P L D 1969 Karachi 384 (PLP)

Right of, in immovable property‑Tenancy right can be transferred in accordance with law only and not by a remote reference to it in a partnership deed‑Tenancy rights governed by Rent Control statutes--‑Not transferable without consent of landlord. Tenancy being immovable property needs to be transferred in accordance with law, and not merely by mentioning it and much less by an indirect and remote reference to it in a partnership deed. Moreover, tenancy rights now‑a‑days are, and in the year when the partnership deed in the case was executed were, governed by special laws known as Rent Control statutes, and were not transferable, without the consent of the landlord. E. A. Fazeel for Applicant. These revision applications have been preferred to question the legality of the order of the learned District Judge, Karachi, dated the 15th of August 1968, by which he accepted two appeals which were preferred against an order of injunction made by the trial Court and confirmed by it on the 3rd of March 1967. One of the appeals (Civil Appeal No. 34/67) was preferred by Mst. Saira Bibi who was not a party to the proceedings before the trial Court, but had merely filed objections to the order of injunction which was issued by the trial Court.

2. Mr. Fazeel has criticized the order of the learned District Judge on three grounds Firstly. According to counsel, there was adequate evidence on the record to establish a prima facie case in favour of maintaining the order of injunction; Secondly.‑Civil Appeal No. 34 of 1967, which was preferred by Mst. Saira Bibi was not maintainable, because she had no locus standi to prefer it; and Thirdly.‑According to counsel, there are observations in the order of the learned District Judge, which may be prejudicial to the case of the petitioner at the time of the full trial of his suit.

3. The second and the third contentions can be disposed of briefly, because Mr. K. A. Ghani has pointed out that the other appeal, which was before, the learned District Judge, bearing No. 27 of 1967, was preferred by Haji Niazali, who was the defendant in the suit, arid serves the same purpose as the appeal of Mst. Saira Bibi to which objection has been taken by Mr. Fazeel, Mr. K. A. Ghani says that, in the circumstances of this case, he does not wish to insist that the appeal was maintain able. In view of this stand taken by Mr. K. A. Ghani, Civil Appeal No. 34 of 1967, filed by Mst. Saira Bibi is dismissed.

4. As to the so‑called prejudicial remarks, Mr. Fazeel has himself pointed out that the learned District Judge has mentioned in his order that he has been examining the case from the point of view of deciding it according to its prima facie value. Mr. K. A. Ghani, however, has no objection if a remark is added in this order that the judgment of the learned District Judge deals with the case as the evidence was at the time at which the appal was heard, and that the expressions used in the judgment were not intended to be final, but only prima facie. I, therefore, do so.

5. The main contention of Mr. Fazeel is that the evidence already brought on the record to prove that tenancy of the premises was the property of the partnership, establishes a prima facie case in favour of this proposition. The evidence which supports this point of view of counsel, according to him, consists of the following documents (1) The sale‑deed by which Haji Tahir Muhammad Noorani transferred Noorani Optical Mart (industries) as its sole owner to Haji Niazali dated the 7th of February 1966. (2) The partnership deed by which the petitioner and Haji Niazali became partners of that business, vide the partnership deed dated the 1st of March 1966, and (3) The affidavit of the arbitrator who, according to counsel, was entrusted with the work of examining the disputes between the parties and deciding them by an Award.

6. In order to dispose of the above contentions it is necessary to state the relevant `facts. 7 hey are that Noorani Optical Mart (Industries) as well as the premises in which the business was run, originally belonged to Haji Tahir Kuhammad Noorani. He sold the business to Haji Niazali on the 7th of February 1966, but he executed a sale‑deed on the same date. Within less than a month of it, Haji Niazali entered into a partnership with the petitioner, Gul Muhammad, and the partners executed a partnership deed on the 1st of March 1966. Within two weeks of the creation of the partnership, Haji Tahir Muhammad Noorani sold the premises in which the business was going on, on the 14th of March 1966, to the wife of Haji Niazali, namely Mst. Saira Bibi. Soon disputes arose between Gul Muhammad and Haji Niazali, and were referred to the sole arbitration of Sheikh Muhammad Osman on the 21st of September 1906. On the 14th of October 1966, he gave an award, and the parties settled their disputes in accordance with it by exchanging receipts. The receipt granted by Gul Muhammad petitioner is dated the 14th of October 1966. A few months after it, the building in which the business was going on, was demolished. According to Mr. Fazeel, it was demolished by Haji Niazali, but according to Mr. Ghani, counsel for Haji Niazali, it was demolished by Mst. Saira Bibi, who was its owner.

7. The demolition of the building and the attempt of Haji Niazali or of Mst. Saira Bibi to construct another building on the same plot of land created a gloomy prospect for the petitioner Gut Muhammad, because he felt that the demolition and recon struction would seal his fate in so far as his claim to tenancy, as a partner of the firm, was concerned. He, therefore, filed a suit being Suit No. 32 of 1957, against Haji Niazali, and applied for an order of injunction to restrain Haji Niazali from inter fering with the possession of the property of the firm, including the premises, and constructing a new building thereon. The required injunction was issued on the 16th of February 1967, and was confirmed on the 3rd of March 1967. It was this order of the trial Court against which the above‑mentioned two appeals. One by Haji Niazali and the other by Mst. Saira Bibi, were preferred.

8. The case of Gut Muhammad petitioner is that Haji Niazali has tenancy rights in the premises and that in exercise of them, the business of Noorani Optical Mart (Industries) was being run by Haji Niazali in the premises. Those rights, according to Gut Muhammad, became the property of the firm when Haji Niazali and Gut Muhammad became partners on the 1st of March 1966. On this basis Gut Muhammad petitioner contends that the firm and he, as its partner, could not be deprived of a share in the tenancy rights either by Haji Niazali or by Mst. Saira Bibi.

9. There are several subsidiary contentions, but it is not necessary to refer to them in this order, because the basic question for determination is whether there is evidence on the record to show that tenancy right, were transferred to the partnership which came into existence between Haji Niazali and Gut Muhammad on the 1st of March 1966. Mr. Fazeel's contention is that the three documents, to which reference has been made above, establish a prime facie case in favour of such transfer.

10. I have explained to counsel that the determination of the above‑mentioned question will necessarily involve expression of opinion regarding the value of the evidence, which is already on record. But counsel desires that the evidence be considered in these proceedings for deciding whether prima facie it establishes the contention of Gut Muhammad petitioner. In view of counsel's insistence, I proceed to examine the three pieces of evidence.

11. The first document is the sale‑deed dated the 7th of February 1966, by which `business of Optical Industries under the name and style of Messrs Noorani Optical Mart (Industries) (running) at Plot No. C/233, Sheet No. 15, near New Cloth Market, Hyderabad", was sold by Haji Tahir Muhammad Noorani to Haji Niazali. The subject‑matter of the sale is detailed in the Paragraph No. 1 of the document as follows: "

1. That the word `Film' hereinbefore and after used in this agreement means M/s. Noorani Optical Mart (Industries) situated at Plot No. C/233, near Cloth Market, Hyderebad including (i) the good will of the said firm. (ii) two Japanese‑made machines. (iii) local machines. (iv) raw materials and finished goods lying on said plot. (v) furniture and other equipments belonging to the firm. (vi) moulds, other fittings and fixtures. (vii) The firm does not include the plot bearing City Survey No. C/233, for which a separate agreement is executed to‑day." According to Mr. Fazeel, the reference to the plot of land on which the building in which the business was running including the references to goodwill to plot of land in items No. 1 and (i) and (vii), show that the tenancy rights were transferred along with the running business. In addition to this, counsel has also referred to the following sub‑paragraph of paragraph 2 of the sale‑deed in support of his contention: "(iv) That the buyer has been allowed by the seller to enter into the said plot and occupy the same after handing over the machines, fixtures and fittings etc. more and fully described above to his by the seller to‑day physically of which now he (Buyer) is full owner having all the rights of the seller."

12. To my mind, the above references cannot amount to transfer of tenancy rights by Haji Tahir Muhammad Noorani. There could be no question of the transfer of tenancy, because the subject‑matter of the Sale of Haji Tahir Muhammad Noorani was his running business and tenancy rights though utilised to the advantage of the business, were neither its part nor were they mentioned as its part. The case of the petitioner Gut Muhammad is not that tenancy was created by Haji Tahir Muhammad Noorani in favour of Haji Niazali after the sale of the running business vide the sale‑deed dated the 7th of February 1966.

13. Mr. Fazeel took the stand that partnership was created between the transferee of the running business, Haji Niazali and Gut Muhammad, petitioner, vide the partnership deed dated the 1st of March 1966, and that tenancy rights were transferred to the firm by virtue of the following clause in the partnership deed: "

1. The Industrial concern known as Noorani Optical Mart. Domenwa Road, Hyderabad, purchased by virtue of sale‑deed dated 7th February 1966, shall now be owned by partnership concern, and the business and factory shall be carried on at Demenwa Road, Hyderabad, under the existing name and style known as Noorani Optical Mart." Counsel has emphasised the words "by virtue of sale‑deed dated the 7th of February 1966" and contended that since tenancy rights were purchased by that sale‑deed, a reference to that document in the above quoted clause of the partnership deed amounted to transfer of those tenancy rights to the firm. The difficulty in the way of counsel in this respect is that tenancy being immovable property needs to be transferred in accordance with law, and not merely by mentioning it and much less by an indirect and remote reference to it A in a partnership deed. Moreover, tenancy rights now adays are, and in the year when the partnership deed was executed were, governed by special laws known as Rent Control statutes, and were not transferable, without the consent of the landlord. I am, therefore, unable to see any possibility of even a prima facie case being established with the help of the above‑quoted clause. '

14. The third document, namely the undated affidavit of the arbitrator, which was produced before the learned District Judge during the hearing of the appeal, contains the following state ment on which counsel relies "

2. That Haji Niaz Ali had submitted accounts before me pertaining to M/s. Noorani Optical Mart in which he had been charging and paying Rs. 203 as rent of the plot bearing C. S. No. C/233 to Mst. Saira w/o Haji Niaz Ali.

3. That the concern M/s. Noorani Optical Mart was a tenant of Mst. Saira Bai ostensible owner of Plot No. C/233." Mr. Fazeel mainly relies on clause No.

3. It should be noted that Mst. Saira Bibi is described as the ostensible owner of the land on which the building in which the business as going on stood though there is no dispute about her ownership of the premises, In this context, the word "ostensible" is perhaps an ostentation in favour of Gul Muhammad Petitioner. The reason why, according to the deponent, Messrs Noorani Optical Mart was a tenant of Mst. Saira Bibi, was the submission of accounts before the deponent as the arbitrator. Those accounts according to counsel, contain entries to show that Rs. 200 per month were paid to her by way of rent, Mr. K. A. Ghani counsel for Haji Niazali as well as Mst. Saira Bibi, says that no rent was paid by M/s. Noorani Optical Mart or Haji Niazali to Mst. Saira Bibi, because, accord ing to counsel, Mst. Saira Bibi, who is the wife of Haji Niazali, had permitted the latter to carry on the business as a licensee. An obstacle in the way of this argument of Mr. Fazeel is that the account‑books, to which reference has been made by the depo nent, have not as yet been produced, and the opinion of the deponent cannot be accepted in "substitution of the primary evi dence. Moreover, the fact that the deponent was the arbitrator, does not import any sanctity to his deposition, because his award only has sanctity in law, and not his opinion outside the award.

15. There is another aspect which may be noted, and it is that, according to Mr. Fazeel, the tenancy was originally trans ferred by Haji Tahir Muhammad Noorani and that it was a part of the running business, which was purchased from Haji Niazali, and was transferred by Haji Niaz Ali to the firm. As compared to this stand of Mr. Fazeel, the affidavit of the arbitrator gives a different shape to the plea by relying on the inference, drawn by the arbitrator, that the firm was the tenant of Mst. Saira Bibi because the firm was paying rent to her. The affidavit does not at all support the contention of counsel for Gul Muhammad petitioner, from this point of view.

16. The overall conclusion of the foregoing discussion is that both the revision petitions be dismissed, subject to the clarification given above, as well as the dismissal of Appeal No. 34 of 1967 of Mst. Saira Bibi which was accepted by the learned District Judge, I order accordingly. A. E./K. B. A. Petition dismissed.