1996 SCMR 19 (PLP)

Mian Tariq Mahmood, Advocate Supreme Court , with Ejaz Muhammad Khan, Advocate‑on‑Record for Respondent. Date of hearing: 26th July, 1995. MUHAMMAD BASHIR KHAN JEHANGIRI, J.‑‑This appeal by leave is directed against the judgment of a learned Single Judge of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dismissing an appeal filed by the appellants and thereby upholding an order of their ejectment from the disputed shop.

2. The eviction application was filed before the learned Rent Controller, Rawalpindi Cantonment, under section 17 of the Cantonments Rent Restriction Act (No.Xl) of 1963 (hereinafter referred to as the Act) for ejectment of the appellants from the disputed shop on the sole ground of bona fide requirement by the respondent landlord of the shop for his own use. The learned Rent Controller allowed the application on the aforesaid ground. The learned Single Judge in the High Court affirmed these findings. Hence this appeal.

3. Leave to appeal was granted in the following terms:‑‑ "Mr. Bashir Ahmad Ansari, the learned counsel for the petitioners contended before us that there was overwhelming evidence on record to show that the respondent was already in possession of another shop in the same building where he was carrying on his business. It is, accordingly, contended by the learned counsel that in these circumstances, it was incumbent on the respondent to have established before the. Rent Controller that the shop in his possession, where he was carrying on his business, was not sufficient for his needs. The learned counsel contends that neither in the evidence nor in the application for eviction any averment was made to this effect, and as such the order passed by the Rent Controller granting eviction on the ground of personal and bona fide requirement in the circumstances of the case was illegal. The contention of the learned counsel for the petitioners requires examination and we, accordingly, grant leave to appeal"

4. The learned counsel for the appellants contended before us that there was no satisfactory evidence on the record to establish personal and bona Fide requirement of the respondent‑landlord. The learned counsel, in this contest, took exception to the observations of the learned Single Judge in the High Court that in the instant case there was no misreading or non‑reading of the evidence on record and maintained that the learned Single judge did not notice that in his eviction petition as also in his statement, while appearing as witness, the respondent had stated that his younger brother was in possession of the dispute shop which remained with his possession whereas the witnesses appearing on behalf of the appellants had stated that it was the respondent who was in possession of the shop and was doing business therein.

5. Mr. Bashir Ahmad Ansari, learned counsel for the appellants contended that by virtue of the agreement photo copy Exh.R.3 executed between the father of the respondent on the one hand and the predecessor‑in?-interest of the appellants on the other pending earlier ejectment proceedings between them a lease in perpetuity of the disputed half portion of the shop had been created in favour of the appellants. According to Mr. Ansari, the father of the respondent since dead, had undertaken that even his heirs or transferees would not be entitled to eject the appellants from the disputed shop, therefore, the respondent was estopped to have them evicted.

6. The lease in perpetuity is envisaged by section 1115 of the Transfer of Property Act (No. IV of 1882). The construction of the agreement photo copy Exh.R.3 is the main point for determination. From the perusal of the photo copy of the agreement, the intention clearly seems to be to allow the lessee to continue for an indefinite period so long as he pays the rent regularly and performs other usual conditions of tenancy. In the identical case of Muhammad Azizal Bari v. Moulvi Raziuddin Muhammad Idris Khan and another (AIR 1939 Calcutta 423) a learned Division Bench of Calcutta High Court had held that the general rule of construction that a grant of an indefinite lease rules for the life of the grantee should apply as "as pointed out by their Lordships of the Judicial Committee in Babu Lekhraj Roy v.? Kunhya Singh (1879) 3 Cal. 210 that "if a grant be made to a man for an indefinite period it enures generally speaking for his lifetime and passes no interest to his heirs unless there are some words showing an intention to grant an hereditary interest Again the case of Ashutosh Lahiri v Chandi Charan Mitra (1927) 14 AIR Cal. 179 was also referred wherein the learned Judges held that "in view of the terms of the lease it would be ' right to apply it the general rule of construction which is to the effect that if a grant is made to a man for an indefinite period it enures generally speaking for the lifetime of the grantee unless there were some words showing the intention that a heritable grant was made". To the same effect is again the decision of the Bombay High Court in Bavasaheb Walad Mansursahcb Kotri and another v. West Patent Press Co. Ltd. and others (AIR 1954 Bombay 257) wherein it has been held that‑‑ " ....If the lease is for an indefinite period, it does not enure for the benefit of his heirs. It is usually for the lifetime of the lessee himself, unless again it clearly appears from the contract that the benefit of the lease is intended to accrue to the successor of the lessee. If the lease provides that the lessee would continue in possession of the property so long as he pays rent, it is equally regarded as a lease for an indefinite period and as such for the lifetime of the lessee." In our opinion, therefore, on a fair and reasonable construction of the agreement photo copy Exh.R.3, it must be held that the father of the appellants 8 was entitled to remain in possession of the property as lessee for his lifetime and that it did not enure for the benefit of the appellants who have succeeded him after his death.

7. Mr. Bashir Ahmad Ansari, learned counsel for appellants, then took strong exception to the registered gift deed dated 17‑11‑1993 executed in favour of the respondent by his father on the ground that the donor is not proved to have made over possession of the disputed half portion of the shop. The learned counsel also assailed the gift deed being mala fide with a view to defeating the order of the learned Rent Controller, Rawalpindi Cantonment in the‑earlier round which had culminated in the execution of lease in perpetuity. In support of this proposition Mr. Ansari placed reliance on the precedent case of Shamshad Ali Shah and others v. Syed Hassan Shah and others (PLD 1964 SC 143) to contend that no evidence was led by the respondent to show that the predecessor‑in‑interest of the appellants had been asked to pay the rent to the donee‑respondent anti that there was no other material from which it could be possibly gathered that the donor 'had. done all that was possible for him to do complete the gift'. It was thus urged that the gift was not accompanied by possession and that the donor died before gifting possession to the donee.

8. The attack to the validity of the gift seems to be two‑pronged: firstly that it was mala fide in order to enable the father of the respondent to wriggle out of the agreement Exh.R.3 and, secondly, that seizing was necessary in order to establish a right of property in the gift. The objection of mala fide seems to be misconceived in view of the pending civil litigation between the respondent and his brother over the propriety of the gift deed itself. We have, therefore, decided to refrain from making any observation on the validity of the gift in any manner lest it should adversely affect the respective claims of the respondent on the one hand and his brother on the other to the subject‑matter of gift. Suffice it to say at this juncture that a tenant would have no locus standi to challenge the validity of a gift of the property to donees of the disputed shop I C except on the ground of mala fide which in the instant case we have already held to be untenable.

9. The learned Rent Controller had attended to the proposition wherefor leave to appeal has been granted by this Court. In this regard it was held that plea of the appellants that the respondent was in possession of other half of the shop would not be of any avail to them. According to the learned Rent Controller, "it is the right of the person to use his property in whatever legal way he earns his livelihood." The learned Rent Controller went on to observe:‑‑ "...there are sufficient safeguards provided in the Cantonments Rent Restriction Act, 1963 that if the person does not occupy the premises for his use after its vacation, the tenants can get back the possession of the suit premises by applying to the Rent Controller." The High Court dealt with this contention of the learned counsel for the appellants in the words that follow:‑‑ "There is no cavil with the proposition that it is the prerogative of the landlord to use the property in whatever legal way, especially to earn his livelihood and his rights are protected by express provisions of the Cantonments Rent Restriction Act, 1963. There is not a shred of evidence to doubt the bona fide personal need of the landlord especially when, in case the landlord does not occupy the property in question, the tenant shall be well within his right to apply to the learned Additional Rent Controller for taking back the possession. The impugned order is thus just, proper and no interference is called for by this Court in the matter."

10. We have examined the plea of the respondent that half portion of the shop measuring 8` x 16` which has since been occupied by his estranged brother and, therefore, he was in bona fide need of the disputed shop. Conceding for a while that respondent was in occupation of that portion. The plea of the p respondent before the Rent Controller was that space measuring 81 x 16`1 was insufficient for his business. In a case like the present one, it is a question of fact whether the shop with the space measuring 8` x 16` was insufficient for use by the landlord. This question of fact has been concurrently found by the two forums below in favour of the respondent which is unexceptionable on its own merits.

11. In this view of the matter, there is no merit in this appeal which is dismissed accordingly. The appellants are directed to deliver the vacant possession of the disputed shop to the respondent within three months from today on the condition that the rent for this period of three months shall be deposited in advance within two months from today. In case the appellants failed to vacate the shop after expiry of the period of three months, the Rent Controller will issue writ of ejectment against the appellants without any further notice and the same shall be executed, if necessary, with police aid. AA./M‑3119/S ?????????? Appeal dismissed.