ABDUL SHAKOOR PARACHA, J.---This appeal impugnes the judgment and decree, dated 2-12-1998 passed by the learned Civil Judge, Islamabad, whereby the suit of the plaintiff-respondent for possession through the ejectment and recovery of rent/compensation at the double rate of rent i.e. Rs.88,550 per month from 1-11-1995 to onwards till the date of vacation, was decreed in favour of the plaintiff-respondent and against the appellant.
2. Briefly stated the facts are that House No.8 (107-H) Hospital Road, G-6/3, was owned by Sheikh Khalid Jamil, resident of Lahore. This house was leased out by previous owner to the appellant- defendant vide lease agreement dated 23-7-1990 commenced from 1-8-1990 for. a period of three years at monthly rate of rent of Rs.35,000 per month through rent deed, dated 7-5-1995. The respondent-plaintiff purchased the above-stated house from the said original owner. The plaintiff- respondent served the appellant-defendant a notice dated 27-7-1995 for vacation of the house.
On refusal of the appellant to vacate the house, the respondent-plaintiff filed a suit for possession through ejectment and also claimed rent at the rate of Rs.88,550 per month from 1-11-1995 to onwards till the date of vacation.
3. The appellant-defendant resisted the suit by filing the written statement. It was contended that the rent is being paid regularly to the lessor. This fact was acknowledged by the plaintiff by withdrawing the amount from the Bank. On merits the suit was resisted on the ground that the plaintiff is neither entitled for the decree of possession nor the rent/compensation at the double rate of rent i.e. Rs.88,550 per month from 1-11-1995.
4. From the divergent pleadings of the parties, the learned trial Court framed the following issues:-- (1)Whether the defendant had been regularly paying rent to the landlord, if so, for what period?
OPD (2)Whether the plaintiff cannot seek ejectment in view of sections 112, 113 and 114 of the Transfer of Property Act? OPD (3)Whether the suit of the plaintiff is not maintainable in view of the preliminary Objections Nos.1 to 9 of the written statement? OPD (4)Whether the plaintiff has no cause of action and locus standi? OPD (5)Whether the suit is false and frivolous, as such, the defendant is entitled to special costs under section 35A of C.P.C. If so, to what extent? OPD (6)Whether the plaintiff is lawful owner of the suit property No.8 (Old No. 107-H), Hospital Road, G- 6/3, Islamabad? OPP (7)Whether the defendant is a rent defaulter, if so, for what period and to what effect? OPP (8)Whether the plaintiff is entitled to possession through ejectment? OPP (9)Relief.
5. The learned Civil Judge decided Issue No.7 in favour of the plaintiff and observed that he is lawful owner of the suit property. While deciding Issue No.3 the learned Court found that the suit of the respondent-plaintiff was maintainable. Under Issues Nos. 5 and 4 it was held that the suit is not false and frivolous, therefore, both the issues were answered in favour of the plaintiff and against the defendant. On Issue No.2 the finding was recorded by the learned trial Court in favour of the plaintiff-respondent by observing that the suit is not barred under sections 112 to 114 of the Transfer of Property Act. Issues Nos. 1 and 7 were discussed together and the Court found that defendant- appellant paid the rent to the previous owner, therefore, she is not defaulter. These issues were decided in favour of the appellant-defendant. The privotal issue was regarding the entitlement of the respondent for possession through ejectment, which was decided in favour of the respondent on the ground that lease has expired and the plaintiff is entitled for the possession.
6. As far as the claim of payment of double rate of rent is concerned, the learned trial Court held that in this case the status of the defendant after 1-11-1995 has become that of the trespasser so the plaintiff is entitled to the compensation at the rate of rent i.e. Rs.88,550 per month from 1-11- 1995 to onwards till the date of occupation. In view of the findings on the above issues, the suit of the plaintiff-respondent for possession through ejectment and recovery of rent --compensation at the double rate of rent i.e. Rs.88,550 per month from 1-11-1995 onwards till the date of vacation has been decreed vide judgment dated 2-11-1998.
7. Before us, the learned counsel for the appellant has challenged the finding on Issue No.8 recorded by. The learned Civil Judge, whereby it has been found that in this case the status of the defendant after 1-11-1995 has become that of trespasser. He contends that the rent was paid :to the previous owner and the respondent after the purchase of the house through sale-deed, dated 1-7- 1995 received the rent of Rs.1,32,825 as rent for three months from August to October, 1995 (disputed period) and the amount was withdrawn through the Bank and, therefore, by no stretch of imagination, the appellant can be termed as trespasser. Reliance has been placed on the case reported in 1982 SCMR 1056 and 1984 SCMR 444.
8. Conversely, the learned counsel for the respondent contends that lease period had expired and the plaintiff was entitled for the possession which was refused by the appellant without any legal justification and, therefore, mense profit is the same which can be given in damages for trespasser against a tenant who holds over after lawful determination of his tenancy. According to him, mense profit could be claimed from the tenant. Reliance has been placed on the cases of Dr. Mrs. Nasreen v. Pakistan and others 200.1 CLC 1025; Messrs Rehman's Cotton Factory v. Messrs Nichimen Company Limited (formerly Messrs Japan Cotton and General Trading Co. Ltd.), Karachi PLD 1976 SC 781; Messrs Rehman's Cotton Factory v. Messrs Nichimen Co. Ltd., Karachi PLD 1970 Lah. 455; Sultan Muhammad v. Muhammad Ashraf and 4 others 1991 CLC 269 and Federation of Pakistan through Secretary, Ministry of Housing and Works, Islamabad v. Mst. Ismat Qayyum Malik PLD 1994 Lah.360.
9. The crucial issue in this case is Issue No.8. Admittedly the lease has expired and the plaintiff was entitled for the possession. As far as the claim of the payment of double, rate of rent is concerned, the mense profit can be given for the damages for a trespasser against the tenant, who holds over after lawful determination after its tenancy. Mense profits can be claimed from the date when the tenant seized to hold the premises in dispute as tenant had become a trespasser.
10. Although, the Transfer of Property Act is not applicable in the Capital Territory of Islamabad yet its principles will apply as held in the case of 1982 SCMR 1056. There is dispute that the appellant was in occupation of the house under the lease agreement, which was unregistered document.
Under section 17 read with section 49(a) of the Registration Act (XVI of 1908), an instrument requiring compulsory registration but not registered, does not operate to "create, declare, assign limited or extinguish any right, title or interest in any immovable property. Such instrument can be received in evidence for collateral purpose", as held in the case or Messrs Rehman's Cotton Factory v. Nichimen :o. Ltd. (formerly Messrs Japan Cotton and General Trading Co. Ltd.), Karachi PLD 1976 SC 781. Whether in this case the status A the appellant was of a tenant, "holding over" or "tenant by sufferance", under the law.
11. To appreciate the real controversy provisions of section 116 of the Transfer of Property Act (IV of 1982) is relevant which is reproduced as under:--- "116. Effect of holding over.---If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to this continuing in possession, the lease is, in the absence of an agreement to the contrary renewed from year to year, or from month to month, according to the purpose for which , the property, is leased as specified in section
106. " ,
12. The above two expressions "holding over" and "tenant by sufferance" came up for interpretation in the case of Messrs Rehman's Cotton Factory PLD 1976 SC 781 (supra) and their Lordships observed that:
(b) Transfer of Property Act (IV of 1882)--- S.116---Tenant "holding over"----Tenant by sufferance'---Possession, contumacious--- Damages- -- Tenant continuing in possession after determination of lease with consent of lessor whether express or tacit----Different in position from that of a tenant continuing in possession without consent of lessor---Lessee's position in latter case that of a 'tenant by sufferance'---Essential condition for treating lessee as tenant "holding over"; acceptance of rent by lessor or otherwise assenting to lessee's continuous possession---Lessor twice peremptorily refusing lessee's request for extension of lease period, having decided to re-enter business himself and no evidence produced showing lessor's assent to lessee's continuance in possession, lessee's possession, held, contumacious and wrongful, entitling lessor to damages.
There is clear distinction between a tenant continuing in possession after the determination of the lease with the consent of the lessor whether express or tacit and a tenant continuing in possession without the consent of his lessor. In the latter case the lessee's position is that of a "tenant by sufferance" in the language of the English Law. Under section 116 of the Transfer of Property Act, the essential condition for treating a lessee, as tenant "holding over" is that the lessor accepts rent or otherwise assents to the lessee's continuing in possession. But there is not a speak of evidence to that effect; rather all indications on the record point to the opposite. It is not denied that twice the respondent per--emptorily refused the appellant's request for extension of lease beyond the date of expiry of the lease, because the respondent had decided to re-enter the business of ginning cotton in Pakistan itself. Therefore, the Courts rightly concluded that the appellant's possession of the factory after the date of expiry of the lease was contumacious and therefore wrongful. Hence the liability to pay damages. "
12-A. On the touchstone of the provision of section 116 of the Transfer of Property Act and the case reported in PLD 1976 SC 781 (supra) we have examined the case of the parties. Admittedly the lease expired on 1-11-1995. The appellant was served with the notice dated 27-7-1995 to vacate the house. It is also an admitted fact that the lease was not renewed or extended. Thereafter respondent Mian Muhammad Iqbal had not accepted any rent. In this view of the matter, the status of the appellant was of a tenant by sufferance and not of holding over. Therefore, the appellant was trespasser after the expiry of lease and issuance of the notice. In the similar circumstances in a case titled Sh. Liaqat Ali v. Riaz Ahmad C.P.L.A. No.1322 of 1999) the Hon'ble Supreme Court maintained the order of ejectment and also awarding of compensation double the rate of rent per month and observed that:-- "Admittedly, the petitioner was. a tenant to whom a notice for termination of the tenancy dated 5- 9-1994 had been sent and served. It was not the case of the petitioner that there was any subsequent agreement for renewal of the tenancy. Since in this case the tenancy stood determined through the service of notice, we also do not find any flaw in the judgments of the Courts below."
Suffice to say that the appellant was running a school in the residential house owned by the respondent despite expiry of the lease period and service of notice on him.
For what has been discussed above, the appeal has no merits and the same is dismissed with costs.