1. ' SAIDUZZAMAN SIDDIQUI. C.J.---We propose to dispose of above mentioned 2 civil appeals by common judgment as questions of law and facts involved in these appeals are similar. Leave was granted in Civil Appeal No. 75-Q of 1994 to consider, inter alia, whether the respondents, who were inducted in the shops/ Khokhas in dispute as tenants by the appellants can challenge their title to the property in dispute while in Civil Appeal No.76-Q of 1994 leave was granted to consider whether the deposit of monthly rent of the shop/khokha by the respondents in favour of Safeer Masjid and not in the name of the appellants, was a proper deposit in terms of section 13(6) of Balochistan Urban Rent Restriction Ordinance, 1959 (hereinafter to-be referred as the 'Ordinance').
2. ' The relevant facts of the cases are that respondents in the above- mentioned two appeals are the tenants of the appellants. It is admitted by the learned counsel for the respondents that they were inducted in the 2 Khokhas in their respective possession bearing No.4-25/1127-C and 4/25/1127-d Meconghy Road, Quetta (hereinafter to be referred as the 'suit property') by the predecessor-in- interest of the appellants Maulvi Jan Muhammad. It is an. Admitted position that by Notification, dated 25th of September, 1983, issued by Government of Balochistan, Auqaf Department, Khasra No.3681 measuring 1328 sq.Ft open-land, Khasra No.3682 measuring 2774 sq.Ft on which mosque is constructed and Khasra No.3682 measuring 2867 sq.Ft. 5 shops attached to the mosque and 9 Khokhas situated on Prince Road/Meconghy Road, Quetta, were acquired and taken over for management and control by Auqaf Administration, Balochistan, Quetta. The above notification was challenged by the appellants before the District Judge, Quetta, under section 11 of the Balochistan Waqf Properties Ordinance, 1979. This petition was dismissed by the District Judge on 15-2--1988 against which the appellants preferred Civil Miscellaneous Appeal No.6 of 1988. Although the appeal filed by the appellants was dismissed by the High Court but in the course of decision of the said appeal, the learned Chief Justice made the following observations in the judgment:- "The private respondents' case mainly rests on Exhs.R.1 and R.4, which were stated to be issued by the Mayor Municipal Corporation, Quetta. In R.4 it is stated that Khokhas were not unauthorised nor belong to any individual. But Exh.P.A had not been disproved by the Municipal Corporation. No witness had appeared that the letter Exh.R.1 was signed by the Mayor of the Corporation. The appellant Qari Abdul Rehman has stated that these Khokhas were constructed from their own sources and the tenants have occupied these Khokhas on lease from the appellants. As such it is held that the Khokas belong to the appellants and they had constructed them. It is not part of the Mosque. The Notification of respondent No.1 to the extent of Khokas is declared to be illegal as the same are not Waqf and are the properties of the appellants. It would be fair and in the interest of justice if the respondent No.1 withdraws the Notification with regard to Khokas in question."
3. ' In view of the above findings by the learned Chief Justice, it is quite clear that the Notification issued by Auqaf Department to the extent it took over Khokas adjacent to the mosque, was declared as without lawful authority and Auqaf Department was directed to withdraw the Notification to that extent. The order passed by the learned Chief. Justice in Civil Miscellaneous Appeal No.6 of 1988 was challenged before this Court in Civil Appeal No.3-Q of 1989 by the predecessor-in-interest of present appellants. While the above appeal was pending before this Court the Auqaf Department, Government of Balochistan, issued the following notification on 3-9- 1991:-- "No.441-3/88-Auqaf/253-92. The Chief Administrator, Auqaf Balochistan, is pleased to rescind its Notification No.24-3/73- Auqaf, dated 25th Sptember, 1983, regarding taking over of the administrative control, management and maintenance of Safeer Masjid alongwith its attached properties falling under Khasra Nos.3681, 3682, 3682/1 and 9-Khokhas sitauted at the crossing of MeConghey Prince Road, Quetta, with immediate effect and to restore their possession to Moulvi Jan Muhammad son of Khuda Yar Khan Noorzai, Mutawali and Pesh Imam of Safeer Masjid, Prince Road, Quetta. (Sd.) IZZAT AZIZ KURD, Chief Administrator Auqaf, Balochistan."As a result of de- notifiction of the properties which were taken over by Auqaf Department vide Notification, dated 25th of September, 1983, the appeal pending before this Court was dismissed as infructuous. On disposal of appeal by the Supreme Court, Auqaf Department issued notices to the tenants of the properties which were earlier taken over by Auqaf, Department, directing them to pay rent of the premises to Maulvi Jan Muhammad. In spite of the de-notification of the properties, the respondents in the above appeals again challenged the notification de-notifying the properties by the Auqaf Department before the District Judge which was dismissed on 12-11-1991. The appeal filed against the order of District Judge, dated 12-11-1991, was also dismissed by the High Court when it was withdrawn by them on 26-4-1993. It was in these circumstances that Maulvi Jan Muhammad, predecessor-in-interest of present appellants, filed eviction application against the respondents in Civil Appeal No.75-Q of 1994 and Civil Appeal No.76-Q of 1994. Against the respondents in Civil Appeal No.75-Q of 1994 allegation was that the original tenant Jumma Khan has sublet the property in his possession without consent of the landlord to Jamaluddin respondent No. 1 . Against the respondent in Civil Appeal No.76- Q of 1994 allegation was that he had committed default in payment of rent w.e.f. 15-9-1993 till filing of the ejectemnt case. Since the eviction of respondents in the 2 appeals was sought on different grounds, we will take up both the appeals for their disposal separately. We will first take up Civil Appeal No.75-Q of 1994.
4. C.A.75-0 of 1994 ' The appellants in this appeal alleged that the Khokha, bearing No.4-25/1127-C, was let out to one Jumma Khan under a written agreement of tenancy. The said Jumma Khan, without consent of appellants, let out the property to Jamaluddin respondent No.1 in this appeal. It is the case of appellants that subletting had taken place by Jumma Khan in favour of Jamaluddin during the period when the property was taken over by Auqaf Department under Notification of 1983. It is also the case of the appellants that when the property was de-notified by Auqaf Department by Notification, dated 3-9-1991, respondent No.1 Jamaluddin approached the appellants and they accepted him as tenant. It appears that Jamaluddin was subsequently dispossessed by Jumma Khan, and therefore, the appellants filed an application for eviction of Jumma Khan on the ground that respondent No.1 had sublet the shop to respondent No.2 without their consent and knowledge.
5. From the facts stated above, it is quite clear that Jumma Khan was the original tenant of the appellants in respect of Khokha No.4-25/1127-C and that according to the appellants own showing he had allegedly, illegally and without consent of appellants sublet the said Khokha to Jamaluddin respondent No.
1. It is admitted before us by respondent No.1 that tenancy agreement between the appellants and Jumma Khan was never terminated as a result of subletting by Jumma Khan in favour of Jamaluddin. It is also admitted by appellants that there is no finding by any competent Court holding that Jumma Khan had sublet the property illegally to Jamaluddin. It is not disputed by the learned counsel that Jamaluddin was dispossessed and Jumma Khan had re-occupied the Khokha at the time when application on the ground of subletting was instituted. Since Jumma Khan at no stage had surrendered tenancy of the Khokha in favour of Jamaluddin or the appellants, it cannot be said that the agreement of tenancy existing between the appellants and Juma Khan came to an end as a result of alleged subletting by Jumma Khan in favour of Jamaluddin. The mere fact that the appellants had treated Jamaluddin as tenant after the property was de-notified, could not bring an end to the agreement which the appellants had executed in favour of Jumma Khan in respect of the Khokha. In these circumstances, it cannot be said that the allegation of subletting stood proved in the case. Therefore, to the extent the appellants sought eviction of Jamaluddin on the allegation that he was a subletee of the Khokha unauthorizedly by Jumma Khan cannot succeed. However, with regard to the objection of respondents before the learned Rent Controller as well as before the 1st appellate Court that the property did not belong to the appellants, the same cannot succeed as in the judgment of the High Court passed in Civil Miscellaneous Appeal No.6 of 1988, it was categorically held that in so far Khokhas were concerned, they were the personal property of Maulvi Jan Muhammad who had let out the property under a written agreement to Jumma Khan. Therefore, C.A.75-Q of 1994 is dismissed but while we are setting aside judgment of the High Court to the extent it held that the appellants are not owners of the Khokha, in possession of Jumma Khan, we maintain the judgment of the High Court dismissing the application of appellants for eviction of Jumma Khan from the Khokha on the ground of subletting. We now take up the other appeal, Civil Appeal No.76-Q of 1994.
6. C.A.76-O of 1994 ' In this appeal, allegation against the respondent is that he committed default in payment of rent.
7. It is an admitted position that during pendency of the appeal, the respondent was directed to deposite rent under section 13(6) of the Ordinance until disposal of the suit. It is an admitted position that upto 12-3-1993 the respondents continued depositing rent in the name of the appellant. However, from June, 1993 he started depositing the rent in the name of Safeer Masjid instead of appellants. Since the rent was not deposited by the respondents in the name of landlord but in the name of a 3rd party such deposit could not be deemed to be a proper deposit in terms of section 13(6) of the Ordinance (See PLD 1980 SC 9 and 1991 SCM R 429). Since the respondents had committed deliberate default in compliance of the order under section 13 (ibid), their defence is struck off in the case and they are directed to be evicted from the premises in their possession.
8. However, they are allowed six months' time to vacate the premises. This appeal is, accordingly, allowed and the judgment of High Court is set aside. There will, however, be no order as to costs.