1995 PLP 342 (MLD)

ABDUL RAHIM KAZI, J.‑‑‑This appeal is directed against the orders passed by he learned Single Judge in Chambers on 15‑9‑1994 on C.M.A. 3151/94 dismissing the said application. The facts relevant for the purposes of this appeal are that respondent No.l had bled a suit against the present appellant, respondent No.2 and two other persons of restoration of possession under section 9 of the Specific Relief Act. The case of the respondent No.l plaintiff is that she was the tenant in the premises in dispute which were owned by present respondent No.2 while one Khurram Jan Muhammad (defendant No.2) who has not been made party to this appeal had in collusion with and active support of present appellant, respondent No.2 and others got her dispossessed. In the suit the present appellant moved an application under Order VII, Rule 10, C.P.C. read with section 7(xi)(e) of the Court Fees Act, 1870 and section 8 of Suits Valuation Act, 1887 to the effect that the suit was over‑valued by the plaintiff and the value should be computed in accordance with the provisions of section 7(xi)(e) of the Court Fees Act which would be twelve times the monthly rent of the premises which admittedly is. Rs.250. This application was subsequently amended to be one under Order VII, Rule 11, C.P.C. and the words "return" as contained in the body of the application was changed to word "rejection" by overwriting. The order of the learned Single Judge shows that the counsel had submitted that this application alternatively should be treated as one under Order VII, Rule 11(d), C.P.C. The learned Single Judge after hearing the arguments of the parties was pleased to dismiss the said application which resulted in this appeal. We have heard Mr. Faisal Arab, the learned counsel appearing for appellant and Mr. Akhtar Mahmud, the learned counsel appearing for respondent No.l. The only point which was urged before the learned Single Judge is that the suit ought to have been valued as contended by the appellant as stated above and the plaint, therefore, should have been rejected/returned. The contention of the learned counsel is that admittedly it was within the knowledge of the plaintiff that defendant No.l had sold the property in dispute to defendant No.2 and, therefore, the dispossession made by the defendant No.2 is deemed to be one having been made by the landlord and thus the suit is to be valued at the annual rental value. He has referred to the contents of the plaint as made in para. 6, para. 10.02 and para. 9.05. From this the learned counsel has submitted that in the plaint it is admitted that in the proceedings before the Sub‑Divisional Magistrate under section 107/117, Cr.P.C. statement was made by defendant No.l that he had sold the property to defendant No.2. According to the contents of the plaint, no such documents of the sale was produced. The contents of para. 10.02 of the plaint would show that the defendant No.3 claimed to be tenant of defendant No.2, whereas the contents of para. 9.02 of the plaint shows that the plaintiff was dispossessed/thrown out from her clinic forcibly and illegally by defendant No.2. From this the learned counsel's contention is that the plaintiff was admittedly a tenant and, therefore, she ought to have valued the suit as claimed by the learned counsel for the appellant. Before dealing with the point of court‑fees, we would like to observe here that a tenancy between the parties is not created merely by the fact that one owns the property and the other is in occupation thereof but an over act has to be shown. Reference may be made to the case of Faqir Muhammad Hazratullah 1989 CLC 252 wherein it has been held as under: "I am fully in agreement with the principles laid down in the above three decisions of this Court and hold that in such cases the mere fact that the appellants' claim to have acquired the interest in the disputed property would not ipso facto create the relationship of the landlord and tenant as between him and the persons in occupation of the same but such relationship is created only by some agreement written or oral or by statute which fact in the instant case has not been proved by the appellant." In the instant case the admitted position is that the plaintiff was tenant of defendant No.l and not the defendant No.2 and even if an agreement of sale is executed, which by itself is an incomplete transaction, the statutory requirements are not complied with. In these circumstances, it is obvious at this stage that no tenancy had been created between the parties. This observation, of course, is subject to final adjudication in the suit. Reverting to the question of application of provisions of Court Fees Act, it may be observed that section 7(v) as amended by Sindh Finance Act (Act XIII of 1974) provides as under: "(v) In suits for the possession of a land, house or garden ‑‑‑ according to the value of the subject‑matter, and the market value of the land, house or garden shall be deemed to be such value:" This itself shows that when suit for possession of a house is instituted the same is to be valued under this provision and ad valorem Court Fee Stamp of the value of the property is to be affixed and in the same provision it has been observed that value of the property is market value for the purposes of this provision. As regards section 7(xi)(e) it may be observed that this provision would have been applicable where dispossession is alleged against only the landlord by tenant or against the landlord as having been caused with the assistance of other persons. Herein the present case the ejectment is allegedly caused by defendant No.2 with the connivance of the landlord and the defendant No.2 is not deemed to be the landlord in law as far as the present respondent No.l is concerned. In these circumstances, we are of the view that the order. of the learned Single Judge does not call for any interference which is accordingly maintained. However, it will be open for the present appellant to get an issue framed before the trial Court and lead evidence, if necessary, on the same. The appeal is accordingly dismissed summarily alongwith miscellaneous application with no order as to costs, as the matter involves legal question. A.A./M-2027/K Appeal dismissed.