P (PLP)

WAHIDUDDIN AHMED, J.

This is a second appeal against the judgment of Mr. A. H. Qureishi, Additional District Judge, Karachi, in Civil Appeal No. 35 of 1957, dated 26th May 1958, setting aside the judgment and decree of the trial Court in suit No. 169 of 1956 and awarding the respondent a decree in the sum of Rs. 3,366-10-8 as damages with the costs of the suit and the appeal. The dispute between the parties relates to the rear portion of tenement No. 1 on a plot of land bearing No. 283, K. E. B., Victoria Road, Karachi. Originally, the whole building belonged to one Balakram Hitkari and others. Tenement No. 1, the subject-matter of the dispute in this appeal, was occupied by one Hotchand Vassumal, who was carrying on business under the name of "Rose Marie" as tenant under a lease deed dated 6th January 1947 at Rs. 300 per month. Appellant Aslam Fazal Ahmed purchased the running concern of Hotchand Vassumal and became the tenant of the original Hindu landlord in October 1947, but he changed the name of the business into Messrs Afaco & Company. Respondent Sheikh Ghulam Muhammad purchased the property in dispute from the Hindu owners under an exchange deed dated 5th November 1947 and became the owner of the property in dispute. It appears that in August 1948 the appellant unauthorisedly put up two wooden sheds in the open space at the back of the premises in their possession and the respondent on 3rd September 1948 by notice (Exh. 2) informed the appellant that he was in unauthorised occupation of the premises and called upon him to immediately remove the sheds. The appellant in reply by a letter dated 6th September 1948 (Exh. 2) informed the respondent that he was an authorised tenant under the Hindu landlord and that the structures raised by him were not of a permanent character and will be removed as soon as he got a godown. On the 18th of September 1948 the res pondent's counsel by letter (Exh. 4) challenged the occupation of the appellant and again asked him to remove the wooden sheds. On the 9th of December 1948 the respondent accepted Rs. 2,0:2-8-0 as rent from Ist October 1947 to 30th November 1948 at the rate of Rs. 300 per month and stated as under in Exh. 5:- "Now I have no demand whatsoever against Mr. A. F. Ahmed, in connection with the rent etc. Mr. Ahmed is, I hereby declare, the legal and permanent tenant of this shop, and I shall have no right to ask him to vacate the shop, in case if he is paying my rent." The dispute between the parties, however, did not end here, the respondent on 27th April 1949 brought Suit No. 262 of 1949 in the Small Causes Court, Karachi for the recovery of Rs. 1,750 as damages for wrongful use and occupation of the rear portion of the shop. This suit was withdrawn on 16th November 1949 in view of the non-confirmation of the exchange transaction with the Hindu owner required under the evacuee law. The respondent, after getting the exchange transaction confirmed by the Custodian, filed Suit No. 50 of 1951 in the Chief Court of Sind for the recovery of Rs. 3,366-10-8 against the appellant as damages for wrongful use and occupation of the back portion of the shop in dispute at the rate of Rs. 100 per month i.e., from the month of August 1948 upto 20th May 1951, viz: for 33 month and 20 days. The suit was transferred to the District Court and came up for hearing before Mr. Syed Hasan Kazmi, Fifth First Class Sub-Judge, Karachi, as Suit No. 169 of 1956. After recording the evidence of the parties, the learned Subordinate Judge dismissed the respondent's suit by judgment dated 19th February 1957 on the ground that the rear portion of tenement No. 1 was a part of the demised premises and the res pondent was not entitled to claim any damages from the appellant in view of the settlement effected between the parties on 9th December 1948 by Exh.

5. The learned Judge in this connection observed as under:- "In the context of these facts, the above quoted words of the receipt dated 9th December 1948 (Exh. 5), showing that after payment of rent at the rate of Rs. 300 per month the plaintiff was not left with any further demand whatsoever, are very conspicuous; and lend weight to the conclusion that the rent not only covered the main building of the shop but also the structures on the open space behind it." He further observed: "It may be conceded that the structures in suit were made without the consent of the plaintiff or his predecessor-in-interest but the subsequent conduct of the plaintiff discussed above shows that he condoned the unauthorised nature thereof by accepting rent which was fixed and paid not only in respect of the main building but also the structures. In these circum stances, it cannot be said that defendant's occupation of the structures in suit is wrong." The matter was taken in Civil Appeal No. 35 of 1957 before Mr. Ahsanul Haq Quraishi the learned Additional District Judge, who reversed the finding of the learned Subordinate Court and held that no settlement was arrived at between the parties in respect of the dispute of the unauthorised structures raised by the appellant in 1948 under Exh.

5. He further held that the structures being unauthorised and the open space of land having been used by the appellant without the permission and consent of the landlord, the appellant was liable to pay damages and decreed the suit. It may be mentioned at this stage that the respondent has now nothing to do with the property in dispute as he had sold it to Mr. Kassim Dada in 1952. Mr. Castellino, the learned counsel for the appellant, has urged before us that on the findings of both the Courts below admittedly the back portion of the slop in dispute was a part of the demised premises and the learned Additional District Judge was not justified in law to hold that the appellant had committed trespass in respect of this portion and is liable to pay damages for its wrongful use and occupation. The learned counsel also contended that the structures in dispute were not only raised by the appellant but the evidence on the record also proves that some portion of the structures was raised by the Hindu occupant during the time of the Hindu landlord who had consented and never raised objection on it. In the alternative the learned counsel contended that the dispute between the parties in respect of the structures was raised in September 1948 and it was settled between the parties in November 1948 under Exh. 5 and the finding of the learned Subordinate Judge in this respect was absolutely correct and the learned Additional Judge was not justified in reversing it. The question for determination in this appeal is (1) whether the structure in dispute was raised by the appellant or by the Hindu tenant; (2) whether the dispute between the parties in respect of the structure in dispute was settled in November 1948 under Exh. 5; and (3) whether the respondent i3 entitled to claim any damages on account of the fact that the appellant raised the structure unauthorisedly or whether the remedy was to sue for the removal of the structures and not damages. On the first point the evidence on the record shows that two of the sheds in question were in existence during the time of the Hindu owner. This fact was admitted by P. W. 2 Sheikh Ghulam Muhammad (Exh. 9), the respondent, in his statement in the trial Court. He stated as under: "I had stated in my earlier statement before the Rent Controller in the case of Dada that two of the sheds in question were in existence during the time of the Hindu owner, and two were made by the defendant after I had purchased this building." On this admission it is absolutely clear that two of the sheds were constructed by the Hindu tenant and the appellant cannot be held responsible for raising them. There is; however, not the slightest doubt that the appellant after the occupation of the shop in dispute raised further structures on the open plots of land on the back portion of the shop in dispute for his workshop. This is clear from Exhs. 2 and

3. The appellant admitted in Exh. 3 that he had raised some structure in order to use it as a godown and promised to remove the structure the moment he got a separate godown for this purpose. We will therefore hold that two of the sheds in question were raised by the Hindu tenant for which the appellant cannot be held responsible and the remaining portion of the shed was raised by the appellant without the consent and permission of the respondent. On the second point Mr. Castellino, the learned counsel for the appellant, supported the, finding of the learned Subordinate Judge that the dispute about the unauthorised structure mentioned in Exhs. 2 and 4 was also settled under Exh.

5. The contents of Exh. 5 show that the appellant paid to the respondent the arrears of rent upto 30th of November 1948. In the receipt the respondent no doubt recited that he had no demand whatsoever against the appellant in connection with the rent etc., but it appears to us that the word "etc." had nothing to do with the claim of damages, the subject-matter of subsequent dispute between the parties. It will be noticed that in Exh. 2 and Exh. 4 the respondent did not claim any damages whatsoever about the raising of the structure. He only called upon the appellant to remove the structure which was accepted by the appellant and he promised to remove it as soon as he was able to obtain separate premises for his godown. It is therefore obvious that there was apparently no dispute between the parties about the unauthorised structure because the appellant had already undertaken to remove it. The conclusion of the learned Subordinate Judge is not borne out from the evidence on the record and we agree with the view of the learned Additional Sessions Judge that the words "Now I have no demand whatsoever against Mr. A. F. Ahmad, in connec tion with the rent etc." in the circumstances of the case had nothing to do with the unauthorised structure. This brings us to the most important question raised in this appeal namely, whether a tenant is liable to pay damages to the landlord for putting the demised property to additional use by raising unauthorised temporary or permanent structures. There is conclusive evidence in this case that the rear portion of the premises in dispute was used by the previous tenant and such portions are also used by other tenants. This fact was admitted by P. W. 1 Abdul Aziz (Exh. 8), an occupant of the adjoining. He stated in answer to the Court question that "the other tenants were using alright the open space behind their respective shops". In fact his evidence further shows that other tenants of the building had also raised sheds on the rear portion of their premises without any objection by the Hindu landlord or respondent. The concurrent finding of fact that the rear portion is part and parcel of the premises leased out to the various tenements, is therefore not challenged by Mr. Fakhruddin, the learned counsel for the respondent. He however strongly support ed the first appellate Court's decision on the ground that the appellant in converting the open space into a workshop by putting structures committed trespass and in law in such circumstances a landlord is entitled to claim compensation for wrongful use and occupation of the demised property: The learned counsel referred us to certain passages in the law of -Forts by Salmond (12th Edition) at pages 158 and

171. In those passages it is stated that right of entry for one purpose and actual entry for another purpose is trespass and that when a trespass consists in some beneficial use wrongfully made, relief should be granted even if it causes no damage and the plaintiff is entitled to claim reason able remuneration for its use. But the cases on which those passages are based Jegon v. Vivian ((1871) L R 6 Ch. 742) are cases where the tenancy has already been determined.' Even the learned author at page 170 observed that if there remains any independent ground or reason of entry, which is unaffected by the abuse, it will suffice to justify the entry and protect it from the rule of trespass ab initio. It is true where an injury is committed to the house or land of a person who has merely a reversionary interest therein he is entitled to recover damages for the injury which his interest sustains [Cf. Shadwell v. Hutchinson ((1831) 2 B & AD 97; 109 E R 1079)]. In Cox v. Glue ((1848) 5 C B 533; 17 L J C P 162 ) it was held that the landlord's right is confined to the reversionary interest inasmuch as he has no present possession of the property. Thus where he has demised the use of -the surface, he cannot maintain any action for the injury done by persons by merely riding on the property, though he might if they made hole in the soil so that the sub-soil was injured. But the respondent's claim is not based on any injury caused to the land itself. We are also aware of cases where a tenant is treated as trespasser if he encroaches on the adjoining land of the landlord. In Lavender v. Betts ((1942) 2 A E R 72), a landlord, who removed the doors and windows, expecting thereby the tenant to vacate the premises was mulcted in punitive damages for this high-handed mode of causing discomfort to her. None of these cases help the respondent's case. He has claimed damages for wrongful use and occupation of the rear portion of his tenements. In a claim by a landlord against the tenant the term "wrongful use and occupation" has a special significance. It means that the tenant's possession has become wrongful and he is liable to compensate the landlord for holding over on an implied agreement to pay for the use of his property. However, the condition precedent of such suits is the termination of the tenancy, which is not the case here. Admittedly tenancy at the time of the action subsisted and on the basis of this principle no action could be maintained against the appellant. The appellant is holding the property in dispute on the basis of the recognition of his tenancy under Exh. 5 and there being no contract to the contrary, the provision of section 108, Transfer of Property Act applies to his case. Even under section 108 (o) B and (p), Transfer of Property Act the only right available to the respondent is to sue for the removal of the unauthorised structure or perhaps for ejectment in view of the provisions of the Karachi Rent Restriction Act. In England it was formerly thought that any alteration of the tenement amounted to waste and in some cases it was held that if the tenant built a new house it is waste. But now it is essential to show that the new building or other act complained of is an injury to the inheritance [Cf. Jones v. Chappell ((1875) L R 20 Eq. 539)]; Meux v. Cobley ((1892) 2 Ch. Div. 253). As already observed no such case has been made out in this matter. On the contrary the respondent's claim is based on loss of profit. If that is the position in English law, how can such action be treated as a trespass in Pakistan. In the light of this discussion it appears to us that the raising of the structure or violating the implied terms of the provisions of section 108, Transfer of Property Act do not in the least entitle a landlord to claim damages unless and until it is also proved that the tenant by any of his acts has caused physical injury to the property which has resulted in some loss to the landlord. In the absence of any such case it is difficult to appreciate how a landlord can be allowed damages for wrongful use and occupa tion of the property when he is already receiving rent for the use of the property. The mis-use of the property is one thing and wrongful use and occupation of property is another thing. The occupation or possession of a tenement can become wrongful only after the tenancy is terminated and not before that. In our opinion the learned first appellate Court was not justified in awarding damages to the respondent simply because the appellant was wrongly making beneficial use of the property. We are clearly of the opinion that as long as the tenancy subsists the occupation of the appellant of the demised premises is not that of a trespasser and no damages can be claimed from him on the ground of alleged unauthorised structure. The claim in question is a crude attempt to recover more rent in the guise of damages. This claim has already been rejected by the Rent Controller and cannot be countenanced by this Court. We will therefore reverse the decision of the first appellate Court and hold that the respondent is not entitled to any damages in this case. No other point is urged. Accordingly the appeal is allowed with costs throughout. K. B. A. Appeal allowed.