1986 PLP 2862 (CLC)

(2) What should the order be? The learned Rent Controller came to the conclusion from the city survey record that the demised premises were evacuee property and hence, he held that there was no relationship of landlord and tenant between the parties and as such dismissed the application. It is contended by Mr. Fakhree learned counsel for the appellant that the respondents, once having admitted the appellant as their landlord and once having paid rent to them, are estopped from denying his title as landlord. In this respect he relied upon section 116 of the Evidence Act. Section 116 of the Evidence Act reads as under:‑‑ "116.‑‑No tenant of immovable f property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property, and no person who came upon any immovable property by the licence of the person in possession, therefore, shall be permitted to deny that such person had a title to such possession at the time when such licence was given." The learned Rent Controller has based his finding relying upon a Single Bench decision of this Court in case of Risaldar Azimuddin v. Dilshad Hussain P L D 1973 Kar.

284. In the reported case the question of applicability of section 116 of the Evidence Act was considered and it was held by Single Judge of this Court:‑‑ "Ordinarily, by reason of the rule laid down in section 116 of the Evidence Act, a tenant cannot deny the title of his landlord. But the legal position becomes very different when a third person, who is the real owner, intervenes, and in that case, the relationship of landlord and tenant comes to an end if the tenant is evicted by this real owner. The eviction need not be actual, but may be only symbolic. In other words, if there is notice to quit from the real owner to the tenant in occupation of the disputed property, or if there is a threat of eviction from the real owner to such tenant, then it would be a case of symbolic eviction of the tenant by the real owner, which would bring to an end the relationship of landlord and tenant which is protected by section 116 of the Evidence Act." In the reported case the tenant was put in possession by the landlord. However, the case of the present respondents is different. They were not put in possession of the premises by the appellant but they were tenants of previous landlady Shrimati Sadori. However, they accepted the appellant as landlord by virtue of the compromise, dated 1‑5‑1982 in rent application 4 of 1980. The question as to whether the person, who was not put in possession of the premises by the landlord is estopped from challenging his title is discussed at length in "Principles and Digest of law of Evidence" by M. Monir, 1974 Pak. Edition. At page 1335 the learned Author has formulated the rules that could be deduced from authorities on the subject. Rule (ii) which is relevant in the instant case is reproduced as under:‑‑ "(ii) Where a tenant was not let into possession by the person seeking to raise the estoppel, but has attorned to him, e.g. by executing a lease, paying rent, or otherwise acknowledging his tenancy, the tenant may show that the attornment is vitiated by any such circumstances as vitiates a contract e.g. fraud, misrepresentation, coercion, mistake, etc. On proof of any such'' fact, the contract of tenancy is avoided, and there being no valid relationship of landlord and tenant, there is no estoppel to plead want of title in the person to whom attornment was made by executing the lease, paying rent, or in any other manner. Under this rule, apart from actual fraud, misrepresentation, or coercion, the tenant may show that the rent was paid or attornment made by him in ignorance, or incomplete knowledge of circumstances of the landlord's title, inasmuch as such a case is really one of a mistake of fact which renders a contract void. When either through ignorance of title of the landlord or by fraud in the matter of execution of the Kabuliyat the tenant attorns to him, then the tenant is not estopped but can show that the landlord had no title either when the Kabuliyat was executed or attornment made by payment of rent." Thus, estoppel is not complete in certain cases as mentioned above when tenant may challenge title of landlord. In the instant case, the respondents viz. the tenants have challenged the title of the appellant on two grounds; (i) that the original seller Mst. Sadori had no right to sell the property as she had only life interest in the property as widow, and (ii) that the property in question is entered as evacuee property in the register of properties and notice was issued by the Deputy Settlement Commissioner for the payment of rent. The respondents had produced before the Rent Controller the extract from the property register card which is at page 89 of the R&P of the lower Court. This extract shows that the property was inherited by Sadori Bai by inheritance in 1945. The note, dated 29‑5‑1975 shows that Shrimati Sadori Bai had life interest only as per Custodian No. F‑4(544)/60, dated 12‑1‑1962. Then there is entry, dated 20‑9‑1979 to the effect that property was purchased by the appellant. The last entry is, dated 3‑2‑1980 which reads as under:‑‑ "3‑2‑1980. By re‑entered in evacuee owner's name Tulsidas son of Gumbomal as Shrimati Sadori Bai has died vide death certificate issued by the Public Health Department Serial No. 19, dated 23‑7‑1979. Decision of Additional Custodian (Judicial) E.P. Karachi, dated 24‑10‑1960 and confirmation of Custodian E.P. Karachi's order, dated 13‑1‑1962. D.S.C./Suk/80‑13, dated 9‑1‑1980." The respondents have also produced a letter of Deputy Settlement Commissioner, Sukkur, dated 20‑12‑1982. It is at page 85 and reads as under:‑‑ "To Mr. Gurmukhdas s/o Gobindmal r/o No. B‑1395, Dhak Road, Sukkur. Subject: In the matter of property C.S. No.B‑1395 Dhak Road, Sukkur. With reference your application, dated 13‑12‑1982, it is to inform you that the abovementioned property has already been declared` as an evacuee property and stands included in the list of available properties furnished to the Board of Revenue, Sind Hyderabad as well as Deputy Commissioner, Sukkur hence, you are hereby advised to apply to Deputy Commissioner, Sukkur for the said property. As regards the payment of rent due a demand notice was issued to your father the payment from 24‑7‑1979 to 31‑1‑1980 for amounting Rs.75 which has been paid, now you may deposit the arrears of rent from 1‑2‑1980, to 31‑12‑1982 amounting to Rs.390." The respondents have also produced a challan at page 87 in respect of payment of Rs.390 in the account of Chief Settlement Commissioner, Sind. The learned counsel for the appellant has relied on P L D 1978 Quetta 146 wherein. a Division Bench of that Court has held that the widow cannot alienate her life interest in such property except under legal necessity. Alienation by widow can be impeached only by reversioner and by State claiming by escheat in a civil Court. Property cannot automatically be escheated to State. He has also relied on 1983 C L C 2989 wherein a learned Single Judge of this Court has held that Settlement authorities had no jurisdiction to reopen closed matter in 1977 after the repeal of Settlement laws." However, the fact remains that in the property register the property has been transferred from the name of the appellant to the name of the Settlement authorities. The record also shows that Settlement authorities did demand rent from the respondents. The position of the respondents in such a case is unenviable. On the one hand. they are threatened by the appellant with eviction for non‑payment of rent claiming that they were estopped from challenging his title under section 116 of the Evidence Act. On the other hand a department of Government viz. Settlement Department through its officer, Deputy Settlement Commissioner, demanded rent from the respondents claiming to be the owners of the property. The respondents feeling that the coercive powers of the Government department were stronger and more effective than that of the private individual, chose to pay rent to the Settlement h authorities. The appellant, instead of trying to get his"' title cleared and settled through the civil Court, raised these legal pleas as to the right of the widow to sell the property and the illegality of the order declaring the property to be evacuee property after the repeal of Settlement laws, before the learned Rent Controller. Neither the Rent Controller nor this Court in exercise of its appellate jurisdiction under the Sind Rented Premises Ordinance, is competent to decide the question of title which only a competent civil Court can do. The question has become more complicated as the entries in the two documents mentioned above indicate that property %as treated as evacuee in 1960 and that only life interest was conferred upon deceased Mst. Sadori Bai by the Custodian. It may also be pointed that title of the appellant is not only challenged by the respondents but also apparently challenged by the Settlement authorities, who were not party to the proceedings before the learned Rent Controller. As such this question could also not have been settled in rent proceedings in which the Government or Settlement) authorities were not made a party. We have already seen that the respondents, who were not put in possession by the appellant, could challenge his title in certain circumstances. We have also seen that the property register shows that property has been transferred from the name of the appellant and entered in the name of Settlement authorities. We have also seen. that on demand the respondents are paying rent to the Settlement authorities from November, 1982. Under the circumstances the finding of the learned Rent Controller that presently there was no relationship of landlord and tenant between the parties, has come to an end, does not appear to be incorrect. The respondents could not be deemed to have committed any wilful default in payment of rent in such circumstances. The appeal is consequently dismissed but in the circumstances of the case the parties are ordered to bear their own costs. A . A . Appeal dismissed.