P L D 1957 (W (PLP)

Muhammad Jamil also contends that Manuel Misquita had approached hifn and offered Rs. 50,000 to vacate the premises so that he may build a large hotel. The defendant denies to have received any notice to vacate the premises and also denies that the constructions in question are unauthorised. The case of defendant 1 Muhammad Jamil, as would appear from his written statement is chit he was given lease of the same plot of land which is mentioned in the agreement which was executed by Manuel Misquita in May 1947. On the pleadings between the parties, five issues were framed. Mr. Shah Jamil Alam, the learned advocate for the defendant 2 -has not pressed issue No.

5. The issue is decided in favour of the plaintiffs that the suit as framed is maintainable. Of the rest of the four issues I would take up issue No. 1 separately, and the remaining three issues, namely issues No. 2, 3 and 4 can be conveniently disposed of together. Issue No.1.-The plaintiffs' case is that Muhammad Khalil, defendant 2, is the tenant of the plaintiffs in respect of the plot on which the structure as shown in Ex. 11/4 stands. On the other hand the case of both the defendants is that it is Muhammad Jamil defendant 1, who is the tenant of the plaintiffs not only in respect of the plot of land on which the structure as shown in Ex. 11/4 stands but also of all the piece of land which is in possession of Muhammad Jamil and on which the alleged unauthorised construction stands. Mr. Kazim Mirza, the learned advocate who appears for Muhammad Khalil. defendant 2, submitted that his client could not be a tenant of the plaintiffs as he was not here during the time the tenancy is alleged to have been created in his favour. In support of his statement he has produced one Mr. Muhammad Hayat, who was an Engineer and was posted in Dehradun. He has stated that he saw Muhammad Khalil from May to July 1947 in Dehradun. Another witness Akhlaq Ahmad, has stated that he travelled along with Muhammad Khalil from Saharanpur (India) while coming to Karachi in August 1947. The evidence of these two witnesses does not go very far to support the contention of Muhammad Khalil that he was not in Karachi at the time when the lease is said to have been executed in his favour. The tenancy, according to the plaintiffs, was created towards the end of April 1947; if so, the evidence of Mr. Hayat who came to Dehradun in middle of May 1947 would not be of much help to the defen dants. The evidence of Akhlaq Ahrnad, Exh. 29 also does not help Muhammad Khalil, as he has stated that he accompanied Muhammad Khalil in August 1947. The evidence of these two witnesses does not overrule the possibility of Muhammad Khalil having visited Karachi in April 1947 and then gone back to Dehradun and again returned to Karachi in August 1947. So far as this issue is concerned, Muhammad Jamil, defendant 1, has relied upon cheques Exh. 22/1-to Exh. 22/11. These cheques range from 10th January 1948 to 12th February 1950, and were issued by Muhammad Jamil as proprietor of Carpet Stores. It is admitted by the plaintiff M. Misquita that he has received these various amounts through the cheques towards rent. Besides those cheques drawn by Muhammad Jamil there is also a rent receipt, Exh. 11/3, filed by Muhammad Jamil. This receipt is for ground rent for May to November 1947. In this connection, I may state that it was conceded by Mr. Jamil Alam, the learned advocate for Muhammad Jamil, that it was immaterial whether Muhammad Khalil was the tenant or Muhammad Jamil. The suit would be dismissed if the unauthorised construction formed part of the premises leased out, and would be decreed if the unauthorised construc tion did not form part of the premises leased out. It is so. On the written statement filed by Muhammad Jamil and the relief claimed, the success or failure of the suit does not depend on the question as to which of the two defendants is the tenant, but whether the alleged unauthorised construction stands on the premises leased out or not. The difficulty as regards the question as which of the defendants is the tenant of the premises of the plaintiffs has arisen because the plaintiff seems to have identified Muhammad Khalil with Muhammad Jamil, as according to him both were the owners of the Carpet Stores: Though it is denied by Muhammad Khalil and Muhammad Jamil that Muhammad Khalil was a partner in the business of the Carpet Stores, but there are two circumstances which go to show that the alle gation of the plaintiff that Muhammad Khalil was one of the owners of the Carpet Stores is correct. The first place, it is admitted that these two brothers were carrying on business in the name of Carpet Stores at Dehradun. Muhammad Khalil admits his signature on Exh. 25/11, which is a bill addressed to one Sharkti Mubarak Ali on the letterhead of Carpet Stores, Dehradun. This circumstance no doubt, cannot be said to be a conclusive proof that the two brothers Muhammad Khalil and Muhammad Jamil started the business of carpets in the :lame of Carpet Sores at Karachi also. All the same it goes to show that Muhammad Jamil would not start a business of which .he was the sole proprietor in a name .in which his brother also had a share though at Dehradun. The other circumstance, which is more important, is the admission of Muhammad Khalil in a suit which he had filed in the Chief Court of Sind being Suit No. 159 of 1950, Exh. 14, in which he admitted in para. 1 of the plaint that he was doing business in 1946-48 in carpets at 65, Victoria Road, Karachi. In his statement before me Muhammad Khalil admitted to have made the statement in para. 1 of the plaint In support of the con tention of the plaintiffs that Muhammad Khalil was their tenant, they have produced one Nazareth. an Architect, and one Fakir Muhammad. Fakir Muhammad, Exh. 10, has stated that he knew the two brothers since before the Partition, that they were doing business in the name of Carpet Store at Dehradun, and that they were doing the same business in Karachi. So far as Nazareth is concerned he is an Architect and has stated that he had prepared a plan after consulting Muhammad Khalil, before he submitted it to the Municipal Corporation for sanction. All this evidence and the circum stances which I have mentioned above do support the conten tion of the plaintiffs that Muhammad Khalil was their tenant at one time. The important question, however, still remains whether Muhammad Khalil continued to be the-tenant of the premises in question up to the date when the suit was filed. At best, the evidence of Nazareth and Fakir Muhammad and the application Exh. 11/4 would show that the plaintiffs had negotiated to confer tenancy of some piece of land on Victoria Road on Muhammad Khalil and had in fact conferred the same. This evidence does not show that the tenancy continued up to the date the suit was filed i.e. up to 15th December 1950. On the other hand, the evidence filed by Muhammad Jamil would show that in law it was he who was treated by the plaintiffs as the tenant. Muhammad Jamil has filed rent receipts, Exh. 22/1-11. These are cheques by which payments had been made to the plaintiff towards rent of the premise: in question. There are 11 cheques and they are spread over a period of about three years starting from 10th January 1941 to 15th February 1950. All these cheques have been issued by Muhammad Jamil as proprietor of the Carpet Stores. It was contended by Mr. Castellino that, as both the brothers wer~ joint owners of the Carpet Stores, therefore the payment b Muhammad Ja.mil on behalf of the Carpet Stores should be taken to be made by Muhammad Khalil. There is no force whatsoever in this argument. Though both the brothers ma be owners of the Carpet Stores, but so long as the rent is pal by one of the brothers alone and rent receipt is also given i the name of Muhammd Jamil, the legal inference would that it is only Muhammad Jamil who is the tenant of the plaintiffs. In this connection, I may point out Exh. 11/13, a rent receipt given by the plaintiffs to Muhammad Jamil. This is in the name of Muhammad Jamil. This receipt is admitted by plaintiff Misquita. This receipt coupled with the various payments made by Muhammad Jamil leaves no doubt that on the date when the suit was filed, Muhammad Jamil was the tenant of the plaintiffs, and not Muhammad Khalil. In this connection, it was also contended by Mr. Castellino on the basis of Exh. 11/14, a statement of rent account which is in the name of the Carpet Stores that the Carpet Stores was the tenant. In fact, no such case is alleged in the plaint. More-1 over, Carpet Stores not being a legal entity cannot be the tenant of the premises in question. I may also state that It was the duty of the plaintiffs to have filed accounts or some other documentary proof to show that Muhammad Khalil was the tenant of the premises in question on `the date when the suit was filed. The plaintiffs have failed to establish by any documentary evidence, which should be in their possession, that they used to receive payments on behalf of Muhammad Khalil. The plaintiff Misquita admits that he keeps accounts, but when asked about the record he gave an explanation which is not at all intelligible. He stated in cross-examination to Mr. Kazim Mirza as under :- "I keep accounts. I had entered the amount of Rs.700 paid by Khalil in my accounts. That record is not now in my possession, because my brother died some 5 years back". I would, for the reasons given above, held that Muhammad Jamil is the tenant of the plaintiffs, and not Muhammad I would deal with the question of the area leased out to Muhammad Jamil under issue No.

2. So far as the terms and conditions are concerned from Exh. 11/13, a rent receipt by the plaintiff to Muhammad Jamil, it is clear that the premises, whatever its area was, was given to Muhammad Jamil at a monthly rent of Rs.50 up to Novem ber 1947. Muhammad Jamil, defendant 1, has admitted that from January 1948 he paid rent at the rate of Rs.150 per month. I would, therefore, hold that the original rent was payable at Rs.50 per month and after January 1948 the rent was Rs.150 per month. Issues 2, 3 and 4 These issues are interlinked and can conveniently be disposed of together. The question involved under these issues is as to what was the piece of land leased out to the defendant Jamil. The plaintiffs' case is set out in paragraph 2 of the plaint as to the area that was leased out to the defendants. Accord ing to the plaint, only that much portion was leased out to the defendants which was covered by the structure mentioned in the plan Exh. 11/4. According to the written statement of Muhammad Jamil, the area leased out to him is as mentioned in the agreement to lease. It was not difficult to establish the same. Muhammad Jamil has not produced any copy of the police report to establish the same. It appears from the statement of Muhammad Jamil that the accident was not in any way serious, as he has not stated that he had received any injuries. Under these circumstances it is difficult to believe that Muhammad Jamil would lose his brief case which according to him contained important documents. I do not also believe that the story about taking out a certified copy Exh. 20/1 is true. If Chundrigar wanted to buy some premises for his brother, it was sufficient for him to take an ordinary copy and send it to his brother for his perusal. If his brother had faith and trust in him to allow him to negotiate to purchase the concern on his behalf, he would have been easily satisfied with an uncertified copy of the lease. Moreover, Chundrigar has not produced any accounts to show that he had paid the advocate as alleged by him to Muhammad Jamil. At any rate even if the certified copy of the alleged agreement was taken out, it does not prove that Misquita had in fact executed any such agreement. All that the Magistrate has proved is that he had certified as true copy of an agreement which was produced before him. He does not identify the signature on it to be that of the plaintiff Misquita. In the absence of any such verification by the Magistrate of the identity of the signature, it cannot be said that Misquita had in fact executed the agreement of which Exh. 20/1 is supposed to be the copy. The most important, question now is as to what is the area which was leased out to Muhammad Jamil. I have already said that, so far as the plaintiff is concerned he states that the area leased out to the defendants was the same on which the structure was to stand as given in the plan Exh. 11/4. It is true that there is no written agreement produced by the plaintiffs to show as to what area was leased out to the defendants. But the circumstances, which I would presently deal with, lead me to the conclusion that the area leased out was the same which is given in the plan Exh. 11/4 and which was passed by the Municipal Corporation on 26th May 1947. The defendant has relied on the oral testimony of certain witnesses, viz., Yousuf Khan, Exh. 23, Abdur Rahman, ExL. 24, Ejaz Ahmad Exh. 26, Khan Muhammad Exh. 27 and Baghali Exh.

31. These witnesses have stated that the defendant Muhammad Jamil used to dry his carpets on the portion of the land which is now in his possession at the time when he was doing the business of carpets. It may be so. The mere fact that the landlord had allowed the defendant to dry his carpets upon an open piece of land which belonged to him would not confer tenancy right on the tenant. Some of these witnesses have also stated that there was a boundary wall of planks where the defendant used to dry his carpets. The existence of the boundary wall also does not take the defendant's case very far, as these planks boundary wall existed up to 1948, only as stated by Khan Muhammad Exh.

27. It is quite possible that the plank walls existed till the carpet business was there in order that .the defendant may be able to dry his carpets in safety. So long as the relations between the landlord and the tenant were amicable which continued till the business of carpets was closed the landlord as a reasonable person, could not object to the tenant putting up a temporary plank wall for the protection of carpets while drying them. These plank walls however, did not exist after the carpet -business was closed. In my opinion, the statements of these witnesses do not establish any tenancy in respect of the portion of land now in the possession of Muhammad Jamil. The statement of these witnesses at best would only show that Muhammad Jamil at one time did make use of- the land now in his occupation. On the other hand, the circumstances would show that the area leased out to him was only that much which was given in the plan Exh. 11/4. Avery important circumstance against the defendant is that the land in question is situated in a very busy business quarter, namely on the Victoria - Road, by the side of Paradise Cinema. Every inch of land on this road is of great value, which can be utilised for cabins,-etc. Moreover on the Victoria Road it is not conceivable that a landlord would lease out an unspecified portion of land for putting up shops, etc. If the understanding between the parties was not that what was being leased out was only that much portion of the land which would be occupied by the structure mentioned in Exh. 11/4, the landlord would certainly have specified the area. As I have already mentioned every inch of land on Victoria Road has got value. If anything extra besides the piece of land to be occupied by the structure mentioned in Exh. 11/4 was in contemplation to be leased out, it would have been certainly mentioned by the landlord. Misquita admitted in cross-examination that he was a big landlord and had some 150 tenants. A landlord like Misquita would not lease out an indefinite piece of land without specifying the area thereof, unless the understanding between the parties was that the piece of land to be leased out was to be the same which was mentioned in Exh. 11/4, the plan. So far as the evidence of defendant Muhammad Jamil about the area leased out to him is concerned, I find that it is contradictory and cannot be believed. According to his statement in the examination-in-chief the area leased out to him was 75 feet x 100 feet, while in cross-examination he stated; " I occupy approximately the same, area now which was covered by ten tents of 24 feet x 18 feet. It may be approximately the same area that was agreed upon in the lease with Mr. Misquita and covered by the ten tents." Muhammad Jamil has contradicted himself materially, as the area given in the agreement comes to 7,500 square feet, while that of ten tents of 18 feet x 24 feet comes to 4,320 square feet. Such a discrepancy, in my opinion, is a very material one. It is not a discrepancy relating to 100 square feet or so. I would hold that the area occupied by the defendant was only what is mentioned in Exh. 11/4. My finding on issues No. 2, 3 and 4 is that the area leased out to the defendants is the same which is covered by the plan Exh. 11/4 and no more; that defendant Muhammad Jamil is in unauthorised possession of the portions marked A, C and D in the plan Exh. 11 /4 and the same have been unauthorisedly constructed by Muhammad Jamil. The suit is decreed for a declaration that the area of land leased to the defendants is comprised only of the building sanctioned in the plan Exh. 11/4, and that no other area was leased out to the defendants. The plaintiffs are entitled to possession of the area not comprised in the sanctioned plan Exh. 11/4. The defendants are allowed to remove the unauthorised constructions marked A, C and D in the plan Exh.ll/2 within two weeks from the date of the decree. Defendant Muhammad Jamil is also restrained from construct ing or putting up any further structure on the area not comprised in the plan. The suit is decreed as mentioned above with costs. A. H. Suit decreed.