1986 PLP 146 (MLD)

(2) Whether the defendant is a trespasser and an unauthorised occupant in premises No.G‑3, ground floor K.P.T., Plot No. 56, If so, what is its effect? (3) Whether the defendant entered the suit premises without the permission of the plaintiff after he acquired ownership thereof and whether the defendant is trespasser of the same? (4) Whether the defendant has produced three bogus rent receipts Annexures 'A, B and C'. If so, what is its effect? (5) Whether the defendant is lawful occupant and tenant of the premises in suit?"

3. The parties adduced evidence. The respondent Mir Hassan gave evidence as the plaintiff in the suit and produced a sale‑deed regarding purchase of the suit property by him and his brother, and a letter addressed to him by the previous owner Mst. Rehmatun Nisa. The two documents were marked as Exhs.P‑2 and P‑3 in evidence. The applicant gave evidence himself and put in evidence 'certain documents marked as Exhs.D‑1 to D‑8.

4. The learned trial Judge decided issues Nos. 1 and 5 in favour of the respondents/ plaintiffs and issues Nos.1, 3 and 4 against them and dismissed the suit. His findings were set aside in Appeal No.343 of 1981 by the Additional Distinct‑end Sessions Judge, Karachi by the impugned order, dated 17‑7‑1982, holding that the applicant herein was a trespasser in the suit premises and was liable to be dispossessed and decreed the suit with costs.

5. The learned counsel for the applicant has assailed the judgment of the appellate Court on the ground that it is against the evidence on the record. He has put forth a legal ground, not agitated before, that the suit was not maintainable as it had been filed by one person, although the property is claimed by five persons. He has pressed in aid a, case reported in P L D 1973 S C 214 for raising the new ground at this stage. On the other hand, the learned counsel for the respondents has contended that the suit had been filed by all the co‑owners and there was no legal flaw in maintaining it. He has further contended' that the objection to the maintainability of the suit is not entertainable that this stage. He has also contended that the applicant had failed to establish that he was a tenant in the suit premises and he was liable to be dispossessed and there is not illegality or impropriety in the judgment of the appellate Court as to call for interference under revisional jurisdiction. He has placed reliance on the cases reported in P L D 1973 S C 160 and P L D 1964 Kar. 149.

6. There is no dispute to the title of the respondents herein over the suit property and it stands confirmed by a registered sale‑deed, dated 2nd September, 1980 put in evidence as Exh. P.3. It is also not disputed that the applicant herein is in occupation of the suit property. But there is serious dispute about the applicant's status as the occupant of the suit property. The respondents' contention is that he is a trespasser, whereas his contention is that he is a tenant. The sale‑deed in favour of the respondents herein is silent on the question of possession of property by a 3rd person. But there is mentioned in it that the possession of the property had been delivered to the vendees. The respondents have filed another document in the form of a letter addressed to the respondent Haji Gul Hassan by the previous owner that the suit property was occupied by "someone" and the purchasers were authorised to collect rent or any other dues from the said occupant. This letter is, dated 2‑9‑1980 which corresponds to the date of the execution of the sale‑deed. The learned counsel for both the parties have led stress on the contents of this letter. Mr. Shafaat Hussain, Advocate for the applicant, has urged that this letter conveys the clear idea that the applicant was and is an occupant of the suit property as a tenant, whereas Mr. Shaikh Muhammad, Advocate for the respondents, has contended that this letter has no reference to the applicant and whosoever was in occupation of the premises was not acknowledged as a tenant. It would, therefore, be worthwhile to reproduce the letter, which reads as follows:‑ "To Haji Gul Hassan son of Haji Muhammad Hasan Qadri Hotel, Masjid Road, Karachi. I, Mst. Rehmatunnisa wife of Syed Hyder, adult, Muslim, resident of Nazimabad do hereby agree and be bound that I have sold out my property tenement No. G/3, K.P.T.7‑A (56 new), Masjid Road, Karachi to you and your brothers. I state that said tenement is occupied by someone. Now, I state that you are authorised to collect rent due from the said occupant. You are also entitled to collect the past dues from the said occupant. I will not claim any present and past dues from said occupant. You are solely entitled to claim the same Karachi, dated 2‑9‑1980. (Sd. ) Mst. Rehmatunnisa." Witnesses:‑ 1. (Sd.) 2. (Sd.) The learned trial Court Judge held the view that this document viz. letter (Exh.P.3) did not bear out that the applicant was a trespasser. He further observed that the applicant had put in evidence a certificate Exh.D‑1 to the effect that he had paid rent to the previous owner, Mst. Rehmatunnisa upto the year 1980. He, therefore, concluded that it was not established that the applicant was in occupation of the suit premises as a trespasser. While holding so, he also made reference to certain rent receipts EXhs:D/5 to D/7 filed by the applicant. The learned appellate Court Judge disagreed with the view adopted by the learned trial Court Judge and held that the letter Exh . P . 3 did not make mention of the applicant as the tenant of the suit premises and that the certificate Exh.D.1 was not proved and the rent receipts Exhs.D/5 to D/7 did not furnish any evidence that the applicant was the tenant in the suit premises and came to the conclusion that the applicant was a trespasser and was liable to be ejected.

7. There is no mention in the sale‑deed Exh.P.2 that the demised premises was let out to the applicant herein or any one else. The letter Exh. P.3 also does not make mention that the person in occupation of the demised premises was the applicant. The certificate of payment of rent by the applicant (Exh.D.1) was not proved as its author was not examined to confirm its contents. The rent receipts Exhs. D/5 to D/7 pertain to prior period and they do not indicate that they were issued in respect of the same property. But the letter EXh.P.3, which has been reproduced above, does smack of a mischief employed by the parties viz. the original owner of the property Mst. Rehmatunnisa and the respondents. The sale‑deed Exh. P.2 and the letter Exh. P.3 are of the same date. Surprisingly, no mention was made in the sale‑deed that the property was in occupation of someone else but it was stated that the possession of the premises had been delivered to the vendees. But it was disclosed in the letter Exh.P.3 that someone was in occupation of the property. The respondent Gul Hasan has alleged in his evidence that the applicant herein has unauthorisedly entered upon the suit property after it had been sold to him. His stand/stands belied by the expression in the same letter that he was authorised to collect rent due and past dues from the said occupant and she i.e. the vendor (Mat. Rehmatun Nisa) would not claim any present and past dues from the said occupant. It follows that the name of the occupier of the suit property was mischievously suppressed, although the contents of the letter mentioned above bear out that the person in occupation of the property was a person who was liable to pay rent/dues. Since the applicant herein was in occupation of the property, he could be the person, and none else, who was referred to in the aforesaid letter Exh.P.3 as "someone". This fact does lend support to his contention that he was occupying the property as a tenant. In this context, his contention gets support also from the rent receipts Exhs.D/5 to D/7 produced by him in his evidence, although pertaining to prior period. In the circumstances, the learned trial Court Judge was justified in holding that it had not been proved by the plaintiffs/respondents herein that the applicant was in occupation of the suit property as a trespasser; and the view adopted by the learned appellate Court Judge is not sustainable.

8. As regards the maintainability of the suit, the ground advanced for the first time at the hearing of the appeal, does not find support from the pleadings. The title of the plaint of the suit reads Messrs Haji Gul Hasan & Brothers through their brother, co‑owner and attorney Mir Hassan , . . . . . ."A photostat copy of special power of attorney by the brothers to Haji Gul Hasan, co‑owner, was filed alongwith the plaint. Of course, the title of the plaint does not disclose the names of the other co‑owners yet the mention of "brothers /co‑owners" bare out that the suit had been filed on behalf of all the co‑owners by one of them, namely, Haji Gul Hassan, who held the power of attorney on behalf of other co‑owners, although the plaint did suffer from lacuna In drafting of its title. However, the lacuna stands covered by mention of the words "and brothers" and the filing of the copy of the power of attorney. The suit was not liable to be defeated on the aforesaid lacuna in drafting of the plaint. The view highlighted in the case of Khaliq Ahmad v. Abdul Ghani and another P L D 1973 S C 214, wherein it was held that a suit for possession can be brought by all the co‑owners jointly stands complied with in substance in the suit the present revision application has arisen from.

9. For the reasons recorded at paragraph No.7, the revision application is allowed, the impugned judgment and decree, dated 17th July, 1982 passed by the learned appellate Court, decreeing the respondent's suit, is set aside and the judgment and decree passed by the learned trial Court Judge, dated 31st August, 1981, dismissing the suit is restored.

10. The applicant is awarded costs of this revision application. A.A Revision allowed.