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Second Appeal No. 210 of 1964, decided on 24th February 1965.

Ss. 15 & 13‑Appeal against order of Controller‑Appellate authority competent and respondent entitled to support order of Rent Controller on ground different from one on which Controller had based his decision‑Civil Procedure Code (V of 1908), O. XLI, r. 32.

S. 30‑Tenancy in respect of occupants contemplated under section‑Mere occupation of premises does not make occupant tenant of transferee.

The tenancy that is contemplated by section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 is one on the terms and conditions of the tenancy of the previous occupation. Mere occupation of the premises does not make the occupant a tenant of the transferee of the premises. If, for instance, the previous occupant was a trespasser, he does not become a tenant merely because the premises is transferred by the Settlement Department.

S. 13‑Person using part of neighbour's property ac ease ment of necessity‑Cannot be held tenant of his neighbour be respect of property so used‑Ejectment, in such circumstances, cannot be ordered‑Displaced Persons (Compensation and Rehabi litation) Act (XXVIII of 1958), S. 308, Sch. Part .I.

Two independent units of evacuee property were transferred by the Settlement Authority under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 to two different persons B and M. B was transferred residential portion above a shop and M was transferred an adjacent shop having no super structure above it. The only passage for B to reach the residential portion transferred to him was over the roof of the shop transferred to M. M demanded rent from B in respect of the roof for making use of it and on refusal of B to pay rent filed an application for his ejectment from the roof under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. The Controller and the first appellate authority refused ejectment on the ground that B in these circumstances had no other way to reach his residential portion. In second appeal the High Court upheld the decision of the lower tribunals and held that although the decision of the Settlement Authority was not clear whether B had the right of passage over the pro perty of M but in the absence of any other passage to his residential portion B's right to use the roof of 'M's shop was an easement of necessity and as such he could not be held to be a tenant of M and therefore no ejectment order could be passed against him.

Usman Ghani for Appellant.

M. M. Mahmoodi for Respondent.

Date of hearing: 24th February 1965.

This is a Second Appeal which has been preferred to question the judgment of the Additional District Judge, Sukkur, dated the 13th of April, 1964 by which he dismissed the First Appeal of the present appellant which had been preferred against the order of the Rent Controller, Sukkur, dated the 31st of October, 1964.

2. The facts which form the background, briefly, are that there are two shops on the ground floor. Above one of them there is a superstructure, which is a residential building and above the other there is no structure, but the open roof is situated in front of the residential superstructure and serves as its Court‑yard. A staircase opens on the roof and serves as a passage for the occupants of the residential superstructure. Tae residential superstructure has been transferred by the Settlement Depart ment to the Respondent and the shop which has no superstructure on its roof has been transferred by that Department to the appellant. After the appellant received the P. T. O., he gave a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 to the respondent and thereafter made an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 to evict the respondent from the roof of his shop.

3. The respondent resisted the application. The Rent Controller relied on an order of the Deputy Settlement Commis sioner, dated the 9th of December, 1960, which is Exh. 22, and came to the conclusion that the respondent was a tenant of the roof and was liable to pay rent at the rate of Rs. 2.00 per month, but according to the Rent Controller, eviction of the respondent from the roof was not practicable because :‑‑

"If he is ejected from this portion he is either to be locked in or locked out. This Court has sufficient discretionary powers to refuse ejectment, and this is the fittest case where ejectment must be refused.

The appellant landlord, therefore, went in appeal, and the First Appellate Authority has held that he is not the owner of the roof which serves as the courtyard of the residential superstructure which has been transferred to the respondent; therefore, the appellant is not entitled to recover rent. With this conclusion the First Appellate Authority dismissed the appeal.

4. The appellant landlord has come in Second Appeal, as mentioned above, to this Court. Counsel for the appellant has advanced three arguments in support of this appeal

(i) The mere fact that the respondent uses and occupies the courtyard, which is the roof of the shop which has been transferred to the appellant, is sufficient in terms of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, to make him a tenant of the appellant.

(ii) The decision of the Deputy Settlement Commissioner, dated the 9th of December 1960 (Exh. 22) is clearly in favour of the appellant inasmuch as, according to it, only the residential superstructure above the shop has been transferred to the respondent, but no portion of the shop over which there is no superstructure has been transferred to him. This being the decision of the Statement authorities, 'it was not open to the Rent Controller. or any appellate authority exercising jurisdiction under tile West Pakistan Urban Rent Restriction Ordinance to change that point of view.

(iii) The Rent Controller had dismissed the application of the appellant on the ground that the respondent could not use the residential superstructure which was transferred to him, but had held that the courtyard or the roof of the shop which has been transferred to the appellant was the property of the appellant ; but the First Appellate Authority has taken an entirely different view inasmuch it has come to the conclusion that the roof of the shop which has been transferred to the appellant is not the property of the appellant. This changed view could not be taken by the Appellate Authority, accord ing to counsel, because the respondent had not preferred an appeal against the order of the Rent Controller.

5. The first and third contentions of counsel can be dispose of briefly. The third contention that the First Appellate Authority could not reject the appeal on a ground different from the one which was taken before the Rent Controller, in the absence of an appeal by the respondent against that order of the Rent Controller, is not Sound. Tue Rent Controller Clad dismissed the application of the appellant; therefore, the order of the rent Controller was in favour of the respondent. In these circum stances, the respondent could not go in appeal from that order When the appellant preferred the First Appeals the respondent could support the order of the Rent Controller on a different ground from the one on which the Rent Controller had given his decision. This is clear from Order XLI, rule 22, C. P. C. The Appellate Authority was thus entitled to dismiss the appeal on the ground on which it has done so.

6. The first contention that the mere occupation of premises makes the occupant a tenant of the transferee of the premises under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 is not correct, because the tenancy that is contemplated by the section is on the terms and condi tions of the tenancy of the previous occupation. If, for instance, the previous occupant was a trespasser, he does not become a tenant merely because the premises is transferred by the Settlement Department.

7. Overruling the first and the third contentions of counsel for the appellant, I come to his second contention which to my mind, involves an important consideration. Counsel for the appellant has emphasised that, according to the order, Exh. 22, the appellant is the transferee of the shop which has no 'Construc tion. This shop has been treated as one unit bearing No. 2 (D‑1118). This unit, according to the order, is complete in itself. The other part consists of a shop on the ground floor with a. residential superstructure above it. The residential superstructure is declared in the order to be in the possession of the respondent. The unit in which the residential superstructure is situated on the first floor bears No. I (D‑1117/ 1‑2).

8. The above division of the units does lead to the conclusion that the shop which has no superstructure on it has been transferred as a complete unit to the appellant. The appellant is thus the transferee of the shop as well as of its roof. But the question that arises here is as to whether on the basis of this right and title the appellant can evict the respondent from the roof of his shop.

9. The answer to the above question has been given by the Rent Controller as well as by the First Appellate Authority in the negative. The Rent Controller's view was that the eviction of the respondent would create such a difficult and untenable situation that the relief could not be granted. He declined to grant the relief in exercise of the discretionary power conferred on him by subsection (2) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. The First Appellate Authority also came to the conclusion that the respondent could not be evicted from the roof of the shop because such eviction would result in confining the respondent in a cage which had no inlet or outlet. He has, therefore, declined to evict the respondent and has supported the action on the ground that the ownership of the roof of the shop which has been transferred to the appellant was not granted to him. There is no doubt that, on the facts admitted by counsel for the parties, there is no access or exit available to the respondent to or from the residential superstructure that has been transferred to him, excepting by the staircase and the roof of the shop which has been transferred to the appellant. It is also obvious from the description of the situation of the residential superstructure that has been given by counsel for the parties that, not only the right of passage but perhaps also the right to light and stir might be involved. There is nothing to indicate whether the right to light and air is actually involved or not, but it is clear that the right of passage is necessary for the enjoyment of the residential superstructure. Counsel for the appellant has not been able to deny the necessity of way for the respondent, but he has contended that the respon dent can make use of the roof and pay rent for doing so. This is a question which needs the decision as to what is the nature of the right of way. If it is an casement of necessity, then the respondent is entitled to use the roof and the staircase without paying any compensation for doing so. Moreover, there is no proof on the record that the occupant of the residential premises was paying any rent to the Custodian's Department for using the roof and the staircase immediately before the transfer of the property to the appellant.

10. The Rent Controller as well as the First Appellate Authority have been impressed by the situation that allowing the eviction of the respondent from the roof amounted to making the use of the residential portion by the respondent an impos sibility. Both of them have tried to find ways out of this situation. To my mind, in view of the terms of the order of the Deputy Settlement Commissioner (Exh. 22), it is difficult to conclude that the appellant is not the owner of the shop along with its roof; but there is nothing in that order to indicate as to whether the respondent was entitled to use the roof of the shop and the staircase as a passage or not. Therefore, consistently with that order of the Deputy Settlement Commissioner, it is possible to come to the conclusion that the respondent has the easement of necessity to use the roof and the staircase as a passage. These are not the proper proceedings for giving a declaration respecting the extent of the right, but there is enough reason and material on the record for coming to the conclusion that the respondent cannot be held to be the tenant of the appel lant for using the surface of the roof of the shop of the appellant or for using the staircase as an access to his residential superstructure.

11. The above conclusion leads me to the final decision that this appeal cannot be accepted. It is, therefore, dismissed with costs.

K.B. A.

Appeal dismissed.

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