2022 PLP 709 (MLD)

AAMER FAROOQ J.

Syed Ikram Mustafa (the appellant) obtained on lease upper portion of House No.252-D, Street No.31, Sector I-8/2, Islamabad (the property) from the owner of the property namely Mian Ali Muhammad. The lease agreement was dated 13.04.2012 and was for a period of three years with rent of Rs.30,000/- per month. The appellant paid sum of Rs.90,000/- as three months advance rent as well as security at the time of execution of the agreement. During subsistence of lease, Mian Ali Muhammad died on 08.10.2012 and after his demise, the property devolved upon Mian Wali Muhammad (respondent) and Naziran Bibi (sister of the respondent and Mian Ali Muhammad). In terms of compromise arrived at between respondent and Naziran Bibi through decree dated 12.02.2013 passed by Civil Judge, Tehsil Depalpur, District Okara, respondent became entitled to the property exclusively. The respondent filed eviction application against the appellant and as a result whereof, the appellant, vacated the property. Respondent then filed suit in the sum of Rs.24,60,000/- as arrears of rent from 15.08.2012 to 14.04.2014 @ Rs.30,000/- per month and mesne profit @ Rs.60,000/- per month from 15.04.2014 to 26.11.2016 (the date, on which, possession was delivered to respondent by the appellant). The suit was contested by the appellant and out of divergent pleadings, issues were framed, where-after, parties led their evidence. The attorney of the respondent appeared as PW-1 and also tendered in evidence the record of proceedings in the eviction application filed by the respondent. The appellant also entered into witness box as DW-1 and placed on file the record of litigation. Learned trial court decreed the suit filed by the respondent in the sum of Rs.24,60,000/- vide judgment and decree 30.09.2020. Feeling aggrieved, the appellant has filed the instant appeal.

2. Learned counsel for the appellant inter alia contended that after demise of Mian Ali Muhammad, appellant continued the possession of the property on the insistence of Naziran Bibi, hence he became her tenant. It was contended that rent was being paid to Naziran Bibi. It was further contended that there is no justification or basis for claiming sum of Rs.60,000/- per month as mesne profit as double the amount of rent. Learned counsel added that suit was filed through attorney by the respondent, who was not familiar with the facts and circumstances and in cross-examination, he conceded the same.

3. Mian Abdur Razzaq, Senior Advocate Supreme Court, appearing for the respondent, inter alia contended that where landlord alleges that rent has not been paid, the burden shifts on the tenant to submit that same stands paid accordingly, which the appellant, failed to do so. It was contended that it is also trite law that where tenant holds over the property after expiry of lease, he is liable to pay the double the amount as mesne profit. Reliance was placed on cases reported as 'Malik Naveed Ahmed v. Mrs. Nasreen Hameed' (2005 SCMR 357), 'M/s Habib Bank Limited, Karachi v. Mst. Sohra Begum and 8 others' (1995 CLC 319), 'Iqbal Muhammad Khan v. Abdul Aziz' (2015 CLC 1667), 'Dawood Hercules Chemicals Limited v. Water and Power Development Authority' (1991 CLC Note 269), 'Muhammad Siddique and another v. Muhammad Riaz and another' (2013 YLR 1200), 'Suleman v. Karim' (PLD 1986 Karachi 344), 'Allah Din v. Habib' (PLD 1982 SC 465), 'Mazhar Saeed and another v. ADJ and 11 others' (2011 YLR 3089), 'Mst. Juma v. Umar Akhtar and others' (2006 MLD 47) and 'Haji Muhammad Hanif v. Muhammad Ibrahim and others' (2005 MLD 1).

4. Arguments advanced by learned counsel for the parties have been heard and the documents, placed on record, examined with their able assistance.

5. The facts, leading to filing of instant appeal, have been mentioned hereinabove therefore need not be reiterated.

6. It is an admitted position that the appellant was the tenant of Mian Ali Muhammad who died on 08.10.2012 during subsistence of lease arrangement with respect to the property. There is also no cavil that respondent and Naziran Bibi were the sole heirs of the property, however, in terms of compromise between the referred persons recorded through decree dated 12.02.2013, respondent became the exclusive owner of the same. The said decree still holds the field and on the basis thereof, respondent filed eviction application against the appellant, in which, the appellant handed over possession of the property to the respondent.

7. The ownership of the respondent is not in doubt inasmuch as under the Islamic Law of Inheritance, when a person dies, his property devolves upon legal heirs by operation of law and no final order or judgment is required for the same? Reliance is placed on cases reported as 'Haji Muhammad Hanif v. Muhammad Ibrahim and others' (2005 MLD 1) and 'Mst. Juma v. Umar Akhtar and others' (2006 MLD 47) After demise of the landlord, it is the entitlement of the legal heirs to receive the rent, as they become the landlord. Reliance is placed on case reported as 'Mazhar Saeed and another v. ADJ and 11 others' (2011 YLR 3089). However, if the landlord alleges non-payment of rent, burden is upon tenant to show that rent stands paid. Reliance is placed on cases reported as 'Muhammad Siddique and another v. Muhammad Riaz and another' (2013 YLR 1200) and 'Allah Din v. Habib' (PLD 1982 SC 465). In light of above principles of law, since the respondent became landlord after demise of Mian Ali Muhammad and compromise with Naziran Bibi, he was entitled to receive rent.

8. The respondent claims non-payment of rent till expiry of lease till 14.04.2014, however, the appellant, who had the onus to discharge the burden of proof by showing that he had been furnishing rent either to the respondent or Mst. Naziran Bibi, failed to do so, as no evidence was led to the effect and only a copy of Money Order in the sum of Rs.5000/-was produced in the court, which was marked as Mark-A. It is settled proposition that mark has no evidentiary value, as the concept is not provided in Qanun-e-Shahadat Order, 1984 or any other law.

9. In so far as the claim of respondent qua mesne profit from April, 2014 till November, 2016 (till the handing over of the property) is concerned, it is undisputed principle that once the lease expires, the mesne profit can be claimed as double the amount of rent. Reliance is placed on case reported as 'Iqbal Muhammad Khan v. Abdul Aziz' (2015 CLC 1667), wherein the Division Bench of this Court, by placing reliance on earlier judgment of Hon'ble Supreme Court of Pakistan in case reported as 'Malik Naveed Ahmed v. Mrs. Nasreen Hameed' (2005 SCMR 357), affirmed the referred principle. Similar observations were made by the Hon'ble Division Bench of Lahore High Court in case reported as 'Dawood Hercules Chemicals Limited v. Water and Power Development Authority' (1991 CLC Note 269). On the touchstone of the referred principle, respondent claimed mesne profit as noted above and had the right to do so being the owner of the property. The appellant could not justify any factual or legal impediment to the claim of respondent.

10. The impugned judgment and decree dated 30.09.2020, when examined in light of above facts and law, does not suffer from any error warranting interference hence is affirmed.

11. For the above reasons, instant appeal is without merit and is accordingly dismissed. ZH/9/Isl Appeal dismissed.