P L D 1956 (W (PLP)

Finding My finding on the above issues is as follows :‑ Issue No. 1.‑The plaintiff had agreed to sell his leasehold .rights along with the construction standing thereon. Issue No. 2.‑In the negative. Issue No. 3.‑In view of my finding on issues No. 1 and 2 above, it is not necessary to give any finding on this issue. Issue No. 4.‑The plaintiff is entitled to the damages he has claimed. Issue No. 5.‑In the affirmative. Issue No. 6.‑As under :‑ Reasons:

Issues No. 1 and 2.‑1 would take up issues No. 1 and 2 together as they are interlinked. So far as these two issues are concerned, the plaintiff has examined himself and filed cer tain documents through Mr. Raza Mirza, Advocate, and Muhammad Iqbal, a clerk of the Municipal Corporation. The plaintiff has stated before me that the plot of land in question belonged to one Haji Ahmad who was his partner, and that the construction in question had been put up by Haji Ahmad, but it was the plaintiff who had paid for the construction. The plaintiff admitted that the land on which the structure in question stood belonged to the Municipal Corporation, and that he had invested about Rs. 70,000 in raising the construc tion in dispute. The plaintiff stated that on 2nd or 3rd September 1948 his partnership with Haji Ahmad was dissolved, and as a result of the dissolution of the partnership, the construction in ques tion came to his share. The plaintiff produced receipt Exh. 8/2 for the payment that he had made to the Municipal Corporation towards the assessment of the land in question. The plaintiff also produc ed Exh. 8/4, being a notice by the Municipal Corporation intimating to the plaintiff that Rs. 250 had been fixed as assessment. The plaintiff further stated in his evidence, that the defendant took over the possession of the premises in question on agreeing to pay Rs. 400 per month and that he has not paid anything towards the use and occupation of the premises in question, to the plaintiff, and that he had claimed Rs. 400 per month as damages for the use and occupation of the premises in. question. The plaintiff maintained in his statement that he had agreed to sell the plot of land in question along with the construction standing thereon on the clear understanding that he never had the lease of the land in question from the municipal Corporation, and that he had shown all the docu ments relating to the property in question to the defendant at the time of the agreement. Mr. Syed Raza Mirza, who has been examined by the plaintiff has stated before me that he had prepared the deed of the agreement between the parties for the sale of the construction in question. He further stated that he drafted the agreement as the parties directed him to do. The last witness of the plaintiff is Muhammad Iqbal, a clerk from the Municipal Corporation. He has produced certain registers wherein the name of the plaintiff is written as owner of the plot in question. This witness is employed in the Municipal Corporation in the department of the Chief Assessor and Collector. He has, however, admitted that his department is not concerned with the enquiry of title as regards the plot about which the assessment may be made by the department. He has further stated that his department is not concerned whether the constructions about which assessment is made are authorised or unauthorised. The learned advocates for the parties have mainly relied on the agreement dated 12th January 1949 between the parties relating to the sale of the premises in question. The learned advocates have relied on different portions of the agreement which suited their contentions. Mr. Ihsan‑ul‑Haq, the learned advocate for the plaintiff has laid stress on the dis closure of the fact about the payment of the dues to the Municipal Corporation and on the fact that the superstructure was also mentioned to be conveyed to the defendant. The contention of the learned advocate for the plaintiff was that his client never gave out to the defendant that he had any title w the land, which he would transfer to the defendant. There is no doubt that what was sought to be transferred has to be determined from a perusal of the agreement between the parties themselves. In this connection, the following portion of the agreement dated 12th January 1949, is noteworthy :‑ " I, Sardar Gul Muhammad Khan . . . . am sole and absolute owner of Godown K.‑14, Mira Naka Shershah Road Karachi, built by me and at my expense over a plot of land belonging to Municipal Corporation, Karachi bear ing Survey Sheet No. K‑14, Lyari Quarters Road, Karachi and which plot of land has been taken on lease by me from the Municipal Corporation Karachi after paying a sum of Rs, 688‑9‑0 for one year commencing from 25th September 1948 till 24th September 1949 vide Receipt No. 3096 dated 25th September 1948 . . . . . "I have contracted and agreed to sell the above mention ed Godown (superstructure) together with my leasehold rights from the Municipal Corporation Karachi at the agreed amount, . . . . and I, Sardar Gul Muhammad Khan agree and stipulate to transfer all proprietary and leasehold rights regarding this godown (superstructure) and leasehold rights in the name of Kh. Shams‑ud‑Din." From a perusal of the above it is clear that the plaintiff had agreed to convey leasehold rights, which admittedly he did not have. It is further clear from a perusal of the agreement dated 12th January 1949 between the parties that the defen dant had never agreed to purchase any defective title from the plaintiff, and that the plaintiff had agreed to convey a perfect title to the defendant on completion of the sale deed. In this connection, sub‑clause (2) of section 55 of the Transfer of Property Act is relevant ; it reads as under :‑ " The seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same. It is not necessary to reproduce the proviso to this sub -clause for the purposes of this case. The plaintiff had, to my mind agreed to convey to the defendant a perfect title to the construction in question. In this connection, reliance was placed by Mr. Bashir, the learned advocate who held brief for Mr. Qadeeruddin for the defendant on Tulsidas Ramchand and another v. Pritbai and others (A I R 1943 Sind 92) and Associated Hotels of India Ltd., v. Jodha Mal Kothalia (P L D 1954 F C 35). In these two cases it has been laid down that the interest that the seller agreed to convey must subsist till the day when the property had been conveyed. It is not sufficient for the seller to state that on the date that the agreement was entered into, he had a perfect title but during the course of the agreement a cloud was cast upon his title. On a consideration of the evidence led by the parties, and mainly the agreement dated 12th January 1949, I am clearly of the opinion that the plaintiff had agreed to convey lease hold rights of the plot on which the construction stood and a perfect title to the construction in question. The plaintiff, admittedly, did not have any leasehold rights to transfer of the plot in question. The plaintiff, therefore, is not entitled to the relief as regards the specific performance of the contract. In this connection, section 25 of the Specific Relief. Act may also be mentioned. According to this provision of law, a person who knew that he did not have a good title to the property sought to be conveyed, is not entitled to specific performance of the contract. I would, therefore, hold in respect of issue No. 1 that the plaintiff had agreed to sell leasehold rights of the plot in question along with the construction standing thereon, and in respect of issue No. 2, that the plaintiff did not have a marketable title. Issue No. 3.‑In view of my finding on issue No. 2 that the plaintiff did not have a marketable title to sell, the question as to who committed the breach of the contract is not material. Issues No. 4 and 5.‑These two issues are inter‑related and may be disposed of together. Mr. Bashir, the learned advocate for the defendant contended that inasmuch as the plaintiff din not have a perfect title to the construction in question, he was not entitled to anything by way of damages. He contended that, on the statement of the plaintiff himself, it would appear that the construction in question was unauthorized, and the same was likely to be demolished by the Municipal Corporation. To my mind, these facts have no relevancy so far as the question of payment of compensation for use and occupation of the construction in question is concerned. It has not been contended by the defendant that the superstructure in the possession of the defendant does not belong to the plaintiff. In fact, it is admitted that the same belongs to the plaintiff. The question is, whether the plaintiff for all intents and purposes being a trespasser in respect of the land on which the construction stands, so far as the Municipal Corporation was concerned can claim compensation for the use and occupation of the construction which admittedly belongs to him. To my mind, the answer to the question is very simple. It does not lie in the mouth of the defendant to challenge the right of the plaintiff to claim compensation for the use and occupation of the structure that belongs to him. The question about the title to the land is between the plaintiff and the Municipal Corporation. The Municipal Corporation may, on certain compensation being paid by the plaintiff, legalize the construction of the disputed building in favour of the plaintiff, and also lease out the land in question to the plaintiff. In fact, it would appear from a letter, Exh. 11/1 that the Land Manager of the Municipal Corporation had suggested to the Municipal Corporation that the occupation of the defendant may be legalized on certain terms. This question, however, is not for me to go into so far as the present issue I concerned. In view of my finding that the plaintiff is the owner of the structure standing on the plot in question, he is entitled to claim compensation for use and occupation of the same by anyone who may be in possession of the same. The defendant admittedly had taken over the construction in question from the plaintiff on 14th January 1949, and is liable to pay compensation from that date onwards. So far as the question of ejectment of the defendant from the premises in question is concerned, Mr. Bashir for the defendant has again urged that the plaintiff being a tres passer cannot sue for ejectment of the defendant. No authority has been cited by him in support of his contention. It has not been denied before me that the plaintiff had possessory title to the construction in question. The defen dant, on the other hand, does not claim any title or any legal right to remain in possession of the construction in question. I would hold that the plaintiff is entitled to a decree for ejectment. The last question before me is what should be the damages for the use and occupation of the premises in question. It is noteworthy that the defendant has not stated in his written statement that the damages claimed by the plaintiff are excessive. It is, however, admitted by the defendant that he had agreed to pay Rs. 400 as rent of the premises in question to the plaintiff. I would, hold, under these circumstances that Rs. 400 per month would be a reason able compensation for the use and occupation of the premises in question. Issue No. 6.‑I would, for the reasons given above, decree the suit for damages for use and occupation of the premises in question at the rate of Rs. 400 per month as prayed for, and also decree the suit for ejectment of the defendant from the premises in question. I have considered the question of costs, and in view of the fact that the main relief regarding the specific performance of the suit has failed, I would order the parties to bear their own costs. A.H. Suit partly decreed.