P L D 1959 (W (PLP)

B. Z. KAIKAUS, J.‑This is an appeal against the judgment of Vellani, J. dismissing a suit filed by the plaintiff‑appellants for a declaration that they were tenants under the Government in respect of the land in dispute and that the Karachi Municipal Corporation had no right to eject them or enter upon the land. The plot in dispute, which is No. 13‑K‑28 in Trans Lyari Quarter, is admittedly part of the land mentioned in a Sanad granted by the Collector of Karachi on 3rd of December 1877 to one Rahim Poonjo. This Sanad states that the land mentioned in it was leased to Rahim Poonjo from the 1st of August, 1875 for a period of 20 years at a total rent of Rs. 76‑9‑0 per annum. It is also entered therein that the rent of land is to be paid to the Karachi Municipal Corporation. It may be stated here that this land belonged to the Govern ment, but by a Resolution passed in the year 1873, the beneficial interest in this land had been transferred to the Karachi Municipal Corporation. At the same time certain rules had been framed by the Government with respect to the future management of this land by the Corporation. Those rules provided that in any case where a lease of this land was granted by the Government, it should be considered to have been a lease granted by the Municipal Corporation. According to the case of the plaintiff‑appellants, after the expiry of 20 years, Rahim Poonjo continued to hold the land mentioned in the Sanad as tenant, and that part of the land which is now in dispute; came by various transfers‑which it is not necessary to detail‑to one Bassario Piroo whose heirs the plaintiff‑appellants are. They state that they continue to hold the land in dispute under the Government by virtue of the Sanad granted on 3rd December 1877, and that they have been paying rent to the defendant‑respondent, that is, the Karachi Municipal Corporation, because of the direction to that effect in the Sanad ; but the Municipal Corporation had, on a wrong allegation that the plot in dispute was held by the plaintiff‑appellants under a lease from the Corporation and that there had been a breach of the conditions of lease so as to entail forfeiture of the lease, passed a Resolution to the effect that possession of the land was to be resumed. The plaintiff‑appellants, had therefore, after serving a notice on the Corporation, filed the present suit, claiming (a) a declaration that the plaintiffs are the lawful holders of the land in suit under the Government and that the defendants are not entitled either to resume the plot or dispossess the plaintiffs from the land in suit ; (b) an injunction restraining the defendants, their employees and/or their agents from disturbing the plaintiff's possession of the land in suit. The defendant‑respondent, that is the Karachi Municipal Corporation, denied that the land was held by the plaintiff appellants under a lease by the Government. It stated that the original lease expired in 1895, and then it was renewed by the Corporation for another term of 20 years ; in 1915 there was another renewal of the lease but the lease was granted only for agricultural purposes at a rent of Rs. 4 per acre per annum, and this lease too expired in 1935. In 1935, Bassario Piroo, the plaintiffs' predecessor‑in‑interest had taken this land or lease under a fresh agreement for 20 years beginning on the 1st of August 1935 at a rental of Rs. 5 per acre per annum. He had agreed at the same time to all the conditions mentioned in Form E, which form incorporates the conditions mentioned in the Rules framed by the Government for the grant of an agricultural lease. It was one of the conditions of the lease that the land was to be developed into a garden within the period of three years. This condition had not been fulfilled, for three years had long expired without the plot having been developed into a garden, with the result that the lease stood forfeited. The defendant, therefore, was entitled to resume the land. The learned Single Judge came to the conclusion that the plaintiffs were not tenants under the Government as claimed by them.. He was also of the opinion that the suit was barred by section 255 of the City of Karachi Municipal Act, 1933. In accordance with this section, a suit cannot be filed against the Municipal Corporation in respect of any act done in pursuance of the Act unless a notice under this section is served on the Corporation and unless the suit is filed within six months next after the accrual of the cause of action. The only points which are to be considered in this appeal are

(i) Whether the plaintiffs are tenants under the Government by virtue of the Sanad granted on 3rd December 1877 ; and (ii) Whether section 255 bars this suit. To take up the first point we will proceed on the assumption that the present plaintiffs stand in the shoes of Rahim Poonjo on account of the transfers which ended with Bassario Piroo whose heirs they are, but we are unable to hold that the plaintiffs are rightful holders of the plot in dispute under the Government. The lease from the Government, upon which the plaintiffs rely, terminated in 1895. The claim of the plaintiffs is that they are tenants holding over. This is the only right 'which has been claimed in the arguments before us, and it is clear that no better claim could have been put forward. But in order that a person be a tenant holding over, it is necessary in accordance with section 116 of the Transfer of Property Act that there should be an express or implied consent of the landlord to his continuing as a lessee on the same terms. There is not even an allegation in the plaint‑much less proof‑that there was any express or implied assent by the landlord to the continuance of the tenant in possession. So far as the Government is concerned, it is admitted that there has been no such assent.. It was open to the plaintiffs to contend that the Municipal Corporation had assented to their continuing as lessees on the same terms and conditions as are embodied in the Sanad of 1875 and as the beneficial interest in this land had been transferred to the Municipal Corporation in the year 1873, (even a lease by the Government was to be considered in accordance with the Rules framed to be a lease by the Municipal Corporation) their assent was the assent of the land lord, but the plaintiffs are not prepared to put forward this argument for reasons of their own. We asked learned counsel for the plaintiff‑appellants about seven times whether he was accepting the Municipal Corporation as his landlord, and he replied in the negative. We had pointed out to him that the Government admittedly never having assented to the continuance of the plaintiffs' predecessors in interest as lessees, the plaintiffs could not possibly become tenants holding over if the assent of the t Municipal Corporation was lacking. In spite of our having explained to him this position a number of times, learned counsel for the plaintiff‑appellants refused to accept the position either that the Municipal Corporation was the landlord in respect of this land or that he was holding under the Corporation. The facts as they appear from the record are that Bassario Piroo had accepted the position of a tenant under the Municipal Corporation itself. It is established that a letter dated 5th February 1935, (Exh. 8/10), was sent to him by the Chief Officer of the Municipal Corporation, and he sent the following letter dated 30‑4‑1935, (Exh. 8/15) in reply :‑ "I beg to acknowledge receipt of your letter No. L.C., G.C.L.3/ 34, dated 11th April 1935 regarding above plot and to thank you and the Standing Committee for granting us a fresh lease for 20 years from 1st August, 1935 on the payment of land rent at the rate of Rs. 5 per acre and subject to the conditions mentioned in Form "E" appended in your memo. I hereby agree to all the terms and conditions mentioned in Form "E" and also to the payment of land rent at the rate of Rs. 5 per acre per annum and shall be glad if you will do the needful in the matter. In this connection I have to refer you to my application dated (?) ‑10‑34 applying for fresh lease in which I have stated that the original lessee had sold his right in the plot by regular sale‑deeds and the plot is in my possession since long time and I have been paying all Municipal taxes and therefore I shall be glad if the fresh lease is granted in my favour and the plot entered in my name in your records. I shall be prepared to produce the documents in support of my application. Hoping to be excused for the trouble. Yours faithfully, (Sd.) PASRIO PIROO". Bassario Piroo continued to pay the rent agreed upon and to acknowledge the Municipal Corporation as his landlord and the same was originally the attitude of the plaintiffs. Even in the notice sent by the counsel of the plaintiffs on the 16th of July 1943 (Exh. 8/46) it was stated :‑ "Our client (Seth Abdullah Basrio) is the owner of the plot No. 13, K‑28, Trans Lyari Quarter, Karachi, which he has been holding under your Municipality". It is only when serving a notice under section 255 of the City of Karachi Municipal Act, 1933, that it occurred to the plaintiffs to deny that they were holding under the Municipal Corporation and to set up a tenancy under the Government. It might have been possible for the plaintiff appellants to claim that they were holding as tenant from year to year under the Municipal Corporation. There was no registered lease in 1935, there being only letters exchanged between the parties. The Transfer of Property Act is in force in Karachi, and a lease for 20 years could only be effected by means of a registered document. The plaintiffs may have contended that on account of the acceptance by Bassrio Piroo of the position of a tenant and the payment of rent a lease from year to year was created in his favour. Had the plaintiff‑appellants taken up this position, we would have considered the effect of the unregistered contract, the atternment, and the payment of rent, and whether the Municipal Corporation was entitled to terminate the lease, or had validly terminated it. All these questions, however, we are not called upon to consider in this appeal because of the strong attitude taken up by the plaintiffs themselves. They want a declaration not with respect to their status as tenant under the Karachi Municipal Corporation, but with respect to a tenancy under the Government as dis tinguished from the Municipal Corporation, because they want at the same time a declaration that the Municipal Corporation is not entitled to evict them. As already explained, it is not possible to hold that the plaintiff‑appellants can be tenants under the Government. Even the plaint could have been rejected on the simple ground that there was no allegation in it of the landlord ever having consented to the tenants continuing in possession after the expiry of the period of the lease, and therefore the plaintiff ‑appellants could not be tenants holding over. But even if we ignore this lack of allega tion in the plaint, the plaintiff appellants cannot succeed. They vehemently repudiate that the Municipal Corporation is their landlord with the result that they cannot rely upon its assent for becoming tenants holding over. There is yet another reason why the plaintiffs cannot be tenants holding over with reference to the Sanad of 1877. The conditions on which the plaintiffs have been holding the land are different from the conditions mentioned in the Sanad. They have been holding the land at a rent of Rs. 5 per acre per annum. In order that a tenant may be said to be holding over he must continue on the same terms on which he held under the expired lease. This term relating to rent, and even other terms which are incorporated in form `E' are different from those in the Sanad. We are not giving effect to the plaintiffs' contention on merits but we must state that we do not agree with the learned Single Judge in his interpretation of section 255 of the City of Karachi Municipal Act, 1933. Section 255 runs :‑ "255. (1) No suit shall lie against the Corporation or against the Chief Officer or against any other municipal officer or servant to respect of any act none in pursuance or execution or intended execution of this Act, or in respect of any alleged neglect or default in the execution of this Act, (a) unless it is commenced within six months next after the accrual of the cause of action and (b) until the expiration of one month after notice in writing has been, in the case of the Corporation, delivered or left at the Chief Municipal Office and, in the case of the Chief Officer or of a Municipal Officer or servant, delivered to him or left at his office or place of abode ; and all such notices shall state with reasonable particularity the cause of action and the name and, place of abode of the intending plaintiff' and of his advocate, pleader, or agent, if any, for the purpose of the suit. (2) At the trial of any such suit‑ (a) the plaintiff' shall not be permitted to adduce evidence relating to any cause of action save such as is set forth in the notice delivered or left by him as aforesaid ; (b) the claim, if it be for damages; shall be dismissed if tender of sufficient amends was made before the suit was instituted or if, after the institution of the suit a sufficient sum of money, with costs, is paid into Court. (3) If the defendant in any such suit is the Chief Officer or any other Municipal Officer or servant, payment of any sum or part thereof payable by him in or in consequence of the suit may be made with the sanction of the Standing Committee from the Municipal fund". This section has no application to suits for declaration of a title to land and is not intended to reduce the period of limitation provided by, the Limitation Act in respect of such suits. This section will apply only to a case where' there is some act being done in pursuance of the Municipal Act or where there is a neglect or default in the execution of the Act. When the Municipal Corporation gives notice of the determination of a lease, it is not acting in pursuance of a special. power granted by the Karachi Municipal Act ; it is acting in its capacity as a juristic person having interest in a particular land. There is a distinction between the acts of a Municipal Corporation which are based on special powers granted to it by the enactment that creates it and powers which it possesses because it is incorporated and is a juristic person. It is only to the exercise of special powers granted by the City of Karachi Municipal Act that section 255 is intended to apply. This appeal is dismissed with costs. A. H. Appeal dismissed.