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Revision Application No. 21 of 1982, decided on 17th November, 1982.

‑‑ S. 115‑Pakistan (Administration of Evacuee Property) Act (XII of 1957), S. 10‑Property declared as non‑evacuee by Custodian and by High Court on appeal‑‑Title vested in respondent by finding of trial Court and appellate Court‑Applicants Dot challenging finding thus same becoming final and binding‑Acceptance of rent by Custodian from applicants and issuance of P.T.Os by Settlement Department before declaration of property as non‑evacuee, held, would create no tenancy rights in respect of non‑evacuee property Custodian, held further, could not act as agent for non‑evacuee owner for bringing about tenancy rights‑Order of Custodian and High Court declaring property as non‑evacuee being subsequent in time to order of issuance of P.T.Os., later lost their legal sanctity and had become void being issued in respect of non‑evacuee property in circumstances.

Hap v. Abdul Qavi P L D 1964 Kar. 661 and Yousaf Ali v. Muhammad Aslam Zai and 2 others P L D 1959 S C 104 rel.

Niamatullah Qureshi for Petitioner.

Naimutullah Soomro for Respondent.

Date of hearing : 17th November, 1982.

These are three connected revision applications. Since they involve common questions of facts and law, intend to dispose of the same by this common judgment. The brief facts leading to the filing of the above revision applications are that property, bearing S. Nos. 2591, 2592, 2593, situated in Ward C', Hyderabad, was treated as an non‑evacuee property. However, the same was declared as non‑evacuee property by an order of the Custodian dated 18th December, 1962. The above order was maintained by the High Court through judgment, dated 21st March, 1963 passed in Writ Petition No. 113 of 1963. Thus finally, it was held that the above property was non‑evacuee property. However, it seems that the Custodian Department had realised the rent from the present applicants before the passing of the above order, dated 18th December, 1962. The Settlement Department under the Settlement Scheme transferred the above property to the present applicants and issued three P.T.Os. on 20th November, 1959, 2nd January, 1960 and 10th April, 1961. It may be observed that before the High Court, the present applicants were parties, in the aforesaid Writ Petition. After the above decision of the High Court, it seems that the respondents purchased the above property through an agreement, dated 27th February, 1966., Exh. 30‑B. On the bass of a sale deed. dated 4th February, 1970 the name of the respondent was mutated in the record of rights as indicated from the extract from the record of rights from the city survey office Exh. 30‑A. It further seems that after the above transaction was completed, the respondent called upon the present applicants to hand over the vacant possession of the tenements in their respective possession on the ground that they were in unauthorised possession. Thereafter, suits Nos. 482/70, 483/70 and 484/70 were filed by the respondent for. possession against Karim Bux and others, Abdul Shakoor and others and Mst. Jummi and others, respectively. The above. suits were dismissed by the learned trial Court by judgment /decree, dated 21st February, 1981 on the ground that the applicants were the tenants and, therefore, suits for possession on the basis of averment that they were unauthorised occupants, were not competent, though the other issues including relating to the title were decided in favour of the respondent. The respondent being aggrieved by the above judgments/decree filed Civil Appeals Nos. 91/81, 92/81 and 93/81, which were allowed by the learned First Additional District. Judge, Hyderabad, by his judgments and decrees, dated 29th May, 1982. The' applicants being aggrieved by the aforesaid judgments and decrees have filed the present revision application.

2. In support of the above revision applications Mr. Niamatullah Qureshi, learned counsel for the applicants has made following submis sions :‑

(i) That the respondent has not acquired title to the suit property, and, therefore, he was not competent to maintain the suit for ejectment.

(ii) That since the applicants were attorned as the tenants by the Custodian and as P.T.Os. were also issued in their favour they cannot be treated as unauthorised occupants, but they were tenants as was held by the learned trial Court.

3. Reverting to the above first contention, it will suffice to observe that the documents brought on record namely, inter alia Exhs. 30‑A and 30‑B. i. e. extracts from the record of rights and the sale agreement, prima facie establish the title of the respondent to the property. However, Mr. Niamatullah Qureshi, has referred to the deposition of D. W. Shafi, Exh. 109, in order to support his contention that Ratio, who had allegedly sold the property to the respondent was‑ not the real person but he was a fake person. It may be observed that the applicants had filed suit No. 109/71 for declaration that Ratio, who had sold the property to the respondent was not the real Ratio, which was dismissed through a judg ment, dated 27th August, 1977. According to Mr. Niamatullah, the appeal against the above judgment is still pending. Be that as it may, the evidence available on record prima facie establishes the respondents title to the property and, therefore, the finding of the learned trial Court on the question of title and concurrence of the learned appellate Court to the above finding is in consonance with law. Furthermore, since the applicants had not challenged the finding of the trial Court on the question of the title, the above finding had become final and binding on the applicants for the purpose of these proceedings.

4. As regards the above second contention,. it may be observed that the learned first appellate Court had relied upon the Karachi case, namely, Haji v. Abdul Qavi (P L D 1964 Kar. 661), in which the facts were that the property was sold on 16th November, 1947 the confirmation to the sale was accorded by the Custodian on 14th June, 1954. In between the sale and confirmation, the Rehabilitation Department had allotted the bungalow in dispute to the respondent in the case. A. S. Farooqui, J. while repelling a somewhat similar argument, which has been urged by Mr. Niamatullah Qureshi, learned counsel for the applicants, observed as follows :‑

"It was argued that the defendant had come into possession of the premises as an allottee and was liable to pay rent to the Custodian and when the jurisdiction of the Custodian to receive this rent ceased he will remained a persons by whom or on whose account rent was payable for the premises in suit. It was, therefore, urged that the plaintiff could not bring an action for eviction without a certifi cate from the Rent Controller as provided by this Act. I am unable to see the logic of this argument. The property having lost its character as being an evacuee property, the allotment in favour of the defendant ceased to have any effect. His possession thereafter clearly became unauthorised. The plaintiff has at no time recognised the defendant as a tenant or has accepted any rent from him. I do not see how a person whose possession of property has become unauthorised by operation of law would be entitled to claim that rent is payable by him to the landlord. A tenancy is created by the contract. It does not come into being automatically. If I was to accept the argument of the learned counsel it would mean that a person may trespass into somebody else's property or occupy it unauthorisedly or continue in occupation unauthorisedly and then claim that be has become a tenant because rent is payable by him to the landlord. Even under the old rent Act which provided for a direction by the Controller to the landlord to let his premises to a certain person there had to bean order before that persons could be described as what was commonly known as an allottee of the Rent Controller. There was no such direction by the Rent Controller in the present case and the Karachi Rent Restriction Act, 1953, even did away with that provision of direction. A somewhat similar contention was raised in the case before the Supreme Court cited above and was repelled. I, therefore, reject this contention also."

5. It may be' observed that in the above Karachi case the reliance was placed on the Supreme Court case of Yousaf Ali v. Muhammad Aslam Zai and 2 others (P L D 1959 S C 104). However, Mr. Niamatullah, learned counsel for the respondent, has urged that the above Karachi case is distinguishable inas much as in the above case while the confirmation proceedings were pending the allotment order was made, whereas in the instant cases the Custodian had accepted the applicants as the tenants in 1949 and received the rent and further that the P.T.Os. were issued in favour of the present applicants by the Settlement Department, and, therefore, they cannot be treated as un authorised occupants. In my view, the ratio decidendi of the above Karachi case on all fours is applicable to the instant case. In the above Karachi case, it was held that the factum that the property was treated as an evacuee and was allotted as such by the Rehabilitation Department would not create tenancy rights if the property was non‑evacuee. The above reasoning' is very much applicable to the instant case, neither the acceptance of rent by the Custodian Department nor the issuance of P.T.Os. by the Settlement Department would create any tenancy rights in respect of a property, which was a non‑evacuee property. The Custodian could have acted as an agent for non‑evacuee owner for bringing about tenancy rights. It may again be pointed out that in the above writ petition before the High Court the present applicants were parties, in which it was finally held that the property in question was non‑evacuee. Since the aforesaid order of the Custodian and the judgment of the High Court are subsequent in point of time to the afore said P.T.Os. the latter had lost their legal sanctity, they were void being issued in respect of non‑evacuee property.

6. For the aforesaid reasons I do not find any merits in the above three revision applications, and, therefore, the same are dismissed, but there will be no order as to costs.

M. Y. H Petitions dismissed.

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