment, whereby, the suit was decreed against him in respect of possession and also to the extent of enhanced rent, instituted R.F.A. No,353 of 1998, whereby, he alleged that there was no relationship of landlord and tenant as he had become the owner of the property in question under an agreement with Kafayet Ullah which had been acted upon as he had been spending huge amount up to Rs,8,00,000 for the reconstruction and repair of the house which was liable to be adjusted towards the total sale-price of Rs,25,00,000.
4. In the light of the foregoing facts, all the three appeals have been heard simultaneously and as pointed out above, are proposed to be decided through this judgment.
5. We have heard the learned counsel for the parties at considerable length, It was contended by the learned counsel for the lessee/tenant that the findings of the learned trial Judge on Issue' No,6 suffered from misreading 'of evidence and were based on misconception of law; that the original owner of the house in question was Muhammad Rafique Raja and Miss Naseem Firdaus Siddiqui; that the house was initially rented to the lessee/tenant (hereinafter to be called tenant) by Kafayet Ullah Khalil who was general attorney of Muhammad Rafique Raja. As such, the learned trial Judge allegedly committed gross mistake to refer Article 115 of the Qanun-e-Shahadat Order, 1984 by holding that a tenant cannot deny the title of his landlord under the misconception of law. In this regard, it was submitted that in fact Kafayet Ullah Khalil was an agent of the original landlord and therefore, the tenant was justified to deny his locus standi to file the suit and also his tenancy under him. Reliance was placed on AIR 1914 Mad. 477 (Pattaikara Manakkal Kuppen v. Chvorakkapatti Munde Kottil and others) and AIR 1939 Lahore 49 (Daulat Ram v. Haveli Shah and another). It was, therefore, urged that Kafayet Ullah being an agent of Raja Muhammad Rafique, his title could be challenged though the title of the original landlord i,e, Raja Rafique could not be called in question.
Hence, there was no estoppel against the appellant/defendant to deny the title of Kafayet Ullah who was never an owner of the property in question at the time when the tenancy was agreed. In this regard, reference was made to Exh.D.3 and Exh.D.4, wherein, Raja Muhammad Rafique aforementioned had claimed ownership in the house and had made a prayer for the division of the plot in two parts but his prayer was rejected by the C.D.A. Vide letter, dated 19-3-1995 i,e, Exh./D.4.
Hence, it was submitted that since Kafayet Ullah was not the original owner and was only an agent acting for the original owner, therefore, there was no legal bar to deny his title at the trial qua the original, owner i,e, Raja Muhammad Rafique. Even the original sale-deed(Exh.P.1) was subjected to forgery for which a reference was made to the statement of the plaintiff who while under cross- examination had admitted certain cuttings and over-writings in the documents itself. It was, therefore alleged that on the basis of the forged document, no relief could be given to the plaintiff.
Even otherwise, the appellant/defendant did not have a props opportunity to lead evidence in the Court below because his evidence was closed for which he had to move the High Court in two different revision petitions and as such eve otherwise, the evidence of the appellant defendant having been shutout, the impugn' judgment and decree would not stand in the eyes of law as no sufficient opportunity w. Given at the trial. Similarly, the payment of rent was also denied as there was allegedly some agreement between Kafayet Ullah Khali and the appellant/defendant Mian Muhammad Attaullah that the house would be sold late for a consideration of Rs,25,00,000. The was admittedly an oral agreement between the parties which was allegedly acted up to because a colossal amount of Rs,8,00,00I was given to the plaintiff at different time and as such, oral agreement having been acted' upon, it had attained legal force to create tittle in the appellant/defendant. Likewise, it was contended that there were no arrears of rent to be paid by the appellant/defendant to any of the acclaiming landlords as determined by the learned Court below. In this respect, it was stated that the rent was paid in advance to the extent of Rs,3,36,000 for the first 24 month of the tenancy @ Rs,14,000 per month. The aforesaid rent was bifurcated into two part out of which Rs,8,000 represented rent of the premises, whereas, Rs,6,000 represented a rent for the furniture and fixtures. Since the furniture and fixtures were allegedly returned immediately after acquiring the premises o rent, therefore, the amount over and above Rs,8,000 was liable to be refunded and such, the appellant/defendant was in no was liable to pay any arrears of amount particularly when he had spent a huge amount of Rs,8,86,000 on the repair and upkeep on the house which was to he defrayed an adjusted towards the sale-price s.25,00,000. As such, it was alleged that he impugned decrees passed by the learned court below in both the cases were highly unjust and illegal and were liable to be set aside.
6. Learned counsel for the plaintiffs/respondents vehemently resisted the appeal filed by the tenant on the ground that admittedly the appellant/defendant had acquired the premises on rent basis and the event was fixed in writing through a written agreement Rs,14,000 per month. The Agreement was to last for two years but before at period could be completed, the parties ad fallen out against each other because of e dispute which had broken between them. Agreement Exh.D.7 was referred to in this respect which was entered into between Kafayet Ullah Khalil and Mian Muhammad Attaullah which was given a title of 'binding only'. It was, therefore, contended that respective of the ownership, the tenant could not deny the tenancy of a person under horn, he had acquired the possession. Since e tenant in this case had acquired possession had entered into an agreement with Kafayet Ullah Khalil, therefore, tenancy under him could not be denied by the appellant/defendant. In this respect, while eying on sections 105 and 116 of the transfer of Property Act read with Article 115 of the Qanun-e-Shahadat Order, 984; it was urged that once a relationship is established between a tenant and a landlord, later on the tenant cannot deny title of his lord under any law and if he does so, it will bring about forfeiture of his tenancy and e would be bound to surrender possession to landlord. Reliance was placed on 1995 CMR 678 (Supreme Court of Pakistan) Munjri Khan and others v. Faridoon Khan d 5 others) 1981 SCM R 139 (Messrs Muhammad Ismail & Bros. v. Malik Muhammad Tahir and others) 1991 CLC Note 257 at p.200; (Barkat Ali and others v. Deputy Commissioner, Hyderabad and others) and 1984 SCM R 330 (M.S. Khan v. Ch. Muhammad Afzal). It was also contended that a tenant 'holding over' possession would be a 'tenant by sufferance' and would be liable to pay damages to the lessor to double of the agreed rent if his possession was found to be illegal or contumacious. Likewise, an unregistered lease- deed for over one year could not be relied upon nor it can create any right in the appellant.
Reliance was placed on PLD 1976 Supreme Court 781 (Messrs Rahman Cotton Factory v. Messrs Nichimen Co. Ltd. (formerly Messrs Japan Cotton and General Trading Co. Ltd.), Karachi) and 1991 CLC No te 269 at p.207; Dawood Hercules Chemical Limited v. Water and Power Development Authority). Similarly, it was contended that the suit filed in the name of a firm i,e, Karamah Enterprises was not competent as was laid down in 1985 CLC 2514 (M. Aslam Awan v. Ras Tariq Chaudhry). The oral statement of the witnesses not averred in the pleadings would carry no value and would be liable to be ignored and discarded as held in AIR 1942 Privy Council 64 (Lala Ham Chand v. Lala Pearey Lal and others). It was, therefore, prayed that since the appellant/tenant had wrongly denied the title of the original owner, therefore, he had become a patent defaulter in the eyes of law and was rightly directed, to be dispossessed of the premises in question with the further direction of the payment of penal rent but the learned trial Court allegedly fell in error not to grant the double amount of the agreed rent. On the contrary, the tenant contended that the learned Court below fell in error to make an order of dispossession without properly tackling the point that the tenancy under an agent could be denied but not under an original owner. In the instant case, the locus standi of the agent was challenged and not of the owner and hence, no punishing ejectment order could be made nor the penal rent could be directed to be paid by the tenant who had already paid in excess to the landlord.
7. We have considered the foregoing contentions and have also gone through the record carefully.
It is to be seen whether the appellant hen and was justified to deny the title under Kafayet Ullah Khalil with whom he had entered into an agreement of tenancy. It may be pointed out that the authorities referred by the learned counsel for the appellant/tenant carried different connotation of the tenancy as according to the law laid down therein, the locus standi of a truster could be challenged by a trustee after the former had ceased to hold the office of the trust. As such, the situation in the reported authorities was different than the facts involved in the present case. In the instant case, there was a written agreement whereby the appellant/tenant had attorned his tenancy in favour of Kafayet Ullah and had agreed to pay monthly rent of Rs,14,000 which was bifurcated in two parts as stated above. Later on, a plea was invented by the tenant that he had entered into a lease-deed with the primary object that he would purchase the property in question as the owner was in need of the money as his children were studying abroad. There is nothing oh record to show such necessity as he ignored that fact altogether. Likewise it would be clear that nothing was said in the agreement in question that the real object of the agreement was to convert the same into a sale agreemeji at any stage. It was, therefore a pure and simple document showing the tenancy between the parties and as such, it cannot be successfully urged that there was no such relationship between the parties. As pointed out above in the reported cases it is now well settled that an erring tenant falsely denying the tenancy under his landlord would not be legally protected even if he later on admits such tenancy and also the right to pay rent or lease money. However, in the instant case, the appellant/tenant did not produce any written agreement to show that there was any collateral arrangement in addition to the written agreement of lease that there would be some sort of other transaction such as sale, and others in respect of the property in question. It is not understandable as to why such an important factor was not incorporated in the agreement itself particularly when the tenant had allegedly started paying huge money with the aforesaid objective in his view. Any prudent man with reasonable sense would safeguard such transaction by entering into some writing duly supported by the witnesses and other relevant material. In the instant case, it cannot be presumed that the appellant/tenant was so simple that he would agree to get the premises on lease by entering into a written agreement but would throw away huge money without getting anything in writing in respect of alleged sale transaction. It has, therefore, rightly been contended from the landlord side that after the sale of the property to the present appellant/plaintiff, the petitioner incorporated the plea of sale surreptitiously when he was given an opportunity to file the amended written statement in view of the amendment of the plaint to implead the new alienees in the suit below. It, therefore, appears that the appellant/tenant was quite intelligent and clever enough not to lose any opportunity to take advantage whenever it was possible for him to do so. If he could introduce a new plea while having an opportunity to reply to the amended plaint, he could also do so while replying the original plaint if at all there was some oral understanding between the parties that the lease agreement would be ultimately converted into the sale-deed after the payment of sale price.
Even otherwise, it does not appear to be prudent as observed that a person would spend a huge amount on a property only on the hope that he would get the ownership of the same without getting anything in writing. It has, therefore, rightly been stated that the subsequent plea of sale was just a bottomless issue without any truth in it and was introduced in order to complicate the matter, already having protracted trial. Similarly, the story about the bifurcation of the rent appears to be ill-founded because admittedly, the appellant had paid Rs,14,000 per month for the first year of the lease agreement. This may be a usual device to defeat any fiscal liability of exchequer but it had no truth in it that in fact there was some part of the rent i,e, Rs,6,000 to be paid for furniture and fixtures and that after the removal of the same, it was not liable to be paid any more. In fact, the actual rate of rent was Rs,14,000 per month which was admittedly paid for the first year but was stopped after the expiry of the aforesaid period and later on, the stories were invented to avoid the payment of the future rent. This gives us a firm impression that the appellant/tenant was all out to frustrate the payment of rent and to deprive the landlords of their legal right to receive the rent of the disputed premises. Such a contumacious tenant denying the title of the landlord persistently cannot be allowed to retain possession on the principle of 'holding over' as it would be a tenancy by 'sufferance'. In such a situation, the Court should examine the request for enhanced or penal rent if there was no provision already in the agreement. In the instant case, there was an agreement between the parties on the basis of which, the ejectment is sought. In the presence of that agreement, whereby, the tenant had-agreed to increase the rent t 10% of every two years, it would not be necessary to look any other provision for awarding the penal rent or the damages as has been alleged by the plaintiffs/landlords.
8. In view of our above discussion, we 'do not find any defect, patent or latent. In the impugned judgments and decrees passed by the learned trial Court in both the suits. All the appeal are, therefore, meritless and are dismissed. The judgment and decree passed in each suit by the Court below, is, however, maintained. Costs to follow the event.