P L D 1976 Karachi 738 (PLP)

(10) Is the plaintiff entitled to mesne profits? (11) Is the plaintiff entitled to the demolition of the construction of the defendants as prayed? (12) What should the decree be? (13) General. And both parties led evidence. On issue No. 1, which was the main issue in the suit, the trial Court gave a finding that since, some portion of plot was admittedly in possession of Oriental General Co. at the time of execution of the lease and since physical possession of that portion had not been delivered by the lessor to the appellant either at the time of executing the lease or thereafter, the said lease did not extend to that portion and hence the appellant could not seek ejectment of the respondent who came to occupy part of that portion subsequently. On issue No. 7, the trial Court gave a finding that the respondent was not a trespasser in so far as the appellant was concerned for the reasons that the position of the appellant himself was that of a lessee and not of an owner and it not having been proved by the appellant that the lease granted to him extended to the portion in occupation of the respondent, he could not challenge the possession of the respondent who came on the plot independently of him. On issue No. 2 relating to adverse possession, however, the trial Court gave a finding against the respondent holding that he had failed to prove adverse possession as he did not specify the point of time at which he occupied the portion of the plot. On issue No. 3, the trial Court gave a finding against the appellant holding that it being a suit for possession and mesne profits, the landlord was a necessary party to the suit and the latter not having been joined, the suit was bad for non joinder of proper parties. On issues Nos. 4 and 5, the trial Court gave a finding against the respondent holding that section 10 of the Rent Restriction Act of 1953 or section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 did not apply as relationship of landlord and tenant did not exist between the appellant and the respondent. On issue No. 8 relating to valuation, the trial Court found against the appellant by holding that the suit was improperly valued, for, the appellant-plaintiff had valued it on the basis of rental value although he had treated the respondent as a trespasser and, secondly, whereas he claimed possession of the premises and mesne profits at Rs 50 per month, he had put the valuation at the rental value of Rs. 45 per month. On issues Nos. 10 and 11 relating to mesne profits and demolishing of the construction, the trial Court gave a finding that the appellant having failed to prove that he was lessee of the portion in occupation of the respondent or was entitled to recover rent from him, he could not claim mesne profits from the respondent or seek demolition of the construction already raised by the respondent on that portion. Having given the above findings, the trial Court dismissed the suit. The appellant appealed against the decision in the suit. In the appeal, learned Additional District Judge dealt only with issue No. 1, namely, whether the plaintiff-appellant was lessee of the whole plot, and held that in view of section 107 of the Transfer of Property Act unless lessee is put in possession of the immvoable property his lease is not complete and since portion of this plot was admittedly in possession of Oriental General Co. at the time of execution of the lease, the lease did not extend to that portion without delivery of possession under section 107 of Transfer of Property Act which was not done in this case and since lease did not extend to that portion, the appellant could not eject occupants of that portion, even if they were trespassers and, accordingly, affirmed the finding of the trial Court and dismissed the appeal without giving find ing on any of the remaining issues. Hence this second appeal by the appellant. Mr. G. H. Abbasi, learned counsel for the appellant, contended that the finding by the Courts below, that the appellant was not a lessee of the whole plot, was contrary to facts as well as law and was, therefore, unsustainable in law. His argument was, that the agreement of lease between the appellant and the lessor clearly showed that the lessor had leased out the whole plot to the appellant and had delivered possession to him of the entire plot inasmuch as he gave him physical possession of the 2/3rd of the plot and constructive possession of the 1/3rd of the plot in occupation of Messrs Oriental General Co. which was sufficient to constitute delivery of possession envisaged by section 107 of the Transfer of Property Act. The learned counsel next contended that the finding by the trial Court that the respondent was not a trespasser qua the appellant was clearly erroneous because the trial Court had itself held that the respondent was not in adverse possession of the portion in his occupation and was not in possession at the time of execution of lease in favour of the appellant which findings, in other words, meant that the respondent had come on the premises after the commencement of the lease in favour of the appel lant and it having been proved that the appellant was lessee of the whole plot, the respondent was rank trespasser qua the appellant and, could, there fore, be ejected by the appellant. Learned counsel finally contended that the findings given by the trial Court against the appellant on other issues were also erroneous in fact as well as in law and deserved to be reversed. Respondent and his counsel both remained absent. Main question for consideration in this appeal is whether or not the appellant was a lessee of the whole plot No. 64/1 including the portion in question which, at the time of execution of the lease in favour of the appellant, was in occupation of Oriental General Co. and thereafter came to be occupied by the respondent in this appeal. In order to answer this question, reference has to be made to the lease agreement executed by the appellant and his lessor Ibrahimji Antaria. Relevant paras. of the lease agree ment read as under t- "Whereas Lessor are owners of an agricultural plot of land bearing survey No. 64/1 in Lawrence Qrs., Karachi and whereas the lessee has approached the Lessor to let the plot to him which the Lessor has agreed to do. Now this agreement witnesseth as follows:- (1) The lessor lets and lessee takes on lease the plot of land bearing survey No. 64/1 on monthly rental of Rs. 300 per month. (2) That the period of the lease will be 11 months but renewable at the option of the Lessee for further period of like months for at least four times and thereafter by mutual agreement. (3) That the tenancy shall be deemed to commence from 1-8-1949. (4) That the Lessee will pay the rent for every month in advance. (5) That some portion of the plot is at present in possession of Orient General Co. The lessee will take possession of the portion from Orient General Co. or fix up terms of the occupation with them. The lessor will have nothing to do with Orient General Co." Perusal of the aforementioned clauses of the agreement, execution of which has not been disputed by the respondent, would clearly show that the Lessor intended to and had leased out the entire plot to the appel lant. This is further borne out by the evidence of the appellant's witnes ses Irshad and Fazal Abbas. P. W. Irshad, who is duly constituted attorney and brother of the appellant lessee, in his evidence reiterated the statement of claim in the suit and stated that the lessor Ibrahimji Antaria had leased out the entire Plot No. 64/1 to the appellant who bad been paying full rent to the lessor and had also been paying taxes for the whole plot. He further stated that at the time of execution of the lease in favour of the appellant, one Messrs Oriental General Co. were in occupation of about 1/3 of the plot half of which was subsequently trans ferred by them to Messrs Mercantile Corporation and the remaining half was transferred to the respondent herein, unauthorisedly. P. W. Fazal Abbas. son of the lessor Ibrahimji Antaria, in his evidence stated that the appellant was the tenant of the whole Plot No. 64/1 since 1949 and that no body else was a tenant in respect of this plot. He also asserted that the respondent had never been their tenant at any time and was in, occupation of the plot without their permission and that neither any rent was offered to nor accepted by his father Ibrahimji Antaria from the respondent. Both the witnesses were cross-examined but nothing was brought out in their cross-examination to discredit their testimony on this question. Perusal of the evidence of the respondent himself would show that even he had not questioned the factum of the lessor executing the lease of the whole plot. What was, however, asserted by him, and upheld by the Courts below, was that since physical posses sion of the portion in his possession was not delivered to the appellant, the lease was not valid with regard to that portion and hence he could not be dispossessed by the appellant, which brings me to the question. whether or not, with the execution of the lease, the lessor had delivered possession to the appellant of the entire plot, including the portion in occupation of Messrs Oriental General Co. which came to be subsequently occupied by the respondent. Term "Lease" has been defined in section 105 of the Transfer of Property Act as a demise or a transfer of a right to enjoy that property. This definition came up for consideration before the Supreme Court in the case reported as Abdullah Bhai v. Ahmed Din (P L D 1964 S C 106), wherein their Lordships observed as under:- "A lease as will appear from section 105 of the Transfer of Property Act is a transfer of an interest in immovable property. Owner ship of physical property consists of a number of rights and the owner of such property when he creates a lease, transfers to the lessee a part of the rights of ownership, i.e. the right of enjoyment of the property, for a period, for consideration. During the continuance of the lease the right of enjoyment of the property belongs to the tenant and not to the landlord. The right of ownership as well as the rights of which it is composed are rights in rem and not in personem and by the lease a right to rem is transferred to the lessee." Similarly, in the case reported as Agha M. Jafri v. Younus Ali Kirmani (P L D 1960 Kar.103) Kaikaus, J., as he then was, while explaining the consequence of a lease observed thus:- "By a lease lessor transfers to the lessee possession as well as his right to possession. If he has not got possession then all that stands to be transferred to the tenant will be the right to possession, to the extent to which it vests in the landlord in spite of previous lease. There is certainly no bar to the transfer of a right to possession and such a transfer is involved in the creation of a tenancy. If the premises are already fn the possession of a tenant from month to month then the clew lessee will be entitled to serve a notice of ejectment on the first tenant in accordance with law. 1f the premises are in possession of a tenant for a fixed period the new lessee would be entitled to take advantage of any breach of conditions by the previous tenant which may involve a forfeiture of his tenancy." Viewed in the light of above observations, it having been established that the lessor bad leased out the whole plot to the appellant without any, reservation, the possession and right to possession of the whole plot stood transferred to the appellant with the execution of the lease. Ia the instant case, however, possession of the whole plot not only stood transferred but was specifically transferred to the appellant, as shown by clause 5 of the lease agreement which reads as under:- "that some portion of the plot is at present in possession of Orient General Co. Lessee will take possession of the portion from Orient General Co. or fix up the terms of occupation with them. The lessor will have nothing to do with Orient General Co." In the above view of the matter, there can be no doubt left that posses sion of the whole plot, including the portion in occupation of Oriental General Co. was delivered to the appellant. The Courts below have, however, proceeded on the basis that under section 1.07 of the Transfer of Property Act, delivery of physical possession had to follow the lease and since the appellant was not delivered actual physical possession of the portion in occupation of the Oriental General Co. the lease did not extend to that portion as well as to the part of that portion which came to be subsequently occupied by the respondent. It remains to be seen, there fore, whether the Courts below have correctly interpreted section 107 of the Transfer of Property Act which provides as under:- "A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. (All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession). (Where a lease of immovable property is made by a registered instru ment, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee). (Provided that the (Provincial Government) may, from time to time by notification in the (official Gazette) direct that leases of immovable property other than leases from year to year, or from any term exceeding any year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession)." Proviso to the above section would show that the rule mentioned in this section could be relaxed by the Local Government in the specified manner. Such a relaxation was indeed made in section 107, by the Government of Bombay, of which Sind formed part, by its Notification No. 12501 dated 8th December 1908 which provided that delivery of possession was not necessary for lease. It would thus appear, that the delivery of possession in the instant case was not required. Assuming that it was required, possession envisaged by section 107 of the Transfer of Property Act can be actual as well as constructive. Accordingly, if the lessor is shown to have delivered constructive possession of the property to his lessee, it would be a sufficient compliance of section 107 of the Transfer of c Properly Act. For support, reference be made to the Full Bench case reported as Mohan Lal v. Ganda Singh (A I R 1943 Lah.127) wherein it was held that the delivery of constructive possession was quite sufficient for the purposes of section 107 of the Transfer of Property Act. Relevant observation appearing at page 129 may with advantage be reproduced here as under:- "As to the other condition, regarding delivery of possession, it is not necessary in my opinion that delivery of possession must be physical at the time of the agreement. The delivery of constructive possession is quite sufficient for the purpose of section 107, Transfer of Property Act." Such being the case, it having been shown above that the lessor, at the time of executing the lease, had delivered to the appellant, physical possession of the major portion of the plot and constructive possession of the retraining portion in occupation of Messrs Orient General Co.. who later on passed on part of that portion to the respondent, it cannot be maintained that possession within the meaning of section 107 of Transfer of Property Act in respect of the portion occupied by the respondent, was not delivered to the appellant. Accordingly, the lease in favour of the appellant did extend to the portion occupied by the respon dent and the appellant was entitled to the right of enjoyment of that portion and in the event of being obstructed be could validly seek dispossession of the obstructor respondent by filing the suit, which he did after giving notice to the respondent to vacate and hand over possession of the premises to him. I am fortified in this by a Division Bench case reported as Achay) a v. Honomentra Yodu and another (A I R 1914 Mad. 296). In this reported case, land had been leased out to the plaintiff. The occupant in actual possession of this land resisted the suit and an objection was raised that the plaintiff/lessee was not entitled to sue for ejectment against the occupant in possession, as lessor himself was not in possession, of the land at the time of executing the lease in favour of the plaintiff. The lower Appellate Court up held this objection and dismissed the suit. The High Court in appeal reversed the decree and held that the plaintiff was entitled to maintain the suit for ejectment against the party in possession notwithstanding that on the date of the execution of lease, lessor was not in posses sion of the property. 'The Courts below were, therefore, clearly in error in holding that the lease did not extend to the portion in possession of the respondent and that the appellant cold not on that account seek his dispossession and the finding of the Courts below on the issue is accordingly reversed. Appellate Court below has not dealt with any of the findings given by the trial Court on the remaining issues which leaves this Court with two alternatives, either to remand the case to the appellate Court below for determining the remaining issues, or to determine the remaining issues itself without remanding the case. The learned counsel for the appellant vehemently contended that this Court should itself determine the issues, as the evidence is already on record and remand would only add to the inordinate delay in the final decision of the suit filed in the year 1961. I fully agree with the learned counsel that in the circumstances of this case, it will only be appropriate that instead of remanding the case this Court should determine the remaining issues. The trial Court has held against the appellant on Issues Nos. 3, 6, 7, 10 and 11 because of its finding on the main issue that the lease in favour of the appellant did not extend to the portion of the plot in possession of Messrs Oriental General Co. and the respondent. Since that finding of the Courts below on this main issue is reversed, the finding of the trial Court on those issues would also stand reversed. On issue No. 3, the trial Court has held that since the appellant was not the lessee of the portion in possession of the respondent, the suit filed by him without joining the landlord, was bad for non joinder of necessary party. It has, however, been held above that the appellant was lessee also of the whole plot including the portion in possession of the respondent In this view of the matter. the appellant could bring the suit in his own name without joining the lessor as a party to the suit. It was rightly contended by the learned counsel that, the lessor was not required to be joined in either capacity as there was no conflict of interest involved. He could not be joined as a defendant as he had conceded to the appellant the right to enjoy the possession of the plot. He could not be joined as a plaintiff also as be had already transferred all his rights of enjoyment of the plot to the appellant. The trial Court was, therefore, in error in deciding the issue against the appellant. On issue No. 8, the trial Court has held that the suit was under valued for the reason that, although the appellant treated the respondent as a trespasser, he had valued the suit on the basis of rental value of Rs. 45 per month and secondly, while be assessed rental value of the premises in question at Rs. 45 per month, he claimed mesne profits at Rs. 50 per month. Mr. G. M. Abbasi contended, firstly, that the suit could not fail on this ground as the Court, in such circumstances, had to call upon the plaintiff to value the suit properly and it is only when the plaintiff had failed to comply with the direction that the suit could fail, learned counsel next contended that the finding of the trial Court was also contrary to the pleadings as, in para. 14 of the plaint, monthly rental value had been fixed at Rs. 50 and not Rs. 45 as misread by the trial Court, for, Rs. 45 was mentioned in the plaint as Court-fee. Learned counsel, however, conceded that the valuation of the suit was not proper as it being a suit for possession, Court-fee had to be paid on the value of the property of which possession was sought and accordingly submitted that he was prepared to pay the proper Court-fee determined by the Office. The contentions advanced by the learned counsel are well founded. The suit was for possession. The appellant had, therefore, to pay Court-fee accord ing to the valuation of the property of which he claimed possession and P not on the rental basis adopted by the appellant. The position has been conceded by the learned counsel himself, and rightly so. The appellant has, therefore, to value the suit accordingly and pay proper Court-fee. The office shall accordingly determine and realise proper Court fee from the appellant within a reasonable time and before drawing up the decree. On issues Nos. 10 and 11, the trial Court has hold against the appellant on the ground that the appellant had failed to prove that the lessor had given him possession of the portion of the plot in occupation of the respondent and as such the lease did not extend to the portion in occupation of the respondent. However, since it has been held above that the appellant was lessee of the whole plot, including the portion in occupation of the respondent, he was entitled to seek ejectment of and claim mesne profits and demolition of the construction built by the respondent who, on his own evidence, was a rank' trespasser as he admitted in his evidence that finding the plot vacant he occupied it with out obtaining lease, licence or permission from any one. He also admitted that he had not paid any re-it, fees or charges to any one at any point of time. The issue regarding adverse possession was also decided against him by the trial Court and he did not challenge the finding at all. The respondent will, however, be entitled to remove the construction built by him. Indeed, the learned counsel for the appellant himself conceded that the respondent could remove and take away the construction built by him. The respondent will remove his construction within three months. There remains lastly the question of mesne profits. Learned counsel argued that Oriental General Ca. was admittedly in occupation of 1/3rd area of the plot and since appellant paid Rs. 300 per month for the whole plot, the rent for 1/3rd would come to Rs. 100 and since Messrs Oriental General Co. had given away some portion of 1/3rd area to Mercantile Corporation and some to tile respondent, the appellant's claim of mesne profits at Rs. 50 per month, being 1/6th of the rent payable by the appellant to the landlord, was only fair. I agree with the learned counsel. Mesne profits to be paid by the respondent to the appellant at the rate of Rs. 50 per month from the date of the filing of the suit to the date of his handing over possession to the appellant. In the result, the appeal is allowed and the judgments passed by the trial Court and the first appellate Court are set aside and the suit filed by the appellant is decreed with costs as prayed for. The respondent shall vacate the premises in his possession and put the appellant in possession there of within three months. S. A. H. Appeal allowed.