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--- S. 30 read with Central Government Notification dated 13th October 1959-Protection

of tenant-Possession, validity of-Fact of person being recorded tenant of Custodian or Settlement Authority may constitute one of ingredients for determination of validity or otherwise of possession but difficult to accept such criterion as a rule for resolution of issue whether such possession undisputed within meaning of Government notification-Question whether possession undisputed or not having not been considered by lower appellate Court, case remanded for fresh determination. [Remand of case].

Usman and another v. Hajiani Marium Bai 1978 S C M R 209 ref.

Mushtaq Ahmed Razi for Appellants.

Abdul Majeed Khan for Respondent.

Date of hearing : 7th October, 1978.

The brief facts, pertaining to this second appeal, are that the appel lants' father, Azitur Rebman is said to have been in possession of disputed premises No. 1/4 LR 8/29 Ist Floor, Poperbai Building, Luxmay compoupd, Lawrencc Road, Karachi, ever since 1950. The premises were transferred by the Settlement Department to the respondent as per PTD dated 27th April 1963. It is alleged that the respondent approached late Azizur Rehman and got the rent of the premises enhanced to Rs. 30 per month. The litigation ensued between the deceased and the respondent resulting in several cases some of which were dismissed. The respondent filed an application for the ejectment of the deceased from the disputed premises in 1964 and after contest the said application came to be dismissed by the Rent Controller on 25-51972 for want of service of statutory notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act). Since Azizur Rehman had expired during the pendency of the proceedings, the present appellants were brought on record as his heirs. The respondent filed an appeal against the order of the Rent Controller, which was allowed by the learned Additional District Judge, Karachi, on 11-10-1973. The learned Additional District Judge returned the verdict that a notice under section 30 of the Act was not necessary and the case was remanded to the Rent Controller for further proceedings in accordance with law.

2. Mr. Mushtaq Ahmed Razi, learned counsel for the appellants, contended that petitioners' late father Azizur Rehman had been in "Possession" of the disputed premises ever since 1950, and his said pos. session, being anterior to 20-12-1958, fell within the definition of the term "Possession" as defined in section 2(6) of the Act and. as such the deceased as well as the appellants were entitled to protection as envisaged in sec tion 30 of the Act. Th learned counsel referred to the finding of the Rent Controller on the said issue and pointed out that it was an admitted fact that a notice under section 30 was never served on Azizur Rehman. The question, however, which came to be discussed by the learned Additional District Judge, in the appeal, was that Azizur Rehman was not a recorded tenant of the premises since the name of one Muhammad Raza appeared in the record and as such the deceased was not entitled to protection under section 30 of the Act.

The learned counsel for the appellants contended that Azizur Rehman was admittedly in possession of the disputed premises since before 20-12-1958 and his possession fell within the extended definition of "pos session" in terms of Notification issued by the Central Government dated 13-10-1959.

3. The judgment of the learned Additional District Judge shows that he elaborately discussed the question of the applicability of the notifica tion dated 13-10-1959 but the consideration fell short on account of over emphasis on the point that according to evidence the recorded tenant of the disputed premises happened to be one Muhammad Raza. There appears no dispute with regard to the fact that Azizur Rehman had been occupying the disputed premises since before 20-12-1958. However, the question is as to whether his occupation was undisputed within the mean ing of the notification.

The fact regarding a person being a recorded tenant of the Custodian or the Settlement Authority may can stituate one of the ingredients for the determination of the question as to the validity of possession, but it is,4 difficult to accept this criteria as a rule for resolution of the issue. Mr. Abdul Majid Khan, learned counsel for the respondent, referred to judgment of the Supreme Court in the case of Usman and another v. Hajiani Marium Bai (1978 S C M R 209) where their Lordships were pleased to observe (that the petitioners in that case) were not recorded tenants of the premises in dispute and in the circumstances it was held that they could not take benefit of section 30(1) of the Act.

I have anxiously considered the observations of their Lordships in the said judgment and in my humble view the said observations are not to be read out of context. Their Lordships did not lay down the rule that if a person was not found to be a recorded tenant he must be held disentitled to the benefit under section 30 of the Act. The observations were made in the context of the facts relating to the dispute in the matter and are to be considered accordingly. In the instant case, the appellants have pro duced large number of documents of unimpeachable nature showing that Azizur Rehman had been occupying the disputed premises, at least from 1954. The question requiring consideration, therefore, would also be as' to whether the possession of Azizur Rehman was undisputed within the Is meaning of the notification which needs examination aside from the facts as to whether he was recorded tenant of the tenement in question or) not. Mr. Abdul Majid Khan, learned counsel for the respondent was unable to controvert the fact that this aspect of the case was not considered by the Lower appellate Court.

4. The upshot of the above discussion is that the order of the learned Additional District Judge is upheld in so far as it relates to the remand of the case to the Rent Controller but his finding that no notice under section 30 of the Act was necessary, is set aside as the said issue also requires fresh determination according to facts and evidence which may be produced by the parties.

The appeal is disposed of as above with no order as to costs.

M, Y. M, case remanded.

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