P L D 1971 Karachi 553 (PLP)

Wafhuddin Ahmad for Plaintiff. Niamat Moulvi for Defendant No:

1. Dates of hearing : 24th September; 7th, and 15th October 1970. This is a suit for ejectment of the defendant from Shop No. 8 (hereinafter called the said premises) in a building known as "Shafiq Building" on Survey No. 87 Sheet No. R. C. 12, Ranchore Lines, Karachi. The relevant facts are these. The plaintiff's husband, Muhammad Shafiq, acquired the whole of the building under a deed of exchange dated 3rd June 1963 (?) and he gifted this building to the present plaintiff. This shop was, at the time of Partition, in occupation of one Ratilal who, before migrating to India, is alleged to have sold his business and transferred his tenancy rights in the shop to one Abbas Bhai. Abbas Bhai transferred the business and the tenancy rights to one Ghulam Ali who, in turn, transferred the same to Barkat Ali father and husband respectively of defendants 1 and 2 and to Ahmad Ali. As is found from my judgment dated 9‑5‑1966 in Revision Applications Nos. 8 and 9 of ; 962, this transfer was not made with the permission of the landlord: Sometime in 1952 (?) Muhammad Shafiq commenced proceedings in the Small Causes Court under section 18 of the Karachi Small Causes Courts Act (IV of 1929) against Barkat Ali. This application was accepted by order dated 1st July 1953. A hmad Ali then filed a suit under section 24 of the Karachi Small Causes Courts Act for trespass against Muhammad Shafiq for the purpose of obtaining a declaration that the ejectment decree given by the Small Causes Courts against Barkat Ali was not binding on Ahmad Ali. This suit was registered as Suit No. 308 of 1956. Muhammad Shafiq also filed three separate suits against Barkat Ali, being Nos. 232 of 1955, 1250 of 1956 and 95 of 1958. All these three, suits were for recovery of compensation for wrongful use and occupation of the said shop for the period from 1‑11‑1951 to 31‑11‑1953. These three suits and the suit filed by Ahmad Ali. were consolidated and were tried together and were decided by a common judgment on 25th August 1961. In result, Ahmad Ali's suit under section 24 of the Karachi Small Causes Courts Act was dismissed and Muhammad Shafiq's three suits for recovery of compensation were decreed. No appeal or revision was filed by Ahmad Ali or even by the present defendants against the dismissal of the suit under section 24 of the Small Causes Courts Act, or the decree given in the three suits referred to above in favour of Muhammad Shafiq. Fateh Ali and Mst. Noor Begum, defendants 1 and 2 in the present suit, came in revision to this Court, being Revision Applications Nos. 8 and 9 of 1962, only against de‑roes given in Suits Nos. 232 of 1955 and 95 of 1918. This Revision Application was heard by me and r the main ground takeen before me then was that the original f tenant, Ratilal, having migrated to India, the tenancy rights vested in the Custodian, and thereforb no decree for compensa tion for wrongful use and occupation could be granted by the trial Court against Bark it Ali 'or his heirs, namely, the present defendants 1 and

2. But I took note of the order of the Custodian of Evacuee Property dated 1st March 1960, in which a declaration was granted by the Additional Custodian (Judicial) on 13‑121958 to the effect that the tenancy rights in the said premises were not proved to be evacuee property and, further, even assuming that Ratilal was an evacuee,. Barkat Ali and his heirs had no right to remain in possession of the said shop and their status was merely that, of trespassers. On the next date, that is, tad March 1960, the Custodian,, by way cf abundant caution surrendered tenancy rights in the said shop in exercise of the powers conferred on him by sections 9 and 25 of the Pakistan (Administration of Evacuee Property) Act, 1957. In view of these two orders I came to the conclusion that ‑ the present defendants' contention that the tenancy rights vested in the Custodian had lost force. I further came to the conclusion that the three suits filed by Muhammad Shafiq were maintainable as the Custodian himself had treated the present defendants' possession as that of mere trespassers and not under any right derived from Ratilal or the Custodian. For these reasons the defendants' Revision Applications were dismissed by me on 9th May 1966. In the meantime Muhammad Shafiq had taken execution proceedings against the defendants. The last of such application was heard by. Mr. A. G. Muhammadally. Judge, Small C3us‑.s Court, Kara‑.hi, and decided on 25th Novamber 1966, his order being Exh. 9 in the present proceedings. Several points were urged before the learned Judge ; one of the points related to limitation, to the effect that ejectment decree having been obtained in 1953, its execution became time.barred by the time the last execution application was filed in the Small Causes Court, but this plea was rejected in view of the fact that stay orders and injunction had been given in favour of the defendants and their predecessor‑in‑interest by the superior Courts from time to time. Bat, nevertheless, the execution application was dismissed as the learned Judge took the view that ejectment under section 18 of the Karachi Snall Causes Courts Act, 1929, could be ordered only against a tenant or a licensee, and riot against a trespasser. The plaintiff then came to this Court in the present suit for ejectment of the defendant and for recovery of mesne profits from him.

2. In their written statements, the defendants took the plea that they were not trespassers ; that the suit had been over valued, and therefore this Court had no jurisdiction ; and the defendants are in adverse possession of the said premises, and therefore the suit was barred by limitation. The plaintiff examined Ghulam Ahmad Khan, her rent collector, whereas, on behalf of the defendants, the defendant Fateh Alt examined himself. After hearing the parties my answers to the issues are as under:

3. Issue No. 1(a).‑--This issue stands concluded by my judgment in Revision Applications Nos. 8 and 9 of 1962, which is Exh. 8 in proceedings, and in which it has been were trespassers in the said premises. As regards Issue this will be dealt with at the end. Therefore, Issue No. 1 against the defendants.

4. Issue No. 2.‑--With regard to the allegation that the suit is over‑valued, the plaintiff's witness Ghulam Ahmad Khan stated that the said premises are situated in a commercial area and if vacated, they would at least fetch Rs. 30,000.00 to Rs. 40,000.00 with vacant possession. On the other hand, the defendant Fateh Ali stated in his evidence that he had experience of valuation of the buildings, as he was a building contractor and that the land in the locality in which the said premises are situated should not exceed Rs. 200.00 per sq. yd. in 1957, and the superstructure Rs. 5,000.00 only. According to him, the value of the said premises should not be more than Rs. 10,00100. The witness produced the certificate of an architect as Exh. 11/1. The architect is A. Razzaque Umerani and his certificate, which is dated 22nd November 1967, states that the value of the land is Rs. 2,500.00 and the value of the superstructure is Rs. 6,645.00, the total value being Rs. 9,145.00. The plaintiff also produced a certificate of Estate Brokers and Values, namely, Messrs R. P. Kharas & Co. as Exh. 11/2, according to whom the value of the said premises should be between Rs. 35,000.00 and Rs. 40,000.03. This certificate is dated 16th April 1970. But no reliance can be placed on either of these two certificates, as have not been examined in Court. I oral evidence led on behalf of the plaintiff defendant Fateh Ali. I am more inclined to agree with evidence of the plaintiff. The said premises commercial locality, and I have not the least doubt that with vacant possession, the premises will fetch at least Rs. 30,000.00, if not more. I am, therefore, of the view that the suit has not been over‑valued. This issue is, therefore, decided against the defendants.

5. Issue No. 3.‑Under this issue, the question is whether the defendants' possession became adverse to that of the plaintiff and the suit was, therefore, according to Mr. U. Niamat Moulvi, the defendants' learned Advocate, barred by limitation under Article 144 of the Limitation Act. This article provides a period of twelve years for recovery of immovable property from the date when the possession of the defendants becomes adverse to the plaintiff. Mr. U. Niamat Moulvi relied, for his contention on a passage in Obhrai's Limitation Act, Vol. 11 (1936 Edn.), p. 2264, in which the rule is stated, on the basis of the Bombay decision in Maidin Safba v. Nagapa ((1882) 7 Born. 96), that where the defendant in possession sets up a pretended tenancy under the plaintiff, which the latter denied, or where the possession of the defendant is on the basis of a void lease, his position is that of a trespasser, sufficient to acquire a limited interest by prescription. Mr. U. Niamat Moulvi also referred to the decisions in Zainab Bai v. Ibrahimji and others (P L D 1962 Kar. 209), Jogendra Chandra Kapali Chowdhury v. Arjun Chandra Kapali and others (P L D 1964 Dacca 498) and Mir Plo and another v. Mir Nawaz and others (P L D 1965 Pesh. 178). But neither of these cases specifically deal with the point at issue. Therefore, the question is what is the effect of the Bombay decision referred to in the commentary of Obhrai and relied upon by Mr. U. Niamat Moulvi. But before I consider the effect of the Bombay decision, I should refer to the evidence of the 'defendant Fateh Ali with regard to the question of adverse possession. A question was put to this defendant in this form‑"When did you first deny or repudiate your occupation of the disputed shop as a tenant?" Defendant's answer was that : "I have never taken this plea. Throughout I have been claiming to be tenant". Therefore, the defendant's case is that he never asserted a title hostile to the plaintiff or hdr predecessor‑in‑interest. In the written statement, the defendant stated as follows :‑ "Apart therefrom, the present suit is patently barred by Article 144 of the Limitation Act as the present suit for recovery of possession of immovable property in the shape of shop in dispute is being filed after a period of about 19 years as the defendants' position of being trespassers came to the knowledge of the plaintiff's husband/Attorney sometime in the year 1949 as per the plaintiff's Attorney's own showing." But the evidence given by him in the Court categorically state, that the defendant never denied or repudiated his status as tenant. In other words, the defendant never set up or asserted an adverse title. Therefore, the question arises what is the effect of the plaintiff treating the defendants as trespassers and the defendants continuing to assert that they are tenants? Does the Bombay decision debar the plaintiff altogether from claiming title to the said premises, or have the defendant, acquired prescriptive rights to the said premises? This point ha; been discussed in another Bambay decision Buderab and anothe v. Hanmanta (I L R 21 Born. 509) in which it has been held that a landlord allowing the tenant to assert the validity of an invalid lease for the statutory period of more than twelve years may be debarred fron questioning the right of the tenant to hold the disputed premise under the terms of the said lease. In another Bombay case, Thakore Fateshingji Dipsangjl v. Ramanji Ardeshir Dalal. (I L R 27 Bom. 515) this view was reiterated and it was held that after the expiry of the limitation period the tenant should be deemed to have acquired right to hold the land as against the plaintiff as a tenant only. The same view was taken in the Madras decision it Seshamma Shettati and others v. Chickaya Hegade and others (I L R 25 Mad. 507). Now, in this case what can the defendants be said to have acquired by prescriptive right? According to these decisions the defendants can be said to have acquired prescriptive right only as a tenant, and since the defendants never set up any title to tenancy for fixed duration or to permanent tenancy, they can be deemed, at the most, to have acquired title only as a tenant from month to month. But nowhere in the written statement the defendants have taken the plea that by efflux of time, notwithstanding the various decisions against them, they have now become tenants from month to month. On the other hand, their plea is only this, that the suit is barred by limitation. No specific stand has been taken in the written statement that whatever may have been the legal position before, with the expiry of twelve years' period under Article 144 of the Limitation Act, the defendants should be deemed to‑ have become monthly tenants. However, in my opinion this point is not necessary for the decision of the suit and I should not be understood to subscribe to this view or any contrary view as, I would venture to say, all these decisions would bear reconsideration in view of the language of Article 144 itself. I have dealt with this point only to show that the effect of the Bombay decision in Maidin Saiba v. Nagapa, relied upon by Mr. U. Niamat Moulvi is not that the plaintiff should be treated as having lost all rights to the said premises, but that according to the subsequent decisions of the same High Court and of the Madras High Court, the result of such a situation is only this, that a person setting up title under a pretended tenancy becomes a tenant after the expiry of the period prescribed by Article 144 of the Limitation Act. Be that as it may, I am of the view that the case can b." decided with reference to another point, that is, the one which arises under section 14 of the Limitation Act. It is the admitted position that an applicant under section 18 of the Karachi Small Causes Court Act was filed against the defendants, and ultimately these and other proceedings concluded by the judgment in Revision Applications Nos. 8 and 9 of 1962 given on 9th May 1966. If the defendants are trespassers, and they have been held to be trespassers then the time taken in the proceedings which com menced from the institution of the application under section 18 of the Karachi Small Causes Court Act and terminated in the judgment of the Small Causes Court given on 25‑11‑1966 rejecting the application for execution of the ejectment decree obtained by Muhammad Shafiq should be excluded in computing the period of limitation. In this connection, Mr. Wajibuddin Ahmed relied on a Division Bench decision of Kaikaus and Munshi, JJ. in Dada Limited v. Pakistan (P L D 1959 Kar. 264), in which it was held that section 14 of the Limitation Act was applicable in a case where the suit was barred under section 226 of the Government of India Act, 1935 on score of want of jurisdiction. The same view was taken in the Lahore decision in Haji Ghulam Muhammad and another v. Ali Siraj (P L D 1964 Lah. 15), in which it was held that the words "other cause of like nature" would apply to cases where a Court has no jurisdiction in a matter, but all the same entertains it and decides it on merits, so that in such a case time taken in such proceedings is to be excluded in the computation of the limitation period for filing a suit. In the instant case, the application for ejectment filed by the plaintiff or her predecessor‑in‑interest under section 18 of the Karachi Small Causes Courts Act was in fact entertained by that Court and was decided on merits in favour of the plaintiff's predecessor‑in‑interest and the proceedings so commenced ended only on 25‑11‑1966. A different view has been taken in some decisions to the effect that the rule in section 14 of the Limitation Act is not applicable where there is total want of jurisdiction "ab initio", but applies to cases where want of jurisdiction is discovered subsequent to the institution of the proceedings. In this respect my view is that the institution of the application for ejectment under section 18 of the Karachi Small Causes Courts Act could not be said to be without total jurisdiction `ab initio'. This section applies to cases where a person has possession of any immovable property as tenant, or by permission of another person or of some person through whom such other person claims. The litigation between the parties shows that Abbas Bhai had the permission of Ratilal to occupy the said premises. Ghulam Ali had permission from Abbas Bhai and Barkat Ali had permission from Ghulam Ali. This permission is to be implied from the defen dants' stand that tenancy rights had continued to be validly trans ferred from time to time and ultimately to Barkat Ali, the father of defendant No. 1 and husband of defendant No.

2. Therefore, even within the meaning of section 18 of the Karachi Small Causes Courts Act it can be said that Barkat Ali and after him the first two defendants were in possession with permission, though this permission was not given by the landlord due to absence of jural relationship between the landlord and Barkat Ali, and the latter and the first and second defendants could therefore be treated as trespassers. But. still, they were in possession of the said premises with the permission of Ghulam Ali, who had the permission of Abbas Bhai and who, in turn, had the permission of Ratilal. The present, therefore, is not a case where the view may be taken that there was total want of jurisdiction 'ab initio' when the landlord filed application under section 18 for ejectment of the defendants. The want of jurisdiction if any, was discovered only when the execution application was dismissed on 25‑11‑1966 by the Judge of the Karachi Small Causes Court. Therefore, whether there was `ab initio' absence of jurisdiction, or want of jurisdiction was discovered subsequently, the whole period up to 25‑11‑1966 has to be excluded from computing the time for filing of the present suit and if so done, then this suit would be within time as the plaint here was presented on 28‑4‑1967. Accordingly, I would decide the issue of limitation against the defendants.

6. The next question is with regard to issue No. 1 (b) and Issue No. 4, relating to relief. In view of the above findings, the plaintiff is entitled to a decree for ejectment. As regards her claim for mesne profits or compensation for use and occupation, I feel that she has put this claim at a vary high rate. She has claimed compensation at the rate of Rs. 100.00 per month. But in Suits Nos. 232 of 1955, 1250 of 1956 and 95 of 1958, decided by the Court of II Civil Judge, Karachi the rate of mesne profits was Rs. 40.81 per month. I think this is the appropriate rate at which compensation can be given to the plaintiff. Accordingly, the plaintiff's suit is decreed for ejectment and for compensation for use and occupation of the said premises against the defendants at the rate of Rs. 40.81 per month from 5.2‑1967 and with costs.

7. In my view this case is not of a complicated nature, so as to warrant an enquiry into mesne profits or compensation for use and occupation of the said premises from the date of the institu tion of the suit until delivery of possession to the decree‑holder. As held in Vella Veeran Chetti v. V. Veeran Chetti and another (A I R 1938 Mad. 727), Ganeshi Lal Sharma v. Sm. Snehalata Dassi (A I R 1947 Cal. 68) and P. R. Chikka Subha Rao and others v. Nama Ramaswami Setty and others (A I R 1954 Mys. 42), in such cases this enquiry can be conveniently dispensed with and a final decree can be passed even at this stage. Accord ingly, it is directed that the defendants shall pay compensation and/or mesne profits at the above rate to the plaintiff from 5‑2‑1967 up to the date of the delivery of possession of the said premises to the plaintiff, with interest at 6 per cent. per annum from the date of the decree until payment. K. B. A. Suit decreed.