1995 PLP 446 (CLC)

(1) Whether ejectment application in question is maintainable in law? (2) Whether opponent No.1 is tenant of the applicant/trustee? (3) Whether the opponent No. 1 sub‑let the rented premises to opponent No. 2 with the verbal consent of the applicant? (4) Whether opponent No. 1 impaired the material value or utility? (5) Whether the opponents Nos. 1 and 2 are liable to the ejectment? (6) What should the decree be?

12. Findings of the learned Rent Controller on issues 1, 2, 3 and 5 are in affirmative while Issue No. 4 is in negative, and appellant was directed to vacate and hand over possession of rented premises to applicant within 90 days.

13. Learned Advocate Mr. Muhammad Arif appearing for appellant s tiussain Khan has argued that appellant is running furniture shop since 1981. He is paying rent regularly to appellant Saifuddin since then. Apart from rent, he is paying Rs.2,000 towards Pugri of the rented premises as it was settled at Rs.1,00,000, and by that time he had paid about Rs.84,000 as Pugri. He further contended that for three years the respondent had not contacted him for payment of rent or claimed himself to be a landlord. in 1984 he was asked to do through his Advocate asked for title document to ascertain whether the respondent is actual owner of the premises. Respondent failed to do so. To remain on the safe side, he started depositing rent in Court. He further contended that by his such action the respondent has impliedly consented to his tenancy. By his letter dated 18‑7‑1984 he only wanted to effect necessary changes in the tenancy and had not asked for vacating the premises in question. He further contended that respondent Saleh Bhai and appellant Saifuddin are cousins. Even according to the admission of the respondent this is a family Trust. Respondent has not shown the title documents to the appellant Hussain Khan on demand though he was ready to pay the rent after seeing those title documents. Probably due to the fact respondent had no clear title document over the disputed premises in the record of rights. Even record of rights produced by the respondents in evidence shows Saleh Bhai Muhammad Ali as caretaker of the Trust and not the respondent.

14. Realising this weakness respondent's Advocate in earlier appeals before this Court (F.R.As. Nos. 725/86 and 958/86) requested the. Court for remand of the case for producing further documents, and accordingly case was remanded back. He further contended that title of respondent over the rented premises is not clear though this position is admitted by appellant Saifuddin in his written statement. He further contended that it is admitted that respondent is a landlord, but he kept silent for three years; and again refused to show title documents on demand. By his such act appellant Hussain Khan believed that Saifuddin is landlord. By his conduct respondent has himself allowed Saifuddin to receive the rent and Pugri. The Pugri amount is nearly paid. He alleged that in collusion with appellant, respondent has filed the case. 14‑A. Learned Advocate for the respondent has argued that relationship of landlord and tenant is admitted by appellant Saifuddin. Appellant Hussain Khan has admitted in his cross‑examination that he knew respondent is caretaker. He has not permitted the sub‑letting of premises to appellant Hussain Khan by appellant Saifuddin. He further contended that it has been admitted by both the appellants that premises has been sub‑let, as such, appeals should be dismissed and order of the Rent Controller be maintained.

15. Heard the arguments of the learned counsel. As far F.R.A. No.438/1990 is concerned the admitted position is that appellant is running the furniture shop in premises question since 1981. It was only in 1984 the respondent gave him notice asking him to clarify this matter, so as to effect necessary changes in tenancy. For more than three years he remained silent. He did not raise any objection over the possession of the appellant. Even notice from respondent's Advocate to the. son of the appellant is for clarification of the possession and not for vacating the premises. To these letters the appellant's Advocate showed his willingness to pay the rent to respondent provided title papers are shown. Respondent did not respond to this reasonable request of the appellant, probably because he had no clear title to the premises. Record of rights produced in the Court do not indicate that respondent is caretaker and trustee of the Trust. As record shows that Saleh Bhoy Muhammad Ali is caretaker. It is a family trust. Respondent Saleh Bhoy and Saifuddin are cousin inter se. The Pugri of Rs.1,00,000 is alleged to have been settled between appellant Hussain Khan and Saifuddin. According to the appellant he was haying the Pugri at the rate of Rs.2,000 per month. This fact is confirmed even by the first letter of respondent to the appellant Hussain Khan who had clearly mentioned that it had come to his knowledge that appellant was paying compensation of Rs.2,000 per month to Saifuddin. Their collusion for ejectment of appellant Hussain Khan cannot be ruled out as most of the Pugri amount had been received by Saifuddin. The conduct of the respondent for keeping silence for three years, avoiding to show the title documents to‑appellant, is a contributory factor in the belief of appellant that Saifuddin was actual landlord. In other words it amounts to acquiesence of the right. As held in Ghulam Bahauddin Qureshi v. Mrs. Hawa Bai reported in PLD 1979 Karachi 597:‑‑ "Recognition of sub‑lease by conduct also obviates requirement of writing. Relationship of landlord and tenant held exists between parties in circumstances." Such views also taken on. Boman Abadan Irani ‑v. Khan Saheb Jahangir J. Mobed and another (PLD 1960 West Pakistan Karachi 276). It has been held in Haji Dawood v. Mst. Rahima Bai and another PLD 1980 Karachi 126:‑‑ "Sub tenancy acquiesced by landlord‑‑Right to object‑‑No longer available‑‑Party acquiescing in breach of right waiving his right‑ Debarred from placing pleading for or enforcing his right." Respondent by his conduct for keeping silence for three years and refusing to show title document to the appellant on his demand has acquiesced his right of objection over subletting of the premises; at this stage he cannot exercise his right of demanding ejectment on the ground of subletting. By his conduct he is also responsible for belief of the appellant that he has been rented out premises by actual owner. In view of the above rulings the relationship of landlord and tenant did exist between the parties. In view of the above circumstances the impugned order of the Rent Controller in respect of appellant Hussain Khan is set aside. F.R.A. No.438/1990 is allowed with no order as to costs. As far F.RA. No. 476/1990 is concerned the admitted facts are that appellant is paying rent of Rs.50 per month whereas Hussain Khan is paying Rs.250 per month, to Saifuddin. Hussain Khan also states that he is paying Pugri @ Rs.2,000 per month, up to the tiling of the ejectment application. He had by that time paid Rs.82,000 towards Pugri amount. Sub letting is admitted by the appellant. Respondent denied to have permitted sub letting. It is also clear from the fact that he was charging much more than what he was paying as rent. No man will permit the tenant to charge more from sub let tenant, than what he pays the landlord. Subletting is either without permission of the respondent 'admitted in order to make a ground for eviction of Hussain Khan. In both the cases the appellant is liable to be ejected. In view of this fact the order of the Rent Controller is maintained so far Saifuddin is concerned, and his rent appeal is dismissed with no order as to cost. The appellant, Saifuddin is directed to vacate the premises within 60 days of this order. H.B.T./H‑312/K. Appeal dismissed.