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Second Appeal No.185 of 1974, decided on 19th April, 1984.

‑‑‑S.30‑‑West Pakistan Urban Rent Restriction ordinance (VI of 1959), S.13‑‑Open plot‑‑Notice under section 30‑‑Appellant occupying open plot which had been allotted to respondent‑‑Section 30 of Act being not applicable to open plots, notice under section 30, held, not necessary for taking action against appellant for his eviction from plot.

‑‑‑S.100‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13‑‑Transfer of plot of land‑‑Both P.T.D. and P.T.O. not speaking of any structure on plot transferred to respondent‑‑Settlement Authority taking property as open plot and not accepting structure thereon as part of property‑‑Appellant is possession of plot, held, having raised unlawful structure over plot and consequently using it for commercial purpose unlawfully.

‑‑‑S.2(f)‑‑Civil Procedure Code (V of 1908), S.100‑‑Rented land‑‑Plot of land transferred. to respondent taken as open plot without structure by Settlement Authority‑‑Plot of land being not covered within definition of rented land, held, should not fall within purview of Rent Ordinance.‑‑[Words and phrases].

‑‑‑S.100‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.10‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13‑‑Plot, transferred to respondent, in illegal possession of appellant who raised some structure over it which had not been accepted by Settlement Authority, thus transferring land as an open plot‑‑Neither provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958 nor West Pakistan Rent Restriction Ordinance, 1959, held, were applicable to plot of land‑‑Order of appellate Court decreeing respondent's suit of possessions as well as mesne profit maintained.

Ayub v. Masjld‑e‑Noman 1973 S C M R 604; Mst. Zainab Bibi v. Ms t. Iqbal Begum P L D 1974 Lah. 350; Syed Muhammad Murtaza v. Rehman & others 1982 C L C 1728 And Chiragh Bibi v. Rahim Bibi P L D 1964 Lah. 136 ref.

Ismail Merchant; for Appellants.

Abdul Mateen Khan for Respondents.

Date of hearing; 9th April, 1984.

This is second appeal from the judgment of IIIrd Additional District Judge, Karachi dated 20th July, 1974, whereby the learned Judge had partly allowed the appeal of the respondents against the judgments of VIIth Civil Judge 1st Class, Karachi, dated 20th August, 1971 and decreed the suit of the respondents for possession and mesne profit in respect of plot of land bearing No.79‑A situated in Artillery Maidan, Karachi.

2. This plot of land was transferred to the respondents by the Settlement Authorities and a P.T.D. was issued in their favour on 24^th February, 1964. In the P.T.O. issued for the same plot earlier on 29^th September, 1962, the property was described as open plot. The appellant was occupying that plot before it was transferred to the respondents He had raised Kutcha construction on this plot. He had also applied for permission to raise the construction, but no permission was granted either by the Custodian or any other authority.

3. The respondents gave notice to the appellant to vacate the plot as it was transferred to them by the Settlement Authorities. On refusal of the appellant to vacate the plot, the respondents filed an ejectment application under the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the said Ordinance) in the Court of VIth Civil Judge 1st Class and Rent Controller, Karachi. It was registered as Rent Case No.1008 of 1965. The rent application was dismissed by the Rent Controller by his order, dated 20th May, 1968 on the ground that the Rent Controller had no jurisdiction in the matter. This finding was based on the grounds, inter alia, that notice under section 30 of the Displaced Persons (Compensation a Rehabilitation) Act, 1958 (hereinafter referred to as the said Act) Was not given, that the said Ordinance did not apply to open plots and that the appellant was not proved to be a statutory tenant of the respondents under section 30 of the said Act.

4. These finding were not challenged by any party by way of appeal or otherwise. However the respondents filed a civil suit before VIIth Civil Judge first Class, Karachi against the appellant for possession and mesne profits in respect of the said plot. The suit was registered as No.1594 of 1968. The appellant contested the suit on the ground that Civil Court had no jurisdiction, that the respondents were not lawful owner of the structure on the plot, that the plot was being used for commercial purposes, therefore, it was covered by definition of 'rented land' under section 2(f) of the said Ordinance and as such he was statutory tenant and could not be evicted except in accordance with the provisions of the said to Ordinance and that the respondents were not entitled to any mesne profits. Sec.2(f) is reproduced as under‑‑

"2. Definition.‑‑ In this Ordinance unless there is anything repugnant in the subject or context.

(a) .

(b) .

(c)............................ .

(d)

(e)

(f) 'rented land' means any land let separately for the purpose of being used principally for business or trade;"

(g) ..

(h) .............................

(i)..............................

(j)

On the basis of the above pleadings following issues were settled by the Civil Court:‑‑

(1) Whether this Court has not jurisdiction and/or the suit is not maintainable

(2) Whether the plaintiff is not lawful owner of the property

(3) Whether the defendant lawfully raised construction on the plot and what is its effect

(4) Whether defendant is wrongly using the premises for commercial purpose and what is its effect

(5) What is effect of termination of tenancy of defendant by plaintiffs through notice

(6) Whether plaintiff is entitled to rent or mesne profits, if yes, for what period and at what rate

(7) What should the decree be "

5: After recording evidence of the parties, the learned Civil Judge was of the opinion that the respondents were the‑lawful transferees of the open plot, that the appellant had lawfully raised construction over the said plot and was using it for commercial purposes and as such the premises fell under the definition of 'rent land' under section 2(f) of, the said Ordinance. Hence it was held that the Civil Court had no jurisdiction to evict the appellant from the rent land. The learned Civil Judge, however, decreed the suit of the respondents for mesne profits only by his judgment, dated 20th August, 1971.

6. Against this judgment, the appellant filed appeal before the IIIrd Additional District Judge, Karachi being Civil Appeal No. 178 of 1971 which was partly allowed as stated above, by his judgment, dated 20th July, 1974. The learned Additional District Judge was of the view that the open plot was transferred to the respondents in open auction, that there was no evidence on the record to suggest that the appellant had raised construction over this plot with the permission of the authorities concerned, hence the premises were not covered by the definition of 'rented land' and that the Rent Controller had rightly dismissed the ejectment application of the respondents on the above grounds. He was further of the view that the Civil Court had jurisdiction in the matter and that the respondents were entitled to get possession of the open plot from the appellant alongwith the mesne profits. Thus the appeal was allowed. This judgment of the learned IIIrd Additional District Judge has been challenged by the appellant in this appeal. There are certain points of fact which stand proved from the record. Firstly, the appellant has not been proved to be statutory tenant of the premises in question. This finding of the learned Rent Controller in Rent Case No.1008 of 1965 had become final because it was not challenged by any party in appeal. Secondly, the learned 1st Appellate Court has rightly held that there was not an iota of evidence to prove that the appellant had raised construction on the open plot with lawful permission. This finding of the 1st Appellate Court is quite consistent not only with the evidence on record but also with the averments of appellant himself in his written statement which he had filed before the Civil Judge. In para. 2 of the written statement the appellant states as under:‑‑

"2. That the contents of para. 2 of the Plaint are denied. The defendant submits that .the property in suit was let out to him by the original Hindu owners for business purposes in 1948. He then raised permanent construction over the said plot at a cost of about Rs.20,000 after submitting the requisite plan of the construction to the Custodian Department. The‑ defendant has been using the said property for commercial purposes even since his occupation thereof."

He does not state in the above para. that any permission was granted to him by the Custodian Department for raising the construction. In this deposition appellant Abdul Rehman (Exh.15) categorically states that "the construction plan was not approved by K.M.C. or any other Authority". The 1st Appellate Court was, therefore, justified in holding that the construction raised by the appellant on the plot was unlawful and un authorised.

7. In view of the above factual position, it is to be seen whether the provisions of the said Act or of the said Ordinance are applicable to the present case. Section 30 of the said Act applies to house, shop, industrial concern, Cinema house or printing press. It does not apply to open plot of land. Thus the appellant could not claim to be a statutory tenant of the plot in question under section 30 of the said Act, nor any notice under section 30 was necessary for taking action against him for his eviction from the plot.

8. So far as the applicability of the said Ordinance is concerned, the P.T.O. and the P.T.D. issued in favour of the respondents show that the property is an open plot. The P.T.O. has been produced by the appellant as Exh.6 in the trial Court's record, while the P.T.D. is Exh.7. None of these documents speaks of any structure on this plot. It is thus clear that the Settlement Authorities have taken this property as an open plot and have not accepted structure thereon as part of the property transferred to the respondents. In these circumstances the First Appellate Court had rightly held that the appellant had raised unlawful construction over this plot and consequently was using it for commercial purposes unlawfully This being the factual position the open plot cannot be said to fall under the definition of 'rented land' under section 2(f) of the said Ordinance and as such the said Ordinance was rightly held to be inapplicable in the case. Section 13 of the said Ordinance lays down that only tenants of shops, buildings and rented land can be evicted by the landlords under the provisions of the said Ordinance. A plot of land which is not covered by the definition of 'rented land' shall, therefore, not fall within the purview of the said Ordinance.

9. Reference in this connection may be made to decision of Supreme Court in the case of Ayub v. Masjid‑e‑Noman 1973 S C M R 604 in which it has been held that section 30 of the said Act applies only to evacuee house or shop and not to building site. In the case of Mst. Zainab Bibi v. Mst. Iqbal Begum P L D 1974 Lah. 350 it was held by a learned Single Judge as under:‑

"12. The further argument of the learned counsel for the appellants that the construction belonged to the appellants is devoid of any force. The building site was inter alia acquired under section 4 of the above‑Act free from all encumbrances. Moreover, an unauthorised construction would be in the nature of accretion to and would form part of the evacuee property or .the property acquired on behalf of the Central Government as held in Shamim Khatoon v. Settlement and Rehabilitation Commis sioner P L D 1967 Kar. 315 and the remedy of the appellants was to get a charge created for the amount invested by them. It was, held in the case that:‑

'The ordinary law of the Land is that if a tenant or an occupant of a tenement adds some further construction in a building it would become an accretion to the building enjoyable by .the owner of the property. It is in the nature of accretion to the property. Recently, this point was considered by a Division Bench of this Court in Writ Petition No. 820/1962, decided on 27th August, 1965, to which I was also a party. In that case, it was urged by the petitioner that the construction raised by him was an evacuee property and could not be transferred under the Settlement Scheme. This contention was repelled by the Division Bench. My Lord the Chief Justice while dealing with this aspect of the case observed as under:‑‑

'In view of the above provision the amount that the petitioner may have invested in putting up the construction on the first floor of the building would be a charge on the property to the extent that such investment is accepted by the Chief Settlement Commissioner, and no more. Any addition to the evacuee property would form part of the same and it will be open to the Department to dispose of the property as it exists.'

In view of these clear observations the contention of the Department that the construction raised by the petitioner could not be taken into consideration for purposes of transfer has no force whatsoever.

It may be stated that the decision in the Division Bench case was reversed in appeal by their Lordships of the Supreme Court in Muhammad Swalih v. Chief Settlement Commissioner, Lahore on another ground but the point under Reference No.2 was not overruled or dissented from.

10. The above principles would not apply to the present case because the unauthorised construction was not accepted by the Settlement Autho rities, who had transferred only open plot to the respondents without taking into consideration the temporary structure raised by the appellant thereon. The above decision was also referred to by Lahore Nigh Court in the case of Syed Muhammad Murtaza v. Rehman and others 1982 C L C 1728 in which it was held as under:‑‑

"8. In Zainab Bibi v. Iqbal Begum P L D 1974 Lah. 350 cited by the learned counsel for the appellant, the structure was in existence before the transfer of the property to the respondent and the unauthorised construction over the plot was held in the nature of accretion to the plot belonging to its transferee. After holding that the case was covered by the Rent‑Restriction Ordinance it has been observed at page 357 at the report that:‑ In view of the finding that the property in dispute must be taken to have been transferred alongwith the construction thereon, although it may be a building site under the above Act, it cannot be doubted that it falls within the definition of 'house' or 'residential building' under the above Ordinance."

11. Mr. Ismail Merchant, learned counsel for the appellant has also referred to the case of Chiragh Bibi v. Rahim Bibi PLD 1964 Lah. 136 in support of his plea that even unauthorised construction on the plot would form part of the evacuee property any shall be deemed to have been transferred to the respondents, as such, therefore, section 30 of the said Act and section 13 of the said Ordinance shall apply. This case is also distinguish able because the Settlement Authorities have not accepted the structure to be part of the property and have transferred the property only as an open plot.

12. The structure on the plot in question was not treated as 'accretion' to the property by the Settlement Department probably for the reason that either the structure was raised after the transfer thereof to the respondent on the appellant had never applied to the department for creating a charge upon the property in respect of the structure. Therefore, the rules laid down in the decisions cited hereinabove shall not be attracted to the facts of the case.

13. For the above reasons I hold that neither the provisions of the said Act nor provisions of the said Ordinance were applicable to the plot in dispute. The appellate Court was, therefore, justified in setting to aside the order of the Civil Court in respect of possession and in decreeing the suit of respondents for possession as well as mesne profits.

Consequently the appeal fails and is dismissed with costs.

M.Y.H. Appeal dismissed

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