' Applicants are occupants of shops constructed in 1314 Ward "B" Mirpurkhas. It is their claim that they themselves occupied the open space and constructed the shops. They, however, without giving the year of said occupation and construction pleaded that in 1961 Auqaf Department contacted them and expressed that the shops in their possession were constructed within Makhan Shah Waqf, therefore, they should execute tenancy agreements and pay the rent. The applicants entered int.() tenancy agreements and paid the rent to District Manager, Waqf Property, Mirpurkhas regularly. However, in June, 1986, they learnt that the shops were not part of Makhan Shah Waqf Property and were in the area of C.S. No,1314 belonging to Revenue Department. After that they realized that the tenancy agreements were executed under mistake and were void and unenforceable and not binding upon them. They, therefore, stopped paying rent from July, 1986.
2. After that they (applicants),filed F.C. Suit No,523 of 1986 in the Court of 1st Senior Civil Judge, Mirpurkhas praying for judgment and decree as under:-- A. Honourable Court may adjudge that the agreements of tenancy executed by plaintiffs in favour of defendants in respect of shops in their possession are void, inoperative and not binding upon theth and further order the same to be delivered up and cancelled. B. Issue injunction against defendants or any of them from acting on such void tenancy agreements and collecting rent from the plaintiffs and from ejecting them from the shops in their occupation personally or through any subordinate or agent. C. Award costs of the suit to the plaintiff. D. Grant any other relief to which the plaintiffs, may be found entitled under the facts and circumstances of the case.
3. After the institution. Of the suit the Chief Administrator Auqaf, Sindh at Karachi issued Notification dated '8-9-1987 insting C.S. No,1314, Ward '13', Mirpurkhas also in the schedule of the properties. It will be relevant to mention here that the shops with the applicants were already in the schedule notified by Notification, dated 24-5-1967. After issuance of notification dated 8-9-1987 that the applicants/plaintiffs amended their plaint challenging also the insertion of C.S. No,1314 in the schedule.
4. The respondent. No,1/defendant No,1 then filed written statement and resisted the suit whereas the remaining were declared ex parte. In his written statement the respondent No,1/defendant No, I claimed C.S. No,1314, Ward '13' and the shops in possession of applicants/plaintiffs to be Waqf property. He also challenged the jurisdiction of the Court and claimed the suit to be barred by law.
5. It will be relevant to mention here that during pendency of the suit the applicants/plaintiffs filed a petition (Petition No,2 of 1988) under section 11 of Sindh Waqf Property Ordinance, 1979, before District Judge, Mirpurkhas for declaration that shops situated at C.S. No,1314, Ward 13' were not Waqf property attached to Shrine of Makkhan Shah and Lahoot Ali Shah. The petition was accepted on 8- 3-1989 by the Additional District Judge, Mirpurkhas to whom it was assigned by the District Judge.
Appeal against that judgment is pending in this Court.
6. However, the suit filed by the Anjuman/applicant was dismissed by the Senior Civil Judge, Mirpurkhas, by judgment and decree dated 8-10-1998 and 12-10-1998 respectively. Those were impugned through appeal which too was dismissed by the learned 1st Additional District Judge, Mirpurkhas by judgment, dated 5-8-2000 and decree dated 16-8-2000. Against the judgments and decrees of the learned two Courts below present revision application has been filed.
7. While arguing the application at Katcha Peshi stage Mr. Muhammad Ismail H. Memon, contended that it is true that the applicants had acknowledged the respondents Nos.1 to 3 as their landlord and entered into tenancy agreements still they could file the suit challenging their title and entitlement to receive the rent after knowing that the space on which the shops were constructed was not Waqf property and was property of Sindh Government. The learned counsel contended further that in Notifications dated 19-1-1961 and 24-5-1967 Chief Administrator Auqaf had not claimed C.S. No,1314 to be property of Waqf attached with the Shrine of Makhan Shah and Lahoot Ali Shah. It was only notification dated 8-9-1987 whereby the schedule of properties was modified and C.S. No,1314 inserted in it. According to the learned Advocate insertion of C.S. No,1314 in the notification was illegal as that city survey number was property of Government of Sindh and was not attached with the Shrine of Makhan Shah and Lahoot Ali Shah. Therefore, suit filed by the applicants for declaration and permanent injunction was maintainable. In support of his contention the learned Advocate referred to pronouncement reported in PLD 1987 Kar. 159 Re: T.
Motandas v. Anis Ahmed.
8. Undisputedly the applicants encroached upon the area and raised constructions unauthorizedly.
Later on they entered into tenancy agreements with Auqaf Department during 1961 and kept on paying rent to them. They stopped payment of rent only from July, 1986. It is settled position of law that tenant is estopped from challenging the landlord's title or his entitlement to receive the rent after acknowledging him as the landlord and paying the fent to him. The only exception as held in the pronouncement referred to above PLD 1987 Kar. 159 is the event when the landlord claiming title is strip off the title finally. The shops with the applicants were already among the properties in the schedule of properties in the Notification dated 24-5-1967. Only C.S. No,1314 was omitted in that Notification which was included in the Schedule under Notification dated 8-9-1987. Thus it was definitely not the position at the time of institution of applicants' suit (F.C.S. No,523 of 1986) that the title or claim of Auqaf Department had disappeared or, ended. The trial Court and the Appellate Court have rightly held that the applicants/ plaintiffs could not challenge the title of Auqaf Department and seek declaration about their entitlement to recover the rent.
9. It was argued by applicants' learned Advocate that the tenancy agreement was Void for having been executed by the parties under mistake as to the matter of fact regarding the title and, as such, suit for declaring it void does lie. Present is not the case where the tenancy agreement could be treated as void for the reason that both parties were under mistake about the fact of title over the property/area in question. Here the tenants have started challenging the title of landlord alleging that it is illegally claiming the area under shops to be attached with Shrine of Makhan Shah and Lahoot Ali Shah whereas the Auqaf Department is very firmly claiming the area i,e, C.S. No,1314 including the shops with the applicants to be attached with the shrines. This can be at the most, a case of challenge to the claim of title and not a case of mistake as to matter of fact i,e, title.
10. Moreover, the title or claim of the Auqaf Department has not been challenged by the Government, therefore, there is no controversy or conflict between the Government and Aqua Department in respect of the area of C.S. No,1314 and shops built thereon. It is the third party who has started claiming that the area of C.S. No,1314 belongs to Government and not to the Aqua Department and they prayed for declaration and permanent injunction.
11. There can be no two opinions on the fact that the entry of the applicants on the area and construction of shops thereon were the acts without lawful authority. The continuity of possession over the shops became authorized only due to tenancy agreement. After refusing to pay the rent and challenging the tenancy agreements the status of the appellants/applicants again becomes as of unauthorized occupants. Requirement of section 42, Specific Relief Act for the grant of declaration is the existence of a legal character or a legal right. The applicants have not based their suit on legal character or legal right. In absence thereof the discretionary relief of declaration cannot be granted. Moreover the Courts are also required to look into the conduct and behavior of the parties while considering the prayer for declaration. In present case the applicants stopped payment of rent at their own and then involved their landlord into litigation with the sole object to avoid the payment of rent. It is not so that they started paying the rent to the Government after stopping the payment to Auqaf Department. Their conduct, therefore, is not fair and bona fide. That factor also stands in the way of discretionary relief of declaration.
12. As regards the issues regarding the title the trial as well as Appellate Court did not give finding on that point for the reason that the order passed by learned Additional District Judge, Mirpurkhas in petition filed by the applicants under section 11 of Sindh Waqf Properties Ordinance, 1979, was challenged before this Court through appeal which was still pending. Obviously the sole issue in that petition and appeal is of title and the decision is yet to come. However, as held above the applicants were estopped from challenging the title of their landlord i,e,1 Aqua Department through the suit and the same was not maintainable. In C yiew of the above conclusion the trial as well as Appellate Court was not required to enter into the exercise of discussing and deciding the question of title. They have rightly dismissed the suit and appeal advancing sound reasons. The revision application is meritless.
13. Above are the reasons for short order, dated 23-1-2003.
' Revision .