P L D 1952 Peshawar 50 (PLP)

MUHAMMAD SHAFI, J.‑Muhammad Majid (Mujib) Khan, Zulfiqar Khan, Amanullan Khan and Mazullah Khan, sons of Muhammad Ismail Khan. Bangesh Izzatkhel, are the original owners of a serai and a garage, situated outside Tahsil Gate of Kohat City, which form the subject‑matter of this revision petition. By a registered‑lease‑deed dated 30th September 1945, Muhammad Majid Khan acting on his own behalf and also on behalf of his brothers leased out this pro perty as well as some other property to Abdul Ghaffar Khan, son of Abdus Sattar Khan, at Rs. 145 per mensem, for eight years. The lease period was to commence from 1st October 1945. On 19tn January 1945, Gulla Jan took the property in dispute on sub‑lease from Abdul Ghaffar Khan for a period starting from 1st January 1946 and ending on 15th December 1946 at Rs. 21 per mensem. It was stipulated in this deed that after the expiry of the period mentioned therein, Gulla Jan will be liable to surrender the possession of the property to Abdul Ghaffar Khan. On 11th July 1949, Abdul Ghaffar Khan instituted a suit against Gulla Jan for the recovery of the rent of the property amounting to Rs. 672, from 1st November 1946 to 30th June 1949. On 3rd January 1950, he brought another suit for the recovery of Rs. 126 as the rent of the same property from 1st July 1949 to 31st December 1949. In both the plaints he based his claim on the deed which Gulla Jan had executed in his favour. In both these suits Gulla Jan inter alia raised an objection that his tenancy under Abdul Ghaffar Khan was determined, that he had taken a fresh lease from Mazullah Khan one of the original owners and that he was, therefore, no more liable to pay the rent of this property to Abdul Ghaffar Khan. The learned trial Court in the suit for the recovery of Rs. 672 framed the following issues :‑

1. Is the defendant a tenant of the plaintiff ?

2. Are Mujib Khan and Mazullah etc. descendants of Ismail Khan, owners of the property in question, necessary parties to the suit ?

3. Whether the defendant has paid rent to the plaintiff from 1st January 1946 to 15th December, 1946 ?

4. Whether the defendant has obtained the property in question on rent from the owner Mazullah Khan directly, and, therefore, he is not a tenant of the plaintiff ?

5. Is the defendant estopped from claiming that he is not a tenant of the plaintiff ?

6. Relief. In the suit for the recovery of Rs. 126, the following issues were framed :‑

1. Whether the suit is res judicata ?

2. Whether the plaintiff has got a cause of action against the defendant ?

3. Are Mujib Khan and Mazullah Khan, etc., descendants of Ismail Khan owners of the property in question necessary parties to the suit ?

4. Whether defendant is a tenant of the plaintiff for the period in dispute ; if so on what rent ?

5. Whether defendant has obtained the property in question on rent from the owner Mazullah Khan directly, and, therefore, he is not a tenant of the plaintiff.

6. Relief. The learned trial Court found all these issues in favour of the plaintiff, and granted him a decree in both the suits as prayed for. There were two separate appeals against the above decrees, which were accepted by the learned Additional Judge, by his order dated 19th April 1951. He held that the tenancy was determined on 6th June 1947, when the plaintiff gave notice to the defendant to quit the property because the period of sub lease fixed in the deed had already expired. He consequently amended the trial Court's decree in one case, and granted the plaintiff a decree for Rs. 151‑3 for rent starting from 1st November 1946 to 6th June, 1946. He dismissed the suit for the recovery of Rs.

126. He left the parties to bear their own costs throughout, as according to him the point involved in both the cases was a legal one. Abdul Ghaffar Khan has filed two revision petitions against the above orders. The admitted facts of the case are that the property was leased out in favour of Abdul Ghaffar Khan, and that lease is still subsisting, and will expire sometime in 1953. On. 19th January, 1946, Abdul Ghaffar Khan sublet this property in favour of Gulla Jan. A deed to that effect was executed, and Gulla Jan was put in possession of the property. On 6th June, Abdul Ghaffar Khan gave a notice to Gulla Jan to surrender the possession of the property to him. Gulla Jan, however, instead of delivering the possession of the property to Abdul Ghaffar Khan managed to get a new lease of this property from one of the real owners, namely, Mazullah Khan. Hip plea, thus, is that he having taken the property from the person, who held the paramount title, was not liable to pay the rent to Abdul Ghaffar Khan. No doubt Abdul Ghaffar Khan could give a notice of ejectment to Gulla Jan, and it is also correct that the tenancy which was created by the deed dated 19th January 1946, came to an end, but under section 116 of the Transfer of Property Act, the principles of which apply to this Province, Gulla Jan shall be presumed to continue to be the tenant of Abdul Ghaffar Khan, and the original lease shall be taken to have been renewed as to all its terms except the duration of the lease. So far as the duration of the lease is concerned, the tenancy shall be considered to be from month to month or in other words on sufferance. I know of no law under which after the expiry of the lease, the lease of the tenant who con tinues to be in possession of the property without surrendering its possession to the person from whom he took the property on lease ceases to be a tenant. In fact the law, as has already been observed, is quite the reverse. The learned counsel appearing for the respondent has quoted Jogendra Lal Sarkar v. Mahesh Chandra Sadhu and others, reported in A I R 1922 Cal. p. 22. for the proposition that eviction by paramount title is a good defence for non -liability of rent. With this proposition of law I have no quarrel, but then in the case before me neither Mazullah Khan nor anybody else who has the paramount title has evicted Gulla Jan, nor has he taken any step against him for getting him out of the property. Gulla Jan until he surrenders the possession of the property to Abdul Ghaffar Khan has got no right in law to deny Abdul Ghaffar Khan's title to the property or refuse to pay him the rent. So long as he does not surrender the possession of the property to Abdul Ghaffar Khan, he shall be considered to be a tenant of this property under him. I am consequently of the opinion that the judgment of the learned lower appellate Court in both the cases is erroneous and completely against law. I, therefore, accept both the revision petitions, set aside the judgments and decrees of the learned lower appellate Court and restore those of the trial Court in both the cases with costs throughout. Orders announced. A. H. Petition accepted.