P L D 1961 (W (PLP)

(a) Did the defendant occupy the premises in question during the relevant period ? and (b) If so, was the plaintiff's suit within time?

8. The first question is undoubtedly one of fact and could not ordinarily be agitated in second appeal, but unfortunately, the lower Appellate Court, has, in our view, left the matter undecided. It cannot, therefore, be said that in this case, there is a conclusive finding of fact on the question of the defendant's occupation. The learned District Judge, while criti cising the approach of the trial Court to this question, did not himself consider the evidence available on the record, as he should have done. He observed that the trial Court had drawn a presumption against the defendant, because the latter failed to prove that he was occupying only a Ration Stand and not the Beef Market. According to the learned District Judge the onus of proving that the defendant was in possession of the premises during the period in suit was upon the Cantonment Board and not upon the defendant. Having laid down this proposition of law, the learned District Judge should then have proceeded to examine whether the plaintiff had discharged this onus or not, but, as already observed, he left the matter vague by concluding that the lower Court was not justifies in holding the matter proved in favour of the Board on account of the weakness of defence. The question of possession was an important question in the case and it was not enough for the lower Appellant Court to merely criticise the findings of the trial Court. It was its duty to give a finding of its own if it was not in agreement with the findings of the trial Court. This not having been done, there is no finding of fact given by the learned District Judge which would be binding on us in second appeal.

9. It is admitted by the defendant that he was an old tenant of the premises in suit since 1935, and his previous lease was to expire on 31st of March 1947. He has, however, asserted that during the currency of the previous lease for the year 1946‑47 he was dispossessed from the Beef Market in Murree Cantonment, as the same was dismantled and put under reconstruction and not offered to him for re‑occupation until June 1947 when he refused to take it. He produced two witnesses namely, Abdul Ghafoor (D. W. 1) and Karam Khan (D. W. 2) to support the assertion that he had vacated the Murree Cantonment Beef Market during the year 1946 and was carrying on his business in another premises known as the Ration Stand. A perusal of the evidence of these two witnesses clearly shows that they had no positive knowledge as to when was the defendant dispossessed from the Murree Cantonment Beef Market and whether he was occupying the Ration Stand in addition to the Beef Market or in lieu of it. The question, there fore, has to be decided on the basis of the other evidence available on the record.

10. It has already been indicated that the premises in suit comprise the Beef Markets situated at two places, namely, Murree Cantonment and Upper Topa. Even the defendant. Himself says nothing about the premises at Upper Topa and the entire controversy centres round the premises in Murree Cantonment. The defendant was an old tenant since 1935 and it is, therefore, legitimate to hold that he continued in possession of the Beef Market at Upper Topa until the expiry of his previous lease which was to end on the 31st of March 1947. He does not allege dispossession from the Beef Market at Upper Topa. On the contrary, there is evidence of Lal Khan (P. W. 1) who is an Inspector of the Cantonment Board, Murree, that the defendant was in possession of the Beef Markets in Upper Topa and Murree. It is true that this official has stated in cross‑examination that the possession was not delivered by him to the defendant, but by an Inspector named Mool Raj, but as the defendant was an old tenant of these Markets, the question of fresh delivery of possession to him is not important. We shall take up the question of the Beef Markets in Murree Cantonment presently, but as regards the Beef Market in Upper Topa, we have no difficulty in holding that as an old tenant the defendant continued in occupation, that he was never dispossessed from these premises during the relevant period and that the evidence of Inspector Lal Khan positively establishes that the defendant was in occupation of the Upper Topa Beef Market during the year 1947‑48, which is the subject‑matter of the present suit.

11. As regards the Beef Market in Murree Cantonment, a complication is created by the fact that the defendant was also in occupation of some other premises, known as the Ration Stand, for which he has paid some rent to the Military Authori ties. It is asserted by Raja Said Akbar, the learned counsel appearing for the defendant, that if the defendant had not been made to surrender possession of the Beef Market in Murree Cantonment during the currency of the previous lease, there was no point in his renting the premises, known as the Ration Stand, at a monthly rental of Rs.

100. The learned counsel has further pointed out that the defendant is a poor butcher who could not afford to rent out additional premises unnecessarily. We agree that there is evidence on the record that the defendant was occupying the premises known as the Ration Stand, but we are not persuaded that this fact by itself also proves that the defendent was out of possession of the Beef Market in Murree Cantonment. On the contrary, the evidence on the record clearly establishes that in fact he was also in possession of the Beef Market.

12. We have already referred to the evidence of Lal Khan who has made a positive statement that the defendant was in possession of the Murree Cantonment Beef Market during the year 1947‑

48. Lal Khan has stated that the Beef Market was not dismantled, but only repaired, and during the period of repairs the defendant may have been out of possession for a few days. It seems to us that nothing turns on the admission of this official that he was not the person who put the defendant into possession. The question we have to determine is whether, in fact, the defendant was in possession of the premises or trot during the period in suit.

13. Besides the evidence of Lal Khan, there are a number of documents which have a direct bearing on this question. In the first place, there is the application of the defendant Muhammad Sharif requesting for the extension of his previous lease for a period of five years with effect from the 1st of April 1947. This is Exh. P. 1 and paragraph 4 thereof is to the follow ing effect :‑ "After the shop was renovated at my request the Cantonment Board intimated to me that the rent shall be not less than 10 per cent. of the total construction cost and I agree to this. I am also prepared to pay something more than 10 per cent,, say from 12 per cent. to 14 per cent." This statement in Exh. P. I Clearly goes to prove that after the renovation of the shop the defendant was in occupation, especially at the time when he made this application on the 19th of September 1946, for extension of the lease for a period of five years. Then, on the 22nd of April 1947, the defendant sent a notice, through his lawyer, to the Executive Officer, Murree Cantonment, a copy of which is Exh. P.

4. In this notice, the defendant Muhammad Sharif asserted that he was the previous lessee of ‑the Beef Stall, and that in October 1946 the Board had already realised a sum of Rs. 1,500 as advance rent for the year 1947‑48, but he had learnt that the Cantonment Board was now proposing to put the lease to public auction. The Cantonment Board was warned not to do so as the rent could not be increased in view of the provisions of the Urban Rent Restriction Act. This .notice also implies that the defendant was in possession of the premises. On the 14th of April 1947, the defendant addressed a letter to the Deputy Director, Military Lands and Cantonments, Rawalpindi, a copy of which is Exh. P. 14, requesting that officer to intercede with the Cantonment Board, Murree for renewing the lease in favour of the defendant. There is no mention in this letter that the defendant was out of possession. Exhibits P. 8 and P. 9 are letters dated the 10th of June 1947 and 28th of August 1947, addressed by the Cantonment Board to the defendant conveying the Board's refusal to either reduce the rent or to accept the rent in instalments. The defendant's applications referred to in these letters are not before us, but a perusal of these letters clearly shows that the defendant was agitating for a reduction in rent, or in the alternative for facilities to pay rent in instalments. If the defendant had not been in posses sion of the premises in suit, we do not see why he should not have agitated the question of possession as well. Finally, there is Exh. P. 11, dated the 3rd of March 1948 by which the Canton ment Board cancelled the defendant's lease with effect from 31st March 1948. All these letters clearly show that at no time did the defendant allege that he had not given possession of the premises. On the contrary, he was only fighting for a reduction in rent. It is also significant that if indeed the defendant had been dispossessed during the currency of his previous lease, he never demanded the refund of the rent which he had paid to the Cantonment Board for that period, or of the sum of Rs. 1,500 which he had paid in advance for the year 1947‑

48. In fact, as already pointed out: his own application Exh. P, I Clearly shows that the shop was renovated at his request and, therefore, the question of his forcible dispossession from the premises could not have arisen.

14. Reference may also be made to a letter written by the Station Headquarters, Murree Hills, a copy of which is Exh. D. 4 on the subject of the occupation of the Ration Stand by the defendant Muhammad Sharif. This letter recites "During the check of all Government buildings on charge of HQ. MRI Hills, carried out by the S. S. O. on 25 FEB. 46, it was discovered that a portion of Building No. 8 was being used by Muhammad Sharif, a meat contractor, Murree, since 1st June 1946, as a meat shop. On further enquiries being made as to whether he had any authority to use the mily. building in question for the said purpose, the contractor said that he was occupying the building under the verbal instructions given by the then Admin. Comdt. MRI Hills and that he bad no lease or agree ment regarding the rent of the building drawn up between him and the Admin. Comdt." It seems to us that if Muhammad Sharif had been forced to shift to this portion of building No. 8 (which has been described as Ration Station) due to his dispossession from the Beef Market in Murree Cantonment, he would have been expected, in the natural course of things, to mention this fact to the Station Staff Officer who detected his illegal occupation of this building. The defendant's failure to mention his dis possession from the Cantonment. Board's Beef Market as the reason for his occupation of the Military Building raises a strong presumption against him.

15. On the basis of this evidence we have come to the conclusion that the defendant was in possession of the Beef Market in Murree Cantonment as well. Having found that the defendant was in possession of the Beef Markets in Murree Cantonment and Upper Topa, we now proceed to .consider whether the suit was instituted within time.

16. There are three Articles in the First Schedule of the Limitation Act, which require consideration in the present case, namely, Articles 39, 115 and

120. As already pointed out, the learned District Judge seems to have applied Article

39. Mr. S. M. Zafar, the learned . counsel for the appellant, has contended that the case falls under Article 120, while Raja Said Akbar, the learned counsel for the defendant‑respondent, contends that the case is covered either by Article 39 or Article 115.

17. Article 39 deals with "compensation for trespass upon immovable property." In the present case there is no question of trespass on the property, as admittedly the defendant was a previous lessee, and, according to our finding, he has continued in possession. In Mst. Sukhdei v. Lachhmi Narain (A I R 1947 All. 31) it was observed "Trespass on land consists in an unjustifiable intrusion by one person upon land in the possession of another. Trespass is thus a wrong committed against the possession of the plaintiff. There is a wide distinction between continuing in possession of property of which the possession has commenced lawfully and intruding upon property which was not previously in the possession of the intruder", and it was held that the action of a tenant who had remained on the property after the determination of the lease and the notice to quit did not constitute trespass upon the property in the required sense and Article 39 did not apply to a suit c instituted against him for damages for use and occupation. In that authority it was, however, further laid down that Article 1.15 was also not applicable to that case as the defendant had com mitted a breach of a statutory liability under the provisions of section 1'08 (q) of the Transfer of Property Act. Instead Article 120 was applied.

18. Basing himself on this authority, Mr. S. M. War has strenuously contended that the present case is clearly covered by Article

120. He has also relied on Bibhuti Bhusan v. Promoda Sundary (A I R 1936 Cal. 468) where it was held that a suit for damages based on rent is not a suit for rent and is governed by Article 120 and not Article 110 of the Limitation Act.

19. Article 120 being a residuary Article would apply only if we find that the present case is not covered by Article

115. Article 115 deals with suits "for compensation for the breach of any contract, express or implied, not in writing, registered and ,not herein specially provided for." The period of limita tion is three years and the time from which the period begins to run is "when the contract is broken, or (where there are successive breaches) when the breach in respect of which the suit is instituted occurs, or (where the breach is continuing) when it ceases".

20. The meaning and application of Article 115 have been con sidered in several authorities, and we might here refer to Jainarain v. Biseswar Prasad (A I R 1954 Pat. 304) where it was held that when a suit is not for rent but for compensation for use and occupation of land, Article 115 applied. In that case, there was a lease which had been found to be invalid. It was considered that an implied contract will be presumed to have existed between the parties. Again, in Amritsar Municipality v. Kanshi Ram (A I R .1938 Lah. 267) the facts were that a Municipal Committee continued to hold a cattle fair on another's land from year to year and an inference was drawn that there was an implied contract between the Committee and the landowner that the Committee should pay to the owner and that the owner should allow the Committee to hold the fair, and a suit for compensation not received would be governed by Article 115 and not by Article 39 or Article

120. In Saudagar Mal v. Bahadar Chand (A I R 1928 Lah. 442) it was observed as follows :‑ "Article 115 is a general provision applying to all actions ex‑contractu not specially provided for otherwise. The word compensation' in that Article as well as in Article 116 has the same meaning as it has in section 73, Contract Act, and denotes a sum of money payable to a person on account of loss or damage caused to him by the breach of the‑contract." These observations were based on an earlier decision of the :Full Bench in the case of Muhammad Ghasira v. Siraj‑ud‑Din and others (A I R 1922 Lah. 198). It will be seen, therefore, that Article 115 has been consistently applied in the case of suits for compensation where the claim for compensation is relatable to a contract, express or implied, but not in writing and registered. The facts in Mst. Sukhdai v. Lachhmi Narain (A I R 1947 All. 31), relied upon by the learned counsel for the appellant, are clearly distinguishable from those of the present case. As already stated, in that case, the defendant had continued to remain on the property after the determination of his lease, and, therefore, the claim for compensation against him was not in pursuance of any contract express or implied. On the contrary, the contract between the parties had been deliberately terminated and the claim related to a period subse quent to the termination of the contract. Similarly the decision to Bibhuti Bhusan v. Promoda Sundary (A I R 1939 Cal. 468) is not helpful to the appellant inasmuch as in that case the question of the application. of Article 110 alone was considered and no reference was made to Article

115. We are of the view that; on the facts of the present case, it is Article 115 of the Limitation Act which would apply. There can be no doubt that a contract of lease did come into existence between the parties in this case. The defendant applied for the lease of the property, and the Cantonment Board agreed to the same. The correspondence between the parties, throughout the relevant period proceeded on the basis that a lease existed between them, but because of the defendant's refusal to pay the contractual rent, the lease could not be. executed . in writing, nor could it be registered, as was necessary under section 287 of the Cantonment Act. Thus all the ingredients of Article 115 are present in this case. ,

21. The final question for determination is the date from which the period of three years provided in Article 115 shall commence. As already stated, the starting point is the date when the contract is broken. In Exh. P. 11, addressed by the Cantonment Board to the defendant, the first paragraph runs as under :‑ "In this office letter No. D‑11/5/38 dated the 18th February 1948 in reply to your application for reduction in rent you were informed of the resection thereof and asked to credit the outstanding balance of Rs. 3,398‑8‑0 within a week from the date of receipt of the letter. But you have failed to comply with it." Having made this statement, the letter goes on to say that the lease is hereby cancelled. It appears to us that the breach of contract on the part of the defendant, therefore, occurred when he failed to comply with the final demand made by the Canton ment Board, in its letter dated the 18th of February 1948. If we allow even a minimum of one day for the letter of the 18th of February to be delivered to defendant, then. the period of one week indicated by the Cantonment Board would expire on the 26th of February 1948 and, in our view, that should be taken as the date when the contract was broken. Counting from that date, the suit filed on the 26th of February 1951 would be within time.

22. For the reasons given above, we would reverse the judgment and decree of the learned District Judge in first appeal and restore that of the trial Court. The appeal is, therefore, accepted with costs. K. B. A. Appeal accepted.