P L D 1961 (W (PLP)

ANWAR‑UL‑HAQ, J.‑This is a Defendant's appeal. The pro perty in suit is land measuring 10, 300 square yards, and is described as half portion of survey No. 440/1, Garden West, Karachi. The case set up in the plaint was that the plot had been purchased by Plaintiff No. 1, Mrs. Tehmina B. Master in 1943 from three different owners by means of 3 registered sale‑deeds against an aggregate price of Rs. 27,

258. Later on she sold the property to Plaintiff No. 2, Messrs Gujrat Bus Service, who also joined in the suit. It was alleged that the defendant‑appellant was a tenant of the land at an annual rental of Rs. 25 only, and the tenancy was terminable on demand. The plaintiff determined the defendant's tenancy by a notice in writing dated 5‑9‑1953, giving him 6 months time ending on 9‑3‑1954. The defendant, however, did not vacate the land as desired, whereupon the plaintiff filed the present suit praying for the following reliefs a (1) possession of the property, (2) Rs. 44 on account of rent for the period from 27‑5‑52 to 9‑3‑54, (3) Rs. 1,380 on account of mesne profits from 10‑3‑54 to 25‑7‑54 at the rate of Rs. 10 per day, (4) Further mesne profits at Rs. 10 per day from date of suit till the delivery of possession, and (5) Costs of the suit.

2. The defendant‑appellant contested the suit on the grounds that he was an agriculturist, and was entitled to the rights and privileges granted to agriculturists by law ; that he did not admit the tenancy and hence the question of its termination did not arise ; that he had been in adverse possession of the property for over 40 years, and had thus acquired absolute ownership by operation of law ; and that, in any case, he was not liable to pay any mesne profits. He also questioned the valuation of the suit arid the authority of the son of the plaintiff No. 1 to act as a legal attorney. Finally, he contested the fact that the plot had been privately divided, and asserted that he could not be ejected from any specified portion of the land.

3. The suit was first instituted in the former Chief Court of Sind, but was later transferred to the newly created District Court where it was decided by Mr. Mehdi Ali Siddiqi, Additional District Judge, on the 16th of January 1960. As many as 13 issues were framed by the learned trial Judge. He found that the Plaintiff No. 2 was the present owner of the land, that the defendant was a tenant of the plaintiff, that his tenancy was terminable on demand, that the defendant was not in adverse possession of the land, and that the suit was not time‑barred. He further found that the rent as claimed was due, but as regards the mesne profits, he fixed the amount at Rs. 250 per annum.. As regards the issue whether the defendant was an agriculturist, the learned trial Judge observed that this was irrelevant. He also stated that the learned counsel for the defendant did not press this issue. On these findings, he passed a decree in favour of the plaintiffs. The defendant has now come up in appeal against this judgment and decree.

4. Before the hearing of the appeal could be taken up on merits, Mr. Hafiz, the learned counsel for the appellant, requested that this application under Order VI, rule 17 for the amendment of h s pleadings, may first be disposed of. This application is No. 197 of 1961, and was filed on 1 (‑3‑1961. It is stated in this application that it was essential to determine the question of the status of the defendant as an agriculturist, and the rights and privileges which accrued to him in that capacity. In the second place, it is urged that the question of the compensation payable to the defendant as an agriculturist, should also be decided. Thirdly, the effect of the Martial Law Regulation No. 64 by which a scheme of land reforms was enforced in West Pakistan during the pendency of the suit between the parties should also be determined, as it has a bearing on the question of the ejectment of the defendant. On these pleas, certain amendments to the written statement are suggested.

5. The learned counsel has argued at some length that for a just decision of the case it is necessary that the amendments in question should be allowed. He has even contended that the trial Court has failed to perform its duty under the provisions of Order X, rule 1 and Order XIV, rule 3 of the Civil Procedure Code inasmuch as the Court framed the issues on the basis of pleadings which were not clear and complete, with the result that essential points, have been left out from determination. In order to elucidate the principles which should apply in the case of applications for amendment of the pleadings, the learned counsel has referred us to the case of Muhammad Fakirullah Mia v. Bimalendra Nath Maitra and others (P L D 1961 Dacca 254). It was observed in that case that‑ "There is no bar to allow an amendment in a proper case at the appellate stage. All rules of Court are nothing but pro visions intended to secure the proper administration of justice it is therefore, essential that they should be made to serve and be subordinate to that purpose, so that full power of amendment, must be enjoyed and should always be liberally exercised . . . . ." He also referred to the case of Firm Sriniwas Ram Kumar v Mahabir Prasad and others (A I R 1951 S C 177), to show that there was nothing its the Civil Procedure Code to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. This presumably was intended to forestall any objection to the effect that the defendant‑appellant had adopted, two inconsistent pleas, namely, that he was an agriculturist tenant and entitled to the rights and privileges pertaining thereto, or in the alternative that he was in adverse possession of the suit land.

6. Another observation made in this case by the Supreme Court of India, is also relied upon by Mr. Hafiz, namely: "Ordinarily the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement, but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant's own plea cannot possibly b 1e regarded with surprise by the latter, and no question of adducing evidence on the facts would arise when they were expressly admitted by the defendant in his pleadings. In such circum stances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to separate suit." It was contended by the learned counsel that in the alleged lease deed, Exh. P. 3/I (on page 70 of the Paper‑Book), produced by the plaintiffs themselves to show the tenancy of the defendant, there is a recital that the defendant would be entitled to receive compensation or neither for the standing crops and the trees on the land and, therefore, the plaintiffs would not be taken by surprise if the claim for compensation was now allowed to be pressed.

7. The learned counsel finally cited the case of Lakshmi Ratan Cotton Mills Co. Ltd. Kanpur v. J. K. Jute Mills Co. Ltd., Kanpur (A I R 1957 All. 311), where on page 316 of the report, the following observations appear: "I would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side, however clumsily or in‑1 artistically the plaint may be worded."

8. We are in respectful agreement with the observations made in these cases regarding the power of the Court to allow amend ment of the pleadings at any stage, and the principles which should apply in such cases, but consider that the present is not a fit case where amendment of the pleadings should be allowed to the defendant‑appellant. We note that the suit was instituted as long ago as the 26th of July 1954, that the written statement of the appellant, was filed on 13‑1‑55, and the present appeal was instituted on 6th of February 1960, but the application for amend ment of the written statement has been presented as recently as 11th of March 1961, that is more than one year of the filing of the appeal, and more than 6 years after filing the written state ment. The pleas raised in the application for amendment are not new, except the one relating to the possible effect of Martial Law Regulation No. 64 on the proceedings in this case. We have formed the impression that the real object of the application is simply to delay the disposal of the present appeal, as the defendant has continued in possession of the suit land for all these years, and presumably hopes to continue if the proceedings are prolonged due to acceptance of the application for amendment. If indeed the defendant considered that any amendment in his pleadings was called for, there is no explanation why he did not move earlier, or in any case, at the time when the appeal was filed in this Court. We also observe that as regards the question of compensation to the defendant, this claim was not raised at all at the trial, and it must be taken to have been abandoned, and cannot be allowed to be revived at this stage, even though it may be based on a docu ment produced by the plaintiffs. In view of the defendant's continued possession of the suit‑land over a prolonged period not only during the pendency of the suit, but also since the passing of the decree against him, we see no reason in equity as well to allow him to agitate the question of compensation at this late stage. For the reasons, we would reject the application for amendment of the pleadings, but leave the question of the effect of Martial Law Regulation No: 64 open, as it is a new law which has been promulgated during the. pendency of the present pro ceedings, and its promulgation could not have been foreseen by either of the parties.

9. Another preliminary objection was also raised by the learned counsel to the effect that the trial Court has changed some of the issues at the time of writing its judgment. This is apparent from observations appearing on page 173 of the Paper‑Book, where the learned trial Judge says that he has re‑arranged some of the issues so as to avoid overlapping. Mr. Hafiz has, however, pointed out that in addition to re‑arranging the issues, the learned Judge has also changed the wording of one of the issues and the onus of proof in regard to another. The issues as originally suggested by the parties, and adopted by the Court, appear on pages 15 and 16 of the Paper‑Book. Issue No. 4 on page 16 as regard the maintainability of the suit of plaintiff No. 1 through her legal attorney, and the burden of proof is on the plaintiffs, whereas the same issue appears at serial No. 8 in the body of the judgment at page 174 of the Paper‑Book and the burden of proof appears to have been shifted to the defendant by posing the question whether‑the suit of plaintiff No. 1 through .her attorney was not maintainable legally. The learned counsel has strenuously urged that the appellant has been prejudiced by this change in the burden of proof. We shall have occasion to deal with this issue later in this judgment but at this stage it is sufficient to say that the issue is really of legal, nature, depending on the interpretation of Order XVI, rule 14 of the Civil Procedure Code, and no difference is made to the parties whether the onus is placed on one or the other.

10. Another issue about which the learned counsel has complained is issue No. 6, as originally framed and re‑numbered in the judgment of the trial Court as issue No.

2. The original issue related to the question whether the appellant was a tenant of the plaintiff, and whether his tenancy was determined by the plaintiff's notice dated 5‑9‑1953. As re‑worded in the judgment of the trial Court, the latter part of the issue has been changed so as to read of plaintiff No. 1 as alleged?""' We find that the issue as re‑worded is in accordance with the' plaint, namely, that the defendant's tenancy was determinable demand, and that it was in fact so determined. Mr. Hafiz was not able to show us as to how the re‑wording of the issue had prejudiced the defendant. On the contrary, it appears to us that the re‑wording of the issue served to clarify the real contest between the parties.

11. Finally, the point is made that the original issue No. 8 was to the effect whether the suit‑property had been in adverse possession of the defendant for over 12 years, but the revised, issue No. 3 in the judgment speaks of adverse possession for 40 years. We have not been able to discover the necessity for this particular amendment, but we find that it was the defendant's own assertion that he had been in adverse possession for 40 years, and it maybe that the Court thought it fit to include that assertion in the relevant issue. However, the change from 12 years to 40 years is of little consequence in view of the finding of the trial Court that adverse possession is not proved at all. We are pre pared to go along with Mr. Hafiz to the extent that if adverse possession of the defendant is proved on the record, then the relevant period will be 12 years and not 40 years, which will hive to be considered in that connection. But we are clearly of the view that the re‑wording or amendment of this issue or of other issues already mentioned, at the time of the writing of the judgment by the trial Court, has not in any way prejudiced the appellant's case, and no justification is made out for interfering with the judgment and decree of the trial Court on this account.

12. On merits, the first contention put forward on behalf of the appellant is that the notice of ejectment served by the plaintiff No. 1 was not in accordance with law as contained in section 106 of the Transfer of Property Act inasmuch as: (a) it did not expire with the last day of the tenancy, and (b) the time allowed was less than 6 months, which is, the statutory minimum in cases of agricultural leases.

13. In connection with this contention, the first point to be noticed is that no plea was raised at all during the trial of the suit regarding the invalidity of the notice. The defendant merely chose to deny the factum of tenancy, but there was no .averment, that the notice was in any manner legally defective. It is clear that a denial of tenancy could not be interpreted to include a denial of the validity of the notice. Mr. Azmatullah, the learned counsel for the respondent No. 2, has, therefore, rightly pointed out that) the appellant is not entitled to raise the question of the validity of the notice of ejectment at this stage. However, we have, for the sake of argument, examined the pleas taken up by Mr. Hafiz, and find that they have no force. In the first place, there is no averment from the side of the defendant‑appellant that his tenancy did not expire on the 9th of March, which was the last date fixed in the notice of ejectment, Exh. P‑3/O (on page 79 of the Paper Book). Mr. Hafiz relies on a general assertion that no agricultural tenancy ever commences or expires on the 9th of March. That thing on the record case did not expire on the 9th of March. There being nothing's in this behalf, we are inclined to accept the contention on behalf of the respondents that the 9th of March should be deemed to, be the last day of the tenancy.

14. As regards the stipulated period of 6 months, Mr. Hafiz relied on the date given in the acknowledgment receipt, Exh. P‑3/P which shows the date of receipt of the notice as 16‑9‑53; and as the period of notice was to expire on 9‑3‑54, the learned counsel has argued that it falls short of 6 months. In this regard; we find that the figure `16' appearing on this acknowledgment receipt is of a very doubtful nature, and it may very well be that the original figure was `6' as asserted by Mr. Azmatullah. The notice is dated 5‑9‑53, and in the normal course of business it can be presumed to have reached the addressee ‑on the 6th September 1953, as it was a question of local delivery in Karachi. Its delivery on the 16th of September 1953, would clearly be very much belated. The two digits composing the figure '16' are written with ink of different intensity, although the digit `1' is of the same intensity and thickness as the digit '9' relating to the month and '53' relating to the year. However, in view of the doubtful nature of the entry in the acknowledgment receipt, we are not prepared to hold that the notice was in fact delivered to the appellant on the 16th of September, and not on the 6th of September. A further fact to be borne in mind in this connection is that if indeed the notice had actually been delivered to the appellant on the 16th of September it can safely be presumed that this objection would have been taken at the very start, in the case it would have been amply clear to everyone concerned that the notice fell short of the prescribed period of 6 months, as required by section 106 of the Transfer of Property Act. As no such objection was taken at any stage of the trial of the suit, we are entitled to presume that the notice was indeed delivered on the 6th, and not on the 16th of September 1953.' We are thus of the view that the eject ment notice served by the plaintiff on the appellant allowed the full period of 6 months, and did not, therefore, contravened the provisions of section 106 of the Transfer of Property Act.

15. Another aspect of this question is that by virtue of section 117 of the Transfer of Property Act, the provisions of Chapter V of the Act which includes sections 105 to 117, do not apply to agricultural leases except to the extent declared by the Provincial Government by notification in the official gazette. An extensive search by this Court and the two learned counsels for the parties has succeeded in unearthing only two notifications issued by the Government of Bombay in the years 1905 and 1910, namely: (1) Notification No. 4201 dated 23‑5‑1905 (page 624 Part I of the Bombay Government Gazette 1905), and (2) Notification No. 434‑A dated 17‑1‑1910 (page 59 Part I of the Bombay Government Gazette 1910). Both these Notifications, however, deal only with the application of the provisions of section 107 of the Transfer of Property Ad regarding the registration of agricultural leases, and have no bearing on the application of section 106 or other sections include in Chapter V of the Transfer of property Act, to areas comprised in the former Province of Sind. Thus the position appears to be that the requirements laid down in section 106 of the Transfer of Property Act in respect of a notice determining an agricultural lease do not apply as a matter of law in the present case.

16. It was, however, contended by Mr. Hafeez, the learned counsel appearing for the appellant, that even if section 106 of the Transfer of Property Act did not apply as a statutory pro vision, the principles embodied in the section were nevertheless applicable to agricultural leases as rules of justice, equity and good conscience, notwithstanding section 117 of the Transfer of Property Act. For this proposition he placed reliance on Nanjappa Goundan v. Rangswami Goundan (AIR 1940 Mad. 410), Sri Gur Preasad Singh and others v. Syed Mehdi Hussain (A I R 1942 Oudh 460) and Narayan Ramchand and others v. Gokuldas Bholadas (A I R 1947 Nag. 48). Mr. Azamatullah, the learned counsel for the respondent No. I, contended that the law laid down in the authorities cited by Mr. Hafeez was no longer good law in view of the observations of the Supreme Court of India in the case of Namdeo Lokman Lodhi v. Narmadabai (AIR 1953 S C 228). The learned counsel particularly referred to the following observa tion of their Lordships: "It is erroneous to suppose that every provision in the Transfer of Property Act and every amendment effected is necessarily based on principles of justice, equity and good con science. It has to be seen in every case whether the particular provision of the Act relied upon restates a known rule of equity or whether it is merely new rule laid down by the Legislature without reference to any rule of equity and what is the true nature and character of the rule."

17. In the case just cited, their Lordships of the Supreme Court of India were dealing particularly with section III (g) of the Transfer of Property Act, in relation to a lease which had been executed before the coming into force of this Act and they came to the conclusion that: "The provision in section III (g) as to notice in writing as a preliminary to a suit for ejectment based on forfeiture of a lease is not based on any principle of justice, equity or good conscience and cannot govern leases made prior to the coming into force of the Transfer of Property Act, 1882 or to leases executed prior to 1‑4‑1930." In a subsequent case decided by their Lordships of the Madras High Court, namely, Eranki Narasimhan v. Penumutcha (A I R 1954 Mad. 739), this principle was extended even to cases where the lease was entered into after the enactment of the amended section 111(g) of the Transfer of Property Act. It is to be noted however that in both these cases the section which came under examination was section 111 (g) and nothing was said about any other provisions of the Transfer of Property Act, and accordingly these authorities are not of direct assistance to the question before us is which relates to the application of the principles embodied in section 106 of the Transfer of Property Act.

18. There seems to be authority for the view that the Courts in this sub‑continent have applied the principles embodied in section 106 of the Transfer of Property Act to agricultural leases as well, even though the provisions of that section had not been specifically applied to such leases by the Provincial Government by means of a Notification under section 117 of the Transfer of Property Act. We may here refer to Demodar Prasad Twari v. Lachimi Prasad Singh and others (A I R 1928 Patna 354), in which the learned Judges cited with approval the following opinion expressed by Sir Lawrence Jenkins in Pratap Narain Deo v. Harihar Singh ((1909) 36 Cal. 927): "The state of the authorities on the question of notice cannot be regarded as satisfactory and, all that we are able to say, sitting as a Division Bench, is that there must be a reasonable notice and that the notice need not necessarily determine the tenancy at the end of the year. But it will be for the final Court of fact, in each case, to determine what is reasonable notice having regard to all the circumstances and whether it would not be reasonable in the circumstances of the particular case for it to determine with the year." It is clear that there is an implicit assumption in this opinion that the principles embodied in section 106 of the Transfer of Property Act are not divorced from the rules of justice, acuity and good conscience, but at the same time it is stipulated that the rules are not to be applied strictly. Again in Karam Chand v. Amar Nath Mohson (A I R 1933 Lah. 377) and Maulvi Faiz Bakhsh v. Syed Shadi Shah (P L D 1956 Lah. 261) the argument proceeds on the basis that the requirement of reason able notice is in accordance with the principle of equity and justice. It seems to us therefore that the trend of authority has been that the principles embodied in section 106 of the Transfer of Property Act are not to be regarded as being opposed to principles of justice, equity and good conscience, but at the same time they are not to be applied in all their rigour to agricultural leases, in the absence of a notification in this behalf under section 117 of the Transfer of Property Act. That being the case] even if there was a technical defect in the notice served by the landlord on the appellant in this case, the defect would not be fatal to the ejectment proceedings, as it is clear that a reasonable notice was in fact given to the appellant for determining his tenancy.

19. It would be seen, therefore, that in the first place no con tention was ever raised by the appellant during the trial regarding the invalidity of the ejectment notice served on him by the land lord; in the second place even if the contention be allowed to be raised at this stage, the notice complied with the requirements of section 106 of the Transfer of Property Act; in the third place even if there was any technical defect in the notice, it would not invalidate the ejectment proceedings for the reason that section 106 of the Transfer of Property Act does not apply to agricultural leases in the former Province of Sind as a matter of law but only its principles are to be applied, and viewed from the angle the notice in the present case would be reasonable and proper.

20. While we are on the subject of the validity of the notice of ejectment, we might briefly dispose of an argument raised by Mr. Azmatullah on behalf of plaintiff-respondent No. 2, that the present was a case where the tenancy stood forfeited under the provisions of section 111 (g) of the Transfer of Property Act, because the appellant had denied the tenancy, and repudiated the landlord's title by setting himself up as a person in adverse posses sion of the property. The learned counsel drew our attention to the written statement filed by the present appellant in the year 1950 in Suit No. 124 of 1950 of the Karachi Small Causes Court brought against him by plaintiff No. 1 for the recovery of' rent of this property. The plaint in that suit is Exh. P. 3/K at pages 107 and 108 of the Paper‑Book. In paragraphs 1 and 2, the assertion is made that the plaintiff is the owner of the plot and the defen dant is a tenant under her. In the written statement filed by the appellant, which is Exh. P. 1/ B on pages. 109 and 110 of the paper‑book, the appellant took the stand that paias. 1 and 2of the plaint were not admitted, and the plaintiff be put to 'strict proof of the same. In paragraph 3 of the written statement, the appellant asserted that "there are claimants who claim the ownership of the said plot on the grounds of adverse possession. This defendant has paid rent to them. "Mr. Azmatullah rightly contended that this written statement filed by the present appellant in 1950 amounted to a denial of the tenancy and also of the title of the landlord, and for this reason the tenancy of the appellant was clearly ]able to determination by forfeiture under clause (g) of section 111 of the Transfer of Property Act. Basing himself on the two authorities already noticed in this judgment, viz.; Namdeo Lokman Lohdi v. Narmadabai and Eranki Narashimhan v. Penumutcha Mr. Azamatullah argued thatno notice of ejectment was necessary in such a case, and the lease stood auiomatically determined. But whether or not a notice was necessary under section 111 (g) of the Transport of Property Act, the present suit was not instituted on that basis and we cannot permit the plaintiff to change the basis of the suit at this late stage. The result is that we find no force h in the contention put forward by Mr. Azmatullah on behalf of the plaintiff‑respondent that this is a case of termination of tenancy by forfeiture. However, this finding does not advance the appellant's case whose ejectment is being sought in this case on the basis of a notice served under the provisions of section 106 of the Transfer of Property Act, and which notice we have already found to be in order.

21. The next point agitated by Mr. Hafiz is that the tenancy of the appellant was not terminable on demand as held by the trial Court. Strictly speaking, it is not necessary to determine this issue for the reason that the landlord served six months, notice of ejectment on the appellant, and was not making use of any "contract to the contrary" mentioned in section 106 of the Transfer of Property Act. As, however, both the sides have addressed arguments on this point, we may briefly state that we are in agreement with the findings of the trial Court that the tenancy of the appellant was terminable on demand. For this purpose we rely on the appellant's letter dated 27‑5‑1943, which is Exh. P‑3/I, addressed to plaintiff No.

1. This is a short letter, and may be reproduced here: " 27‑5‑1943. Reference your .letter of today's date. I am occupying the above plot as a tenant and agree to pay you yearly rent of Rs. 25 for your 0‑8‑0 as share. I have no claim on the above plot except the standing crop and trees lying on your half portion for which I should be paid a reasonable Nibher in case whenever I am called upon by you or your future buyers to give vacant possession."

22. This appears to be the only document on record purport ing to show the terms of the tenancy between plaintiff No. 1 and the appellant. It will be seen that in this letter the appellant clearly admits that he is occupying the land as a tenant, that he has no claim on the land except the standing crop and the trees, for which he should be paid a reasonable nibher whenever he is called upon to give vacant possession to the landlord. We are of the view that this letter clearly comes within the purview of the phrase "a contract to the contrary" employed in section 106 of the Transfer of Property Act. This letter gives the impression that the tenancy is terminable on demand notwithstanding the strenuous argument urged by Mr. Hafiz that the word "whenever" used in the last part of this letter, did not refer to the appellant's liability to vacate on demand, but only indicated his right to com pensation at the time of ejectment. It seems to us that the sentence in question 'is capable of both the meanings, and there is no reason why we should not interpret it as contemplating that the landlord was entitled to demand vacant possession when ever he wanted, and that on such demand being made, the tenant would be entitled to compensation for the specified items, namely, the standing crop and the trees. The learned trial Judge is, there fore, right in holding that the appellant's tenancy was terminable on demand. On this view of the matter as well, it would be seen that even if the notice fell short of the period of 6 months indicated in section 106 of the Transfer of Property Act, or even if it did not expire on the last day of the tenancy, the notice would still be valid as the appellant was under an obligation to vacate the land on demand.

23. It was next contended for the appellant that he had acquired rights of an occupancy tenant under section 83 of the Sind Land Revenue Code, by reason of the fact that his tenancy extend ed back over a period of 40 years, that there was no satisfactory evidence of its commencement, and there was no evidence of the period of its intended duration, with the result that the tenancy became co‑extensive with the duration of the tenure of the land lord, and all those who derived title under him. It will be noticed that in the first place such a contention was not raised at the trial, and we have already refused to allow the appellant to amend his pleading at this late stage. In the second place, even if the appellant were permitted to raise this plea in second appeal, it would stand negatived by his own document. Exh. P. 3/I. where the appellant has clearly admitted that he was an ordinary tenant, and would clear out whenever required to do so, subject of course to payment of Nibher. The learned counsel for the appellant urged before us that we should not place reliance on the document Exh. P. 3/1 as it was a forgery, or at any rate, it was obtained by practising fraud on the appellant. The fraud alleged is that one Meherali P. W. 7, who worked as a broker in real estate and who belonged to the brotherhood of the appellant, approached the appellant and obtained this writing from him on false repre sentations. We find that this plea was raised in the trial Court and rightly repelled. Meherali appeared as P. W. 7, but no ques tions were asked from him to show that he practised any fraud on the appellant. The appellant even adopted a dishonest stand by refusing to admit his signatures on this docu ment. The plaintiffs had to summon handwriting experts to establish the identity of the signatures. Before us, Mr. Hafiz was good enough not to challenge the signatures of the appellant on Exb. P‑3/I. In the face of this document, which has rightly been held to have been executed by the appellant, no question arises of any occupancy rights having accrued in favour of the appellant. He was thus clearly liable to be ejected as a tenant‑at‑will.

24. The next contention put forward was that the plot was not an open plot but agricultural land, and further that it was an undivided plot, and the plaintiffs could not claim possession of a specified portion thereof. The suit has all along proceeded on the basis that the property was agricultural property. It is, therefore, not necessary for us to say anything about the contention that it is not an open plot. As regards the question of the division of the property between its several owners, there is no doubt that fn the sale‑deeds executed in 1943 in favour of plaintiff No. 1, the vendors sold their respective shares in the entire undivided area, but it is the assertion of plaintiff No. 1 that in 1946 she obtained a private division of the plot between herself and the other owners, she getting half the land, which is now the subject matter of the suit. In the notice of ejectment served on the appellant, the land is described as half wasterly portion of the entire plot in question. We are of the view that there is no reason to disbelieve the assertion of the plaintiff as regards the private partition of the property between her and the other owners in 1946, and further that the half wasterly portion of the entire plot is clearly capable of being separated and delivered to the plaintiffs. This is, therefore, not a case where the share of the plaintiffs is not separate. Mr. Azmatullah sought support for the factum of partition of land from the sale‑deed, Exh. P‑3/E executed by plaintiff No. 1 in favour of plaintiff No. 2 in the year 1957, during the pendency of the suit between the parties. Taken by itself this sale‑deed Exh. P‑3/E could not have been accepted as evidence of partition of the land as it was created during the pendency of the proceedings, but in the present case it only serves to corroborate tee assertion made by the plaintiff No. 1 in 1954 when she filed the present suit and clearly described her share of the property as the wasterly half portion of the entire plot.

25. We next take up the contention of Mr. Hafiz to the effect that this suit instituted by plaintiff No. 1 through her legal attorney was not maintainable inasmuch as the provisions of Order VI, rule 14, C. P. C., were not fulfilled. This rule prescribes that "Every pleading shall be signed by the party and his pleader (if any) Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by the person duly authorised by him to sign the same or to sue or defend on his behalf." It is the contention of Mr. Hafiz that as the plaint in this case is not signed by plaintiff No. 1, she should have put in an applica tion giving reasons for her inability to sign the plaint, and only then could her attorney legally sign the same. There is no autho rity to support the contention that this rule contemplates a formal application by a party who is unable to sign the pleadings. But even if that were the case; the omission is of a minor nature and we could even now get the plaint signed by the plaintiff No. 1, in addition to the signatures of her legal attorney which already appear on this document. The objection is purely of minor technical nature which has no .bearing on the merits of the case and is overruled.

26. The learned counsel for the appellant did not press before us with any seriousness the claim put forward at the trial to the effect that the appellant was in adverse possession of the land for a period of 40 years. Even if he had done so, it would have been of no avail in view of the overwhelming evidence on the record that the appellant was throughout in occupation of the suit land as a tenant. The latest evidence in this behalf is docu ment Exh. P‑3/I to which repeated reference has been made in this judgment. Before this, there were at least 2 decrees against the appellant for the recovery of rent in which it was clearly held that the relationship of landlord and tenant existed between plain tiff No. 1 and the appellant. We need therefore say no more on this point, than to affirm the findings of the trial Court that the appellant has failed to prove that he was in adverse possession of the suit land for any length of time.

27. We now take up the last contention raised on behalf of the appellant that in view of the promulgation of the West Pakistan Land Reform Regulation, 1959 (Martial Law Regulation No. 64), the appellant was not liable to ejectment. Mr. Hafiz relies mainly on the provisions in this Regulation, namely, para graphs 23 and

26. Paragraph 23 is to the effect that a joint holding with an area equal to or less than that of a subsistence holding shall in no circumstances be partitioned. A subsistence holding is defined in clause 11 of paragraph 2 as meaning an area of 16 acres of land in the Federal Capital and in Khairpur divi sions, and half a square or half a rectangle or twelve and a half acre of land, whichever is more, elsewhere. As the aggregate area of the plot in question is about 20,700 sq. yards it comes to about 4 acres only, out of which half the area is the subject‑matter of the present suit. It is the contention of the learned counsel for the appellant that the plot cannot be subdivided with the result that possession of half the area cannot be delivered to the plain tiffs. This argument, however, overlooks the fact that paragraph 23 has not been made retrospective in nature, and on the face of it does not purport to set aside partitions which have already taken place before the promulgation of the Regulation. We have already held that in the present case the land was privately parti tioned between plaintiff No. 1 and the other owner as long ago as 1946. The case is therefore not covered by paragraph 23 (1) of the Regulation, even if the Regulation as such applies to this property a question with which we shall deal presently.

28. Paragraph 26 of the Regulation contains transitional provisions and is to the following effect: "Until any order is made under this Regulation for the resumption or utilisation of land, no tenant shall be ejected unless it is established in a Revenue Court that he has: (a) failed to pay rent ; or (b) used the land in a manner which renders it unfit for the purpose for which it was let ; or (c) failed to cultivate the land without sufficient cause ; or (d) sublet his tenancy ; or (e) failed to cultivate the land, where rent is payable in kind in the manner or to the extent customary to the locality ; and in the meantime, subject to the porvisions of this Regula tion, the landlord and the tenant shall continue to enjoy the rights and discharge the obligations as heretofore. Explanation.‑In this paragraph, a tenant means a person who cultivated his tenancy in Kharif 1958, or Rabi 1958‑59, which ever is later."

29. It seems to us that in order to attract the provisions of paragraph 26, two essential pre‑requisites must be satisfied with regard to the nature of the property, namely (a). that the property should be land within the meaning of the Regulation, and (b) it should be land of the nature with regard to which an order is likely to be made for its resumption, or utilization under the Regulation. If the property in suit is not land within the meaning of the Regu lation, then it is clear that none of the provisions of the Regula tion will apply at all. If the property falls within the definition of land given in the Regulation, but is such that no order is likely to be passed at all in accordance with the provisions of the Regula tion, then the transitional provisions of paragraph No. 26 cannot be invoked, as this paragraph opens with the words : "Until any order is made under this Regulation for the resumption or utilization of the land . . . . . ." In other words, paragraph 26 is aimed at maintaining status quo with regard to land which is likely to be resumed or utilized under the Regulation, but in regard to which the necessary orders have not yet been passed.

30. The term "land" is defined in clause 5 of paragraph 2 as meaning "land including evacuee land, which is not occupied as the site of a town, village, factory or industrial establishment, and is occupied or has been and can b‑‑ let for agricultural pur poses or for purposes allied or subservient to agriculture, such as forests or pastures or livestock or poultry farms and includes also the sites of building and other structures on such land." The first part of the definition is negative in nature and is intended to exclude land of certain categories, whereas the second part is positive to the effect that it should be occupied or capable of being let for agricultural purposes etc. In other words, it is not enough for any particular land to be brought within the definition to be such as is occupied or has been and can be let for agricul tural purposes, but .it should also be such that it does not fall within the exceptions mentioned in the first part of the defini tion. In the present case there is' no doubt that the suit‑land is occupied for agricultural purposes, but it is contended by Mr. Azmatullah that it is comprised in the site of a town and for that reason stands excluded from the definition of land given in the regulation. The term "site of a town" is not defined anywhere in the Regulation. The dictionary defines the word 'site' as "ground on which town or building stood, stands or is to stand". Therefore, besides land on which a town stands, any area which is so situate that on any reasonable hypothesis a town is likely to be extended to it, should also be regarded as part of the site of a town. It is common ground that the land in suit is situated in that part of Karachi town which is known as Garden West. This locality lies between two other localities known as Tin Hati and Nazimabad, which are both parts of Karachi Town. The land is therefore situated right in the municipal area of Karachi, and all around it building operations for residential, commercial and industrial purposes are going on. The plaintiff No. 2 has also bought this land for a commercial or industrial, purpose, namely, the construction of a workshop and garage. Keeping in view the ordinary meaning of the words "site of a town", the actual location of the property in suit, and the purpose for which it has been acquired by plaintiff No. 2, we are left in no doubt whatsoever that the suit property‑ is that land which is part of the site of a town, and for that reason it must be excluded from the definition of `land' given in paragraph 2 (5) of the Regulation, although at the moment it is being used for agricul tural purposes. That being so, the property in suit is not at all subject to any of the provisions of Martial Law Regulation No. 64.

31. Even if for the sake of argument we were to assume that the property falls within the ambit of the definition of the term "land" given in the Regulation, we find that it would be land of a category or nature which would not be liable to resumption or utilization under any of the provisions of the Regulation, Para. 8 of the Regulation prescribes a limit on individual holdings, namely, that "no person shall at any time own or in any capacity possess land in excess of 500 acres of irrigated land or 1,000 acres of un-irrigated land or irrigated and un-irrigated land, the aggregate area of which exceeds 500 acres of irrigated land, one acre of irrigated land being reckoned as equivalent to two acres of un-irrigated land, and any reference in this Regulation to an acre of irrigated land shall be construed accordingly." Paragraph 9 of the Regulation gives exceptions to this rule, but we are not concerned with them in the present case. Under paragraph 15, the Land Commission is authorised to obtain decla rations from persons who own or possess land in excess of 500 acres of irrigated land. Para. 16 authorises the resumption of land in excess of the area pemissible for retention under Part III of the Regulation, namely, paragraphs 8 and

9. Para. 19 of the Regulation contemplates that excess land resumed under Para. 16 shall in the first instance be offered for sale to the tenants who are in cultivating possession of it, and any such land not sold to such tenants shall be offered for sale to other persons. It will be seen that the Regulation is intended to deal with holdings of land in excess of 500 acres of irrigated land. In the present case the holding of the plaintiffs amounts to about 2 acres only, and is thus clearly not liable to be dealt with for resumption or utilization under any of the provisions of the Regulation. If that is so, then the question of invoking the transitional provisions of para. 26 of the Regulation would not arise in respect to this land. In other words, a tenant of this land could not seek protec tion under paragraph 26 of the Regulation.

32. The result, therefore, is that in our view Martial Law Regulation No. 64 has no effect on the proceedings for the eject ment of the appellant, inasmuch as in the first place the property in suit does not fall within the definition of `land' as given in clause 5 of paragraph 2 of the Regulation, and even if it were to be regarded as falling within the definition, the area is so small that no order of resumption or utilization as envisaged by para graphs 16 and 19 is liable to be passed in respect thereof, with the consequence that paragraph 26 which protects a tenant from eject ment, cannot be invoked in this case.

33. As we have found all the contentions raised on behalf of the appellant to be without force, the present appeal fail and is hereby dismissed with costs. A. H. Appeal dismissed.