P L D 1962 (W (PLP)

(10) To what mesne profits, if any, are plaintiffs entitled (11) Is there any valid custom by which the defendant is entitled to `Niber' ? (12) If so, to what `Niber' is the defendant entitled ? (Covers para. 7 of written statement dated the 4th November 1949). (13) To what reliefs, if any, are the plaintiffs entitled ? (14) General. Out of these issues the appellant at the final hearing gave up issues Nos. 3, 6, 8, 9, 11 and

12. The learned Judge on the Original Side, therefore, had only to decide issues Nos. 1, 2, 4, 5, 7,10,13 and

14. At this stage it may be noted that originally the suit was filed by Chandurbhan Wadhumal and Gobindsing as Receivers appointed in Suit No. 64 of 1940 pending in the Court of the First Class Sub‑Judge, Hyderabad, Sind. Later on Chandurbhan Wadhumal, plaintiff No. 1, was discharged as Receiver and Gobindsing, plaintiff No. 2, was permitted by the Hyderabad Court to continue the suit pending in the Chief Court of Sind. In the trial Court the respondents produced Exh. 17, the order of Mr. Ghulam Hyder, the then First Class Sub‑Judge, Hyderabad, dated the 14th of January 1953 appointing plaintiff No. 1 the Official Receiver and Gobindsing, plaintiff No. 2, to act as joint Receiver of the property in the suit before him; Exh. 18, per mission of the Hyderabad Court dated the 19th of September 1945 to file a suit against the appellant for ejectment from the property in dispute and Exh. 20, another order of the Mirpurkhas Court dated the 12th of April 1954 discharging plaintiff No. 1 from the office of joint Receivership and permitting plaintiff No. 2 to continue the proceedings against the appellant in the then Chief Court of Sind. The learned trial Judge, on the basis of these documents, held that plaintiff No. 2 was competent to continue the suit as Receiver appointed in Suit No. 64 of 1940 and decided issue No. 4 in favour of the respondents. This finding is not challenged in this appeal. On merits Qadeeruddin Ahmed, J. dealt with issues Nos. 1 and 2 together. On the evidence led before him he found that the property in dispute originally belonged to Dewan S. C. Shahani and was later on mutated on his death in the name of his sons. He held Mehtabsing, Partabsing and Shersing as the owners of the land in dispute. He also dealt with issues Nos. 5 and 7 together and found that the suit was not barred under Article 1.42 of the Limitation Act. He further found that the appellant had trespassed on Vie property in dispute. Accordingly Qadeeruddin, J. on these findings, decreed the suit for ejectment, but dismissed the claim for mesne profits for lack of evidence. There is no formal order but we take it that that counter‑claim filed but the appellant for this reason must be deemed to have been dismissed. Kassim appellant challenged these findings in the appeal before us. He died during the pendency of the appeal and now his legal representatives are proceeding with this appeal. In this appeal Mr. Abbasi, the learned counsel for the appel lant, has attacked the finding of the learned trial Judge only on two grounds: firstly, that the learned trial Judge's finding that the owner of the property in dispute was late Dewan Sahibsing Chandasing Shahani and it was inherited by Partabsing, Mehtabsing and Shersing, his three sons, was not based on sufficient evidence ; and secondly that the finding of the learned trial Judge that the appellant had trespassed on the property in dispute was erroneous because he was occupying the premises in dispute as sub‑tenant of one Hussain Muhammad who admittedly was the tenant of the property in dispute. So far as the first question is concerned, it presents no difficulty. The respondents claim that the property in dispute originally belonged to Dewan Sahibsing Chandasing Shahani is borne out by ample evidence on the record. The respondents produced Exh. AA‑1, entry of the record of rights in the Muta tion Register, which shows that on the death of Dewan Sahibsing the landed property in dispute was mutated in favour of Dewan Partabsing, Mehtabsing and Shersing in the year 1934‑

35. The appellant also produced certain receipts of the payment of the Land Revenue assessment Exhs. 12, 13 and

14. These documents show that he paid the assessment on behalf of Dewan Partabsing Sahibsing. Apart from that the respondent examined two witnesses: P. W. 1 Gobind Singh and P. W. 2 Ahmed Aslam the Tapedar. P. W. 1 Gobind Singh is the son of Partabsing who stated that the four survey numbers in dispute in Deh Thano, Tapo Malir, Taluka Karachi, were owned by Dewan Sahibsing his paternal grandfather and after his death these survey numbers were mutated in the name of his three sons. To the same effect is the statement of P. W. 2 Ahmed Aslam the Tapedar. The appellant produced a document (Exh. 16‑A) purported to be an agreement entered into between one Muhammad Hussain and Usman son of Muhammad Makrani Baloch relating to the property in dispute. In this document also there is an important admission that the laud in dispute stands in the Khata of Seth Dewan Partabsang. The appellant in rebuttal has produced no evidence and has only relied on the change of the Record‑of‑Rights on the 9th of November 1948 vide Exh. AA‑

1. This document shows that after the institution of the suit in the then Chief Court of Sind, the appellant applied for the change in the record‑of‑rights in his own name on the grounds that he was in occupation of the property in dispute and the original Khatadar had migrated to India. These pro ceedings were ex parte and the learned Revenue Officer, who finally ordered a change in the Record‑of‑Rights, clearly mentioned that this change is effected subject to any order passed by the Civil Courts. The appellant has led no other evidence and has not shown to whom this property belongs or there is some other person who has a superior right as against the respondents. The learned trial Judge has accepted this evidence and held that the respondents have sufficiently established their title to the property. Mr. Abbasi contended that the respondents should have produced some title‑deed in their favour In respect of the lands in dispute and in the absence of such a document the entries in the Record‑of‑Rights cannot be of much help to establish their title. So far as agricultural lands are concerned, very seldom their transfer is supported by any sale deed or transfer deed. Ordinarily such transfers, and particularly the transfer made in favour of Dewan Sahibsing which is a very old one, are not expected to be supported by any transfer‑deed or sale‑deed. Under section 135 (j) of the Bombay Land Revenue Code an entry in the Record‑of‑Rights, and a certified entry in the register of mutations shall be presumed to be true a until the contrary is proved or a new entry is lawfully substituted therefor. No doubt in this case a new entry was substituted but it is quite plain to us that this was done in an ex parte pro ceeding in the absence of the respondents and no importance can be attached to such an entry. In the case of Gangabai and others v. Fakirgowda Somaypagowda Desai and others (AIR 1930 P C 93), the Judicial Committee held that entries made in the Revenue Records are not in any way conclusive, but they are evidence of the facts recorded therein and as such are relevant under section 35 of the Evidence Act. Mr. Abbasi referred us to the case of Nageshar Bakhsh Singh v. Ganesha (47 I A 57), to show that the importance of the entries in the Record‑of‑Rights may vary with circumstances, and that they are by themselves not conclusive evidence of the facts which they purport to record. We are in respectful agreement with the observations of the Privy Council in the above mentioned case. But the question for consideration in this case is, has the appellant in the case before us led any evidence to show that the title vests in some persons other than Dewan Sahibsing and his three sons ? The appellant has not led any evidence on this question and has not shown that the property in dispute is owned by some other party. In such a state of the evidence it appears to us that Qadeeruddin Ahmed, J., was perfectly justified on the evidence before him to hold that the respondents have been able to establish the title of the property in favour of Dewan Sahibsing and his three sons. This objection therefore must fail. The most important question for consideration in this case is whether the respondents were able to make out a case of trespass against the appellant before the learned trial Judge. Trespass really speaking means that any person or party has obtained possession of any property unlawfully. It will be noticed that the respondents before the learned trial Judge relied on a document produced by the appellant, Exh. 16‑A executed by Muhammad Hussain in favour of Usman son of Muhammad Makrani Baloch. The admissibility of this document was con tested before Qadeeruddin Ahmed, J., but under section 36 of the Stamp Act this objection is no longer open to the appellant. Section 36 of the Stamp Act lays down that when' an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the Instrument has not been duly stamped. Admittedly this document was admitted in evidence without any objection by the appellant in the trial Court. The objection about its admissibility was raised during the course of the arguments. In these circumstances it is not open to the appellant to contest the admissibility of this document before us, except as provided 1n section 61 that it is not duly stamped. Now, from this document it is quite clear that Muhammad Hussain son of Mahmood Makrani Baloch was in occupation of the lands in dispute in the year 1940 since 1921, that he gave these lands to Usman son of Muhammad Makrani for cultivation for ever with effect from the 1st of May 1940 for a consideration of Rs. 4,000 on the following conditions:‑ (1) Usman will pay the land assessment for the year 1939‑40. (2) That if anyone disputes with Usman with regard to the possession of the land, he will be responsible. (3) Usman will pay land assessment every year. (4) Apart from the question of land assessment, cultivator Usman will settle about the lease money with the owner of the land. In the earlier part of this document it is clearly mentioned that the land in dispute stands in the name of Seth Dewan Partapsing son of Sahibsing. Thus this document fully establishes that Muhammad Hussain was in occupation of the lands in dispute in the year 1940. The evidence produced on behalf of the respondents shows that Muhammad Hussain was the tenant of the respondents and they had leased out the property to him. P. W. 1 Gobindsing stated in his evidence before the Official Commissioner that‑ "During the life‑time of my grandfather one Hussain was cultivating these survey numbers. Yes, he was paying Rs. 100 per year as lease money and regularly used to give us, fruits and vegetables being the produce of this land by way of "Dali". Yes, Hussain continued to cultivate these lands after the death of my grandfather. Yes, after the death of my grandfather Hussain did pay lease money and `Dali' to my father or my grandmother who was alive. Yes, Hussain did make payments of lease money and 'Dali' in my presence on certain occasions." Thus, on this evidence, it is fully established that Muhammad Hussain who transferred his right in the land in dispute to Usman under Exh. 16‑A was the tenant of the respondents and their predecessor-in-interest. This witness further admitted in cross-examination as under: "Except the names of Hussain and after him Kassim Kumbar who took possession from Hussain there were no other lessees of the property in suit." He further stated: "Eversince my memory goes Hussain was lessee of the suit property." In examination‑in‑chief he stated:‑ "No, Hussain when he gave away the lands to the defendant he did not consult us." It is thus quite clear on the evidence of P. W. Gobindsing, the plaintiff in this case, that Hussain transferred the possession of the lands in dispute to the appellant. P. W. 2 Ahmed Aslam produced before the learned trial Judge Exh. AA‑1, proceedings of the mutation effected in favour of the appellant held on 9th November 1948. It appears from these proceedings that Usman, the nephew of the appellant, appeared before the Revenue authorities and made a statement to the effect that on behalf of his uncle Kassim he had purchased the rights in the said survey numbers for Rs. 4,000 from Hussain son of Mahmood Makrani and relied in this respect on the agreement dated the 1st of May 1940. If this statement is read with the statement of P. W. 1 Gobindsing, it explains fully the circumstances in which Hussain transferred his right and interest in the property to Kassim, the ancestor of the appellant in this case. Mr. Abbasi's contention that the transfer by Muhammad Hussain in favour of Usman was for the benefit of Kassim and that the real transferee under the agreement of 1st May 1940 (Exh. 16‑A) was Kassim is fully borne out by the evidence on the record. On this evidence it is proved beyond doubt that the Appellants were either assignees or sub -lessees of Muhammad Hussain the tenant of the respondents. Mr. Abbasi therefore contended that In the face of the above mentioned evidence the learned trial Judge was not justified in holding that Kassim was a trespasser and in unlawful occupation of the lands in dispute. He referred us to section 108 (j) of the Transfer of Property Act which permits the lessee to sublet the demised property and contended that in any circumstance the learned trial Judge could not decree the suit for possession unless and until the tenancy of Muhammad Hussain was terminated by a valid notice. In Pleasant, Lessee of Hayton v. Benson (104 E R 590) it was held that as long as the original lease continues the lessor cannot determine the sub‑lease by notice to quit to the sub‑lessee. The learned counsel further referred us to Habul v. Kashimani Debi (5 C L J 205), that an assignee of a lease is entitled to a notice under section 106 of the Transfer of Property Act. The provision of section 106 of the Transfer of Property Act apply to agricultural leases as they were extended under section 117 of the Transfer of Property Act to Sind. Mr. Jamiatrai, the learned counsel for the respondents, contended that the assignment or the sub‑lease of the lands in dispute in favour of Kassim by Muhammad Hussain is not satisfactorily proved. But on the evidence referred to above we entertain no doubt on this particular aspect of the question. The learned counsel further referred us to Boman Abadan Irani v. K. S. Jehangir J. Mobed and another (P L D 1960 Kar. 276), a Single Judge decision, showing that in Pakistan there can be an assignment of lessees' right, and at best Kassim's position was that of an assignee. This view is opposed to the Bench decision Mohsin and Tahir v. Feroze Nana Ghulamally and another (P L D 1958 Kar. 32). In this case, however, we are not concerned with the question whether the transfer effected under Exh. 16‑A is an assignment or a sub‑lease. In either case it was necessary for the respondents to terminate the tenancy of the assignee or the original lessee before filing the suit for possession in respect of the property in dispute. As a matter of fact in this case the respondents did not join Muhammad Hussain, the original lessee, as party to the suit, who was a necessary party. But unfortunately this question was not raised by the appellant before our brother on the original side. Thus the learned Judge on the original side had expressed no opinion on the question whether Kassim could be evicted without determining the tenancy of Muhammad Hussain. We are satisfied, on the evidence on the record, that Kassim was either an assignee or a sub‑lessee of the property in dispute. In these circumstances the appellants cannot be held to be trespasser. In our opinion in either case it was incumbent on the respondents before filing the suit for ejectment against Kassim to terminate the tenancy of Muhammad Hussain, their lessee. As the tenancy of Muhammad Hussain had not been terminated, in law the respondents are not entitled to evict the appellants. On the view we have taken of the matter, the decree for ejectment cannot be upheld by us. In the result, the appeal is allowed with no order as to costs. K. B. A. Appeal accepted.