Find a Lawyer

Second Appeal from Original Order No. 485 of 1979, decided on 9th July, 1980.

‑‑ S. 13 and Displaced Persons (Compensation and Rehabilita tion) Act (XXVIII of 1958), S. 30‑Ejectment‑Relation of landlord and tenant‑Transfer of plot in favour of landlord proved Relationship of landlord and tenant established as such‑Appellant tenant not paying or tendering rent even after service of notice under S. 30 of Act‑Ejectment order passed by first appellate Court upheld in circumstances

Akhtar Ali Pervaiz v. Altafur Rehman P L D 1963 Lah. 390 ; Abdul Khaliq Qureshi v. Saeed Hassan Shah and others 1979 C L C 118 and. Muhammad 1qbal v: Mehraj Din P L D 1976 Lah. 831 ref.

Abdus Samad Hashmi for Appellant.

Ch. Muhammad Saeed for Respondent.

Date of hearing : 6th July, 1980.

The respondent filed a petition for the eviction of the appellant from Plot No. 784 which had been allotted by the Settlement Department to the respondent by P. T. D. No. 111, dated 14th November, 1973. The appellant was served with a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 but he refused to receive the same. The appellant neither paid nor tendered any rent from the date of the transfer as per the terms of the said notice. The appellant contested the petition for eviction which proceeded only on the ground of default in the payment of rent by denying the existence of relationship of landlord and tenant. The precise defence of the appellant was that he was not in possession of the plot transferred to the respondent but claimed possession of Plot No. 786 for which he said that he himself had applied for the transfer of the same. Other techni cal objections were taken, including that the property had not been correctly described in the petition. The preliminary objections were reflected in the following issues :‑

(1) Whether the property in dispute has not been properly described if so, its effect

(2) Whether the respondent has no cause of action

(3) Whether the petition cannot proceed in the present form

(4) Whether there exists any relationship of landlord and tenant between the parties

(5) Relief.

The learned Rent Controller, Sheikhupura vide his order dated 20th January, 1979 dismissed the petition for eviction filed by the respondent holding that the property had not been properly described and that the petition for eviction could not proceed in the present form. Issue No. 4 was decided in favour of appellant by holding that no relationship of landlord and tenant subsisted between the parties. The respondent filed an appeal which was accepted by the learned Additional District Judge, Sheikhupura vide his order dated 28th May, 1979 which has been challenged in the present appeal.

2. The learned counsel for the appellant submitted that the finding .of the learned Additional District Judge stood vitiated on account of the misreading of the evidence. and by ignoring important evidence on record. On this assertion the record of the case had been. sent for and the stay order was granted subject to notice. The respon dent is represented through his counsel in pursuance to the said notice who has assisted me in the perusal of the record. The learned counsel for the appellant failed to point out any misreading of the evidence on record. The findings are based on proper appreciation of evidence and taken into consideration the entire material evidence on record. The learned counsel for the appellant has precisely raised the same conten tions as have been satisfactorily replied by the learned Additional District Judge. It was contended that the finding of the learned Addi tional District Judge that the relationship of landlord and tenant did exist between the parties cannot be legally sustained as the respondent is admittedly the transferee of Plot No. 784 measuring 7 Marlas and its demarcation had been effectively carried out vide Ex. All, A perusal of this document shows that the report of demarcation of Plot No. 784 mite Pir Bahar Shah, Sheikhupura was conducted by Ghulam Rasul Settlement Inspector on 6th June, 1975 and was accepted by the Deputy Settlement Commissioner. The description of the Plot purchased by the petitioner has been completely given in the following words :‑

The aforesaid plot measuring 7 Marlas was purchased in open auction by the applicant on 28th May, 1980 the auction‑purchaser cleared the dues and now requested for its demarcation. The said plot is situated at Lahore‑Sargodha Road, which is at present in possession of Nathoo son of Jamal. The line sketch was prepared on the spot and the demarcation was given accordingly which may kindly be approved".

Similarly the Permanent Transfer Deed (Exh. A/3) contains the description of the property in the schedule to the followings effect :‑

"Plot Khasra No. 784 Bahar Shah".

In view of the above documents it could not be said that the property had not been correctly described. Once it is proved that the respondent is the transferee of Plot No. 784, therefore, the relationship of landlord and tenant shall be deemed to have come into existence by virtue of Full Bench .judgment of this Court reported as Akhtar Ali Pervaz v. Altafur Rehman (P L D 1963 Lab. 390) and Abdul Khaliq Qureshi v. Saeed Hassan Shah and others (1979 C L C 118). The learned Additional District Judge was perfectly justified in relying on a judg ment of this Court reported as Muhammad lqbal v. Mehraj Din (P L D 1976 Lab. 831) in which the property which was originally transferred as plot and later on converted into Pacca premises and which was used as residential house it was held that. the provisions of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 were attracted. The relevant observations at page 834 in paragraph 7 are quoted below :‑

"In the present two cases it is an admitted position that on both the plots there were structures‑One was being used as cattle‑shed and the other as residential premises. When read in the above factual context, the observations of the Supreme Court in the case of Ayoob and another v. Masjid‑e‑Noman (1973 S C M R 604) relied upon by the learned counsel for the appellants would mean that if a building site is transferred by the Settlement autho rities as such, without there being any structures thereon, it will be treated as premises not covered either under sections 2 (4) and 2 (12) or section 30 of the Act. This interpretation finds analogi cal support from their Lordships ruling in the case of Nawab Syed Mohiuddin Ali Khan (1970 S C M R 498) relied upon by the learned counsel for the respondents. It was held therein that a big mansion is no doubt excluded from the definition of a house' for the purposes of its transfer under the Displaced Persons (Compensation and Rehabilitation) Act, but it does not cease to be a house or a shop within the purview of section 30. A person in possession of tenement in the big mansion, therefore, becomes a statutory tenant under the transferee and is entitled to the .benefits provided therein."

3. The respondent served a notice on the appellant which he' refused to receive and the notice was duly accepted without any objection from the appellant. The appellant after the service of the notice had neither paid nor tendered any rent. The appellant did not tender the rent even after the service has been effected. No other point was urged. The appellant has failed to make out any case for interference in the order of the learned Additional District Judge. This appeal has no force which is hereby dismissed in limine.

4. The appellant requested the respondent to allow him time to deliver the possession. With the consent of the parties the appellant is allowed two months time to deliver the possession of the plot in question.

M. Y. H. Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.