P L D 1964 (W (PLP)

WAHIDUDDIN AHMED, J

.‑This regular First Appeal is from the judgment of Mr. Abdul Wali M. Makhdoom, the then Sub- Judge First Class, Mirpurkhas in First Class Suit No. 39 of 1956, dated 9th December 1958. By this judgment the learned Subordinate Court passed a decree for damages in the sum of Rs. 45,608‑15‑0 with costs against the appellant and respondent No. 2.

2. Briefly the facts leading to this appeal are that Mir Allahbachayo Khan respondent No. 1 obtained on lease agri cultural land measuring 3804 acres situated in Somoro Taluka Tharparkar District from, late Mir Masu Khan by a registered deed dated 17th August 1942 for a period of ten years beginning from Kharif 1944‑45 to Rabi 1953‑

54. Later on, on 19th September, 1944 the estate of Mir Masu Khan was admitted to the protection of the Manager Encumbered Estates, Sind. On his death on 29th August 1944 his estate was discharged from protection and was restored to his legal heirs namely Mst. Bibi Sind Rani alias Naz Bibi, daughter (eight annas share), Mir Shah Muhammad Khan, brother (two and a half annas share) and Mir Ghulam Shah, brother (two and a half annas share). Out of the above‑mentioned heirs Mir Muhammad Hassan and Mir Shah Muhammad were already under the superintendence of the Court of Wards, known as estates Nos. 903 and 847 respectively. The shares inherited by them from estate No. 1664 were added to their respective estate. Subsequently on 6th March 1954, the share of Mst. Naz Bibi was taken up under the superintendence of the Court of Wards, known as estate No. 1144. The share of Mir Ghulam Shah was also under the protection of the Court of Wards. In this way the property in dispute continued to ire under the Management of the Government of Sind either through the Manager Encumbered Estates or the Manager Court of Wards.

3. In May, 1953 Mir Allahbachayo Khan respondent No. 1 applied for extension of the lease at Rs. 6 per acre to the Revenue Commissioner of Sind. He repeated his request in March 1954. On this occasion he raised his offer from Rs. 6 to Rs. 18 per acre but it was not leased out to him. On the other hand it was leased out in April, 1954 for a period of one year, 1954‑55 at the rate of Rs. 20 per acre to one Mir Muhammad Khan. This led to serious dispute between respondent No. 1 and the new lessee. Respondent No. 1 made frantic efforts to remain in possession, which did not materialize, and ultimately he was dispossessed from the land in dispute, according to him in August 1954, but according to his opponents much earlier than June 1954.

4. Mir Allahbachayo Khan respondent No. 1 on his eviction from the land in dispute filed the above‑mentioned suit for the recovery of damages in the sum of Rs. 2,44,705‑4‑

6. He alleged that he was assured by the Manager, Court of Wards that the lease of the land in dispute will be extended in his favour. On this assurance he continued to remain in possession of the leased land and cultivated about 800 acres of cotton and about 80 acres (tractor ploughed) for paddy crop. In this connection he spent large amounts on the Taccavi loans but ultimately his representations were turned down by the appellant and respondent No. 2, on account of the political animosity and malicious attitude of Pir Ali Muhammad Rashdi, the then Revenue Minister. Respondent No. 1 further alleged that on account of the mala fide action of respondent Nos. 1 and 2 in not extending the lease in his favour and granting it to Mir Muhammad Khan, he suffered damages in the following amounts:‑ Rs. a. p. (1) Cost of seed 8,000 19 0 (2) Cost of tractor ploughing 1,000 0 0 (3) Taccavi up to 1953‑54 12,754 3 6 (4) Fresh Taccavi for 1954‑55 12,537 5 0 (5) Loss in crop of non‑leased lands i.e Padhrio Farm due to Cr. Cases i.e. 2000 maunds of phuties less at Rs. 30 per maund. 60,000 0 0 (6) Loss of prestige and local influence due to 107, Cr.P.C proceedings. 30,000 0 0 (7) Loss of anticipated profit in 1954-55 10,325 0 0 (8) Management expenses 10,000 0 0 (9) Visits to Karachi about. 2,44,705 4 6 8,000 19 0 He claimed damages in the sum of Rs. 2,44,705‑4 ‑6 both from the appellant and respondent No. 2 and also against the Commissioner of Hyderabad Division.

5. The suit was resisted on behalf of the defendants. The appellant denied that the Manager, Court of Wards had given any assurance or recommended the plaintiff's case to respondent No.

2. Their version is that on 24th March 1954, the then Manager, Court of Wards had merely sent a report to respondent No. 2 on respondent No. 1's application. On an objection raised by Mir Shah Muhammad, one of the co‑owners, that the plaintiff was already in heavy arrears of the rent due on 29th March 1954, the Manager sent a further report recommending that the lease be disposed of by public auction. The defendants pleaded that as one of the co‑owners produced another lessee Mir Muhammad Khan, who was willing to take the lease at Rs. 20 per acre, the former Sind Government in exercise of the power under the Court of Wards Act and the rules made there, under sanctioned the lease of 0‑10‑8 shares in the estates in dispute for one year to the new lessee, and rejected the offer of respondent No. 1, which according to them they had every right to do, specially in view of the fact that the plaintiff had already been in heavy arrears and offered a much lesser rate. The suit was also resisted on behalf of the defendant on certain legal pleas namely that the suit against the Court of Wards was not maintainable in view of section 45 of the Court of Wards Act and the suit was bad as no notice was given under sections 80, C. P. C. and 31 of the Court of Wards Act. The claim in respect of the alleged damages was further contested on the ground that no such suit was maintainable against the Government or its other functionaries. It was also challenged on the ground that the claim was fanciful and exaggerated, On these pleadings the learned Subordinate Court struck as many as ten issues which are reproduced below:‑ "(1) Is the suit not maintainable in law under section 45 of the Court of Wards Act? (2) Is the notice given under sections 80, C. P. Code and 31 of Court of Wards Act not valid? If so, what is the effect? (3) Is the form of suit not proper? (4) Are Mir Muhammad Hassan and Mir Ghulam Shah necessary parties to the suit? If so, what is the effect of their non joinder? (5) Is the plaintiff entitled to his claim? If so, to what extent? (6) Is the suit or any of the pleas raised by the plaintiff res judicata in view of Suit No. 14/55 and No. 22/ 1954 as contended by the defendant No. 3 ? (7) Is the plaintiff estopped from bringing the suit? (8) Is the plaintiff entitled to damages ? If so, to what extent ‑ and from whom? (9) Is the suit not competent against the defendants Nos. 1 and 2? (10) What should the decree be?"

6. In support of their cases the parties produced both oral and documentary evidence. The oral evidence examined on behalf of respondent No. 1 was of P. W. 1 Bashir Ahmed, P. W. 2 Ali Muhammad, P. W. 3 Syed Ghulam Hyder Shah and P. W. 4 Muhammad Hashim. The defendant examined Dur Muhammad, D. W. 3, Ali Muhammad D. W. (Exh. 109). Respondent No. 1 was also examined in rebuttal as a witness in support of his case.

7. On the evidence led by the parties the learned Subordinate Court held that section 45 of the Court of Wards Act was no bar to the suit. He further held that the appellant and respondent No. 2 acted mala fide and as the steps taken by them in rejecting the offer of respondent No. 1 were not based on good faith, the suit was maintainable. On the question of statutory notice, the notice sent by respondent No. 1 was treated as valid both under section 80, C. P. C. and section 31 of the Court of Wards Act. He further accepted the plaintiff/respondent No. 1's case that he was assured by Mr. Baloch the then Manager Court of Wards that the lease of the land would be extended in his favour. The finding is that such an assurance was impliedly given by the then Manager Court of Wards. The learned Subordinate Court further found that on the basis of this assurance the respondent No. 1 continued to remain in possession and, therefore, held that he was bona fide holding over the land in dispute within the meaning of section 116 of the Transfer of Property Act.

8. It was further found by the learned Subordinate Court that the lessors impliedly consented and allowed respondent No. 1 to remain in possession till the middle of April 1954. As by that time the cultivation must have started, it was difficult for him to surrender the land and he was entitled to continue in possession at least on equitable ground. In these circumstances steps to evict him should have been taken under section 106 of the Transfer of Property Act and since he was not evicted under this pro vision of law, he was entitled to claim damages for wrongful dispossession on 2nd June 1954.

9. It will be observed that the learned Subordinate Court has held that both the appellant and respondent No. 2 acted mala fide in rejecting respondent No. 1's application for extension of the lease, that he was bona fide holding over the land in dispute under section 116 of the Transfer of Property Act and was wrongfully dispossessed from the land in dispute. Thus on the ground of malicious action and wrongful dispossession the learned Subordinate Court allowed respondent No. 1 damages under the following heads: Rs. a. p. (1) Taccavi 12,537 5 0 (2) Loss of anticipated profit in 15,000 0 0 (3) Management expenses 7,000 0 0 (4) Karachi visits 2,000 0 0 (5) Seeds cost 8,088 2 0 (6) Tractor ploughing 983 8 0 Total 45,608 15 0 It is in these circumstances that a decree for Rs. 45,608‑15‑0 as damages was passed both against the appellant and respondent No.

2. The appellant has challenged these findings in this appeal.

10. Mr. Castellino, the learned counsel for the appellant, has attacked the judgment of the learned Subordinate Court on four‑fold grounds: (1) that the finding that respondent No. 1 was given any assurance for the extension of the lease is erroneous; (2) that the finding that the appellant and respondent No. 2 acted mala fide is also erroneous: (3) that section 116 of the Transfer of Property Act is not applicable to agricultural lands and the finding that respondent No. 1 was validly holding over under section 116 of the Transfer of Property Act the land in dispute is erroneous; (4) that the suit for damages was not maintainable against appellant and respondent No. 2 as neither were they responsible for any loss caused to respondent No. 1 nor have derived any benefit out of the crop alleged to have been left on the land in dispute. We will discuss these points at their proper places.

11. After hearing the learned counsel for the parties it is perfectly clear to us that the finding of the Subordinate Court that the appellant or respondent No. 2 acted mala fide or that the respondent No. 1 was entitled to continue in possession of the land in dispute on the alleged assurance of the then Manager Court of Wards cannot be sustained either on facts or on any legal principle. It would be noticed that the learned Subordinate Judge had arrived at these conclusions on certain inferences drawn by him on the evidence led in the case. We would, therefore, examine the evidence on the record to find out whether the inferences made by him are legitimate and could be reasonably made on the facts and circumstances of the case before him. Admittedly, respondent No. 1 obtained the lease of the land in dispute in the year 1942 from Mir Masu Khan at Rs. 6 per acre for ten years. The period of lease was to expire in Rabi 1953‑54, that is to say, somewhere in the end of March, 1954. He applied for the extension of the lease in March, 1953 to the Revenue Commissioner, Sind, but the Manager Encumbered Estates vide letter, Exh. 85, dated 22nd July 1953 opposed it on the ground that the liabilities of the estate had been wiped out and it was going to be discharged very shortly. After certain shares in the estate came under the superintendence of the Court of Wards, respondent No. 1 on 4th March, 1954 made further representa tions to the Revenue Commissioner for extension of the lease for three years. The matter was referred by the Revenue Commis sioner for remarks to the Manager Court of Wards. At this stage for the first time respondent No. 1 raised his offer to Rs. 18 per acre. Thereupon, the Manager, Court of Wards, forwarded his case to the Revenue Commissioner under Exh. 86, a letter dated 24th March, 1954 with the following observations:‑‑ "The offer of Mir Allahbachayo Khan is three times, more than the previously lease money of Rs. 5 per acre. The average lease money secured by me in annual base auctions held during the last winter season is Rs. 24 per acre. The cultivation season for the Kharif 1954‑55 has advanced. In the circumstances, I request that Government may kindly be moved to consider the desirability of accepting the offer of Mir Allah bachayo Khan and sanction the lease in his name for the period as deemed feasible by Government vide rule 1(2) of lease rules". The other co‑owners were also vigilant and on 24th March, 1954, Shah Muhammad Khan, a co‑owner of the land in dispute, moved an application (Exh. 87) opposing the gram of lease to res pondent No. 1 on the ground that he was in heavy arrears of the lease money in the sum of Rs. 48,000 and was not a fit person for the grant of the lease. He further informed the Department that there were parties who are willing to take the lease at Rs. 25 per acre by private negotiations. On this letter the Manager, Court of Wards, on 29th March, 1954 vide (Exh. 88), drew the attention of the Revenue Commissioner that the land would fetch much more than what was offered and suggested that it was more beneficial to put to auction the estate land. He further opposed the grant of the lease of the land to Mir Allahbachayo Khan, who was in heavy arrears of rent. By this letter he also forwarded the petitions of Shah Muhammad and Mir Muhammad Khan for consideration of the Government. It is quite correct that by this time Mr. Muhammad Ramzan C. K. Shoro had succeeded to the office of the Manager, Court of Wards but there can be no doubt that the officer concerned acted in the interest of the estate and was perfectly justified in forwarding the higher offers and in opposing the grant of the land in dispute to respondent No.1. There were good reasons for it. Respondent No.1 was in heavy arrears of the lease money and his offer was also much less than the offer of Mir Muhammad Khan.

12. In the witness‑box Mir Allahbachayo Khan (Exh. 116) in rebuttal deposed that‑-- The Manager Mr. Ali Muhammad told me that lie was going to recommend my case to the Government and he said that if I had applied for one year he would have given me the lease straightaway but lie had no power to do so for 5 years. He further told me that as the season was starting I may start sowing etc., as Government may take some time to accord formal sanction. He told me further that Government will accept his recommendations and I need not worry. I had told him that if Government did not accept I would be put to loss but he gave me the above reply. Only due to this I spent on the land and started cultivation. The learned Subordinate Court accepted this version without any reliable corroboration. In this connection he observed as under:‑ "The plaintiff's case is that he was assured by Mr. Baloch but though Mr. Baloch denied such an assurance, yet in view of many facts and circumstances discussed by me above, I hold that such an assurance was actually given if not expressly at least impliedly by Mr. Baloch". In our opinion the learned Subordinate Court jumped at this conclusion on wholly erroneous grounds. In fact Mr. Ali Muhammad Baloch, forwarded respondent No. 1's application in a most guarded manner. He only asked the Government to consider his case and did not suggest in the letter (Exh. 86) that the lease should be granted to him. He only emphasised in this letter that the Kharif season is about to begin and an early decision may be taken on it. His allegation in the plaint about the alleged assurance appears to us to be an after‑thought. No such plea was set up prior to it. He admitted in cross -examination that he did not mention this fact in his appeals to the Government. He further admitted that he even did not mention this fact to Mr. Muhammad Sumar, who later on succeeded to the office of the Manager, Court of Wards. On these clear admissions the learned Subordinate Court should not have attached any importance to the alleged assurance. In law even otherwise no responsibility could be fixed on the appellant or respondent No. 2 on the basis of the alleged assurance. Under the rules framed under the Court of Wards Act, the sanction for grant of the lease for more than one year solely rested with the Government and the learned Subordinate Court should have realised that in such cases the assurance given by a subordinate officer could have no binding effect on the Govern ment or the corporate body,

13. Besides, it is one of those cases iii which respondent No. 1 could have easily saved himself from expenses which are alleged to have been incurred for the cultivation of the land in his possession. There is ample evidence on the record to show that the Government had rejected the application of respondent No.l for extension of the lease by April 1954. This is evident from the document produced by D. W. Din Muhammad (Exh. 84), Head Munshi, Incharge of the Litigation Branch of the Court of Wards. It is sufficiently clear that on 9th April 1954 vide. (Exh. 89), the Government rejected his application and granted the lease for one year at the rate of Rs. 20 per acre to Mir Muhammad Khan for the year 1954‑

55. By this letter Govern ment further called upon, the Court of Wards to dispossess the previous lessee at once. P. W. Mir Allahbachayo Khan in cross -examination admitted that he received the final reply of the Government rejecting his review application by letter dated 17th April 1954. He further admitted in examination‑in‑chief that "ploughing work on this estate must have started in June 1954 for Kharif 1954‑55 besides the tenants of that land were already there." He further admitted that "they did ploughing as they knew that if not myself any other zamindar would come in as a lessee". On these admissions there is little doubt that res pondent No. 1 was continuing to remain in unlawful possession of the land in dispute on some forlorn hopes. If in such cir cumstances he incurred any expenses or advanced taccavi loan he ran a great risk and in law no responsibility for such conduct can be thrown on the appellant or respondent No. 2's Govern ment.

14. The learned Subordinate Court has made much fetish of the fact that Pir Ali Muhammad Rashdi, the then Minister incharge, was the opponent of respondent No. 1 and instrumental in rejecting respondent No. 1's extension application. P. W. 3 Hyder Shah deposed about this fact. But in our opinion the alleged political enmity cannot be considered to be the reason behind the rejection of the extension application. Admittedly, respondent No. 1 offered only Rs. 18 per acre in March 1954. According to his own admission on 1st June 1954, he made an offer of Rs. 21 before Mr. Ridley. Thus on his own admission at the time when the lease was granted to Mir Muhammad Khan for one year his offer was much less than the offer that was accepted. It cannot, therefore, be held that the action of the Government was malicious or based on ulterior motives. On the facts of the present case, the Government was perfectly justified in accepting the highest offer and in further rejecting his application on the ground that he was in heavy arrears.

15. It is quite correct that some sympathetic considerations were shown to respondent No. 1 by Mr. Nazir Ahmed, the then Revenue Commissioner but that by itself cannot show that the Government acted maliciously or acted in bad faith. This officer came much later on the scene and his recommendation was not accepted by the Government. If the Government had accepted his recommendation, it would have done great injustice to a third party because it would be dislodging an innocent party on the basis of a subsequent higher offer. We have carefully gone through the evidence in this case and there is no trace on the record of any malicious intention on the part of the Government in considering the case of respondent No. 1 for the extension of the lease. On the other hand the evidence gives an impression that respondent No. 1 wanted to continue in possession of the land in dispute by hook or by crook. He did not part with the possession of the land in dispute and was making frantic efforts to obtain the extension in which he could not succeed. 1 n these circumstances the provisions of section 116 of the Transfer of Property Act are not attracted. On this view of the matter respondent No. I's case for holding over of the land in dispute cannot be sustained. In our opinion, the finding of the learned Subordinate Court both on the question of mala fide and holding over is not based on sound judicial considerations. We would, therefore, set aside the finding of the learned Subordinate Court, on these two questions.

16. Mr. Noorul‑Arfin, the learned counsel for respondent No. 1, urged that his client had invested large amount on the cultivation of the land in dispute particularly in sowing Kharif crop. The learned counsel, contended that he was evicted from the land in dispute in August 1954, and the entire Kharif crop was taken away by the new lessee. We are not in a position to give any finding on this question on the scanty evidence available on the record. Even if this contention has any basis the remedy of respondent No. 1 could certainly not be against the appellant or respondent No.

2. At best respondent No. 1 could lay his claim on the new lessee which in the present case has not been done. In these circumstances we will set aside the decree of the learned Subordinate Court in respect of the damages awarded to respondent No. 1.

17. In the present case the decree for damages was passed not only against the appellant but also against respondent No. 2, who had not filed any appeal Mr. Abdul Kadir Shaikh, the learned A. A.‑G., has strongly urged that in spite of the fact that no appeal was filed on behalf of respondent No. 2 the decree against it should be set aside. His main argument is that the liability of this respondent was co‑extensive with the appellant. He drew our attention to the fact that the grounds on which damages were claimed against appellant and respondent No. 2 are common and, therefore, in case the decree of the Subordinate Court is set aside against the appellant it should not be allowed to stand against respondent No.

2. In support of his contention the learned counsel referred to Order XLI, rule 33, C. P. C. It will be observed that under this provision of law an appellate Court is empowered to pass not only any decree or order which might have been passed but also such further or other decree or order as the nature of the case may require. In short the appellate Court has power to deal with the case in any way that appear to it to be equitable to all the parties concerned. For this purpose it is not necessary that the party claiming equitable relief has filed an appeal.

18. It may be mentioned at this stage that the Government of West Pakistan, respondent No. 2, also filed an appeal on 13th April 1959, but the Memorandum of Appeal was returned due to deficiency in the Court‑fee. According to the learned A.A.‑G., this appeal was not presented because by that time the Court of Wards had already filed an appeal against the judgment under consideration. In support of his contention that the interests of the appellant and respondent No. 2 are identical, he referred us to paras. 1, 2, 3, 5, 7, 17 and 19 of the grounds of appeal in which the appellant has challenged the findings of the learned Subordi nate Court both against themselves and respondent No.

2. The learned counsel maintained that in view of identity of interest the Government was advised to move an application for transposing itself from the array of the respondent to that of the appellant. The learned A. A.‑G., referred us to an application made by the Government on 9th February 1960, in this behalf, which was dismissed by a learned Single Judge on 19th December 1960. There is little doubt on these facts that the Government of West Pakistan was not inactive and took steps to challenge the finding of the learned Subordinate Court with a view to avoid its liability under the decree.

19. In these circumstances, the question for consideration is whether this is a fit case in which this Court should exercise the power vested in it under Order XLI, rule 33, C. P. C. The learned Additional Advocate‑General has invited our attention to a decision of this Court at Peshawar in the case of West Pakistan and Federation of Pakistan v. Muhammad Farid Khan (P L D 1960 Pesh. 111), on the point under consideration it was observed as under: If there is before the Court a question which is common between the appellant present in Court and the absent party. If that question is decided in favour of the appellant present to Court, the decision will enure to the benefit of the absent party as well. Order XLI, rule 33, permits the appellate Court to make an order in favour of the absent party as well. The learned Additional Advocate‑General further referred us to three decisions of the Indian Jurisdiction in Hari Sankar v. Anath Nath (A I R 1949 F C 106); Tinsukia Municipal Board v. Bankim Chandra (A I R 1950 Assam 101) and Misri Lal Nayak v. Mst. Surji (P L D 1949 P C 250). The last mentioned case has no application on the facts of the present case. In Hari Sankar v. Anath Nath, the provision of law invoked in this appeal came up for consideration before the Indian Federal Court. In that case some of the parties, who were not joined in filing the appeal but figured merely as respondents therein, presented an application for review of the judgment, on the ground that even though they did not file any appeal, relief could and should have been given to them under the provision of Order XL1, rule 33, Civil Procedure Code, inasmuch as the case of the applicants rests entirely on the same footing as that of the appealing pro prietors and the entire decision of the Improvement Tribunal was pronounced to be wrong. This application was granted by the High Court purporting to act under Order XLI, rule 33, C. P. C. The Federal Court considered the High Court's approach as correct. While holding that it was a fit case for exercising the power under Order XLI, rule 33, C. P. C., their Lordships observed as under:‑ "It cannot be disputed that in a proper case the Appellate Court can, under the provision of Order XLI, rule 33,11 C. P. C. vary or reverse a decree or order of the Court below even in favour of a party who has not preferred any appeal or cross‑objection. These powers indeed should be cautiously used with due regard to the circumstances of each individual: case, but no rigid rule can be laid down fettering the discretion of the Court in such matters which the Legislature has for best of reasons, left unfettered". It is in this light that we have also considered the case put forward on behalf of respondent No. 2 Government. Mr. Noor‑ul‑Arfin the learned counsel for respondent No. 1, has however, referred us to a decision of the Privy Council in Anath Nath Biswas v. Dwarka Nath Chakravarti (AIR 1939 PC 86). The question under consideration was not directly before the Judicial Committee and their Lordships did not pronounce their well considered view on it. The portion of the observations on which the learned counsel has placed reliance are reproduced below:‑ It was contended however that the language of rule 33 of the same Order was wide enough to cover the case. Even if their Lordships assume that the High Court was not wholly without power to entertain this ground of appeal‑an assump tion to which they do not commit themselves they are clearly of opinion that rule 33 could not rightly be used in the present case so as to abrogate the important condition which prevents an independent appeal from being in effect brought without any notice of the grounds of appeal being given to the parties who succeeded in the Court below. In the present case no such difficulty arises. All the parties likely to be affected are before us. It will be further noticed that the claim against respondent No. 2, Government is also based on the same allegations on which the claim was brought against the appellant. The claim for damages both against the appellant and respondent No. 2 is based on common grounds. The pleadings of both the defendants leave no doubt that their defence was also common. In fact in the grounds of appeal the appellant has clearly challenged the findings of the learned Subordinate Court against respondent No.

2. This is obviously one of those cases where the decision in favour of one party vitally effects the right of another party to the appeal. It would, therefore, be most inequitable to allow the decree to stand against such a party. In our opinion, this is a fit case in which in the interest of justice, we should exercise our power under Order XLI, rule 33, C. P. C. On this view of the matter the decree of the learned Subordinate Court against respondent No. 2 is also set aside.

20. In the result the appeal is allowed with costs throughout. Respondent No. 2 will bear its own costs in the appeal. R. B. A. Appeal accepted.