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Writ Petition No.4919 of 1981, heard on 19th March, 1986.

‑‑‑S.13‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.30‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2‑‑Eviction application‑‑Notice under S.30‑‑Requirement of‑‑Eviction application against tenant, having been filed by lawful transferee of house, long after repeal of Act XXVIII of 1958, notice under S.30 thereof, held, was not required to be served on tenant prior to filing of ejectment‑application.

Mian Nisar Ahmad for Petitioners.

Ch. Haji Ghulam Haider for Respondents Nos.1 and 2.

Nemo for Respondents Nos.3 and 4.

Date of hearing: 19th March, 1986.

This Constitutional Petition arises out of an ejectment petition relating to House No.109/P, Munshi Mohallah, Gali No.6, Ward No.5, Faisalabad.

2. The aforementioned house was purchased through public auction from the Settlement Department by, Muhammad Moosa Khan, the predecessor‑in‑interest of the petitioners herein on 28‑2‑1968. The Permanent Transfer Deed was issued in his favour on 15‑4‑1968.

3. The transfer of the house in question to Muhammad Moosa Khan was assailed through Writ Petition No.428/R/1968, by respondents Nos.1 and 2, hereinafter referred to as the respondents. The writ petition was, however, dismissed on 13‑12‑1973.

4. After serving a notice on the respondents requiring them to pay the rent and on their failure to do so, Muhammad Moosa Khan, aforesaid, the predecessor‑in‑interest of the petitioners filed an ejectment petition before a learned Rent Controller, Faisalabad, on 28‑3‑1977, seeking eviction of the respondents on the ground of default in payment of rent, subletting and damages to the premises in question. It was, inter alia, alleged in the eviction petition that originally one Muhammad Abdullah Khan was in occupation of the premises as an allottee by the Rehabilitation Authorities, but in 1961, he put the respondents in possession thereof and thus their status was that of sub‑tenants. The eviction application was, of course, resisted by the respondents who maintained that relationship of tenant and landlord did not subsist between the parties and that eviction application was not competent because notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, was not duly served on them before filing the eviction application.

4. On the pleadings of the parties, the learned Rent Controller framed the following issues:‑‑

(1) Whether the relationship of landlord and tenant exists between the parties

(2) Whether a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, was necessary, if so, what is its effect

(3) Whether a simple notice was served on the respondents by the petitioner, if so, its effect .

(4) Relief.

5. After recording the oral as well as documentary evidence adduced by the parties, the learned Rent Controller, vide his judgment, dated 14‑2‑1980, found that the relationship of landlord and tenant existed between the parties and that since the respondents occupied the premises in question after 1958, they were no: entitled to the protection contained in section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and that they admittedly did not pay any rent to Muhammad Moosa Khan, the lawful transferee of the house in question, they were, therefore, defaulters in payment of rent. Consequently, the eviction of the respondents was ordered.

6. The respondents preferred an appeal and the learned Appellate Authority i.e. an Additional District Judge, Faisalabad, accepted the appeal by concluding that the existence of relationship of landlord and tenant between the parties was not proved. He, therefore, set aside the order of eviction of the respondents. It was so ordered, vide his judgment, dated 7‑10‑1980.

7. The aforesaid judgment, dated 7‑10‑1980 has been assailed through the present writ petition. It is noteworthy that during the pendency of the ejectment petition, Muhammad Moosa Khan had died and was survived through his legal representatives, the petitioners herein.

8. The contention of the petitioners and their predecessor‑in‑interest was that the predecessor‑in‑interest of the petitioners was a lawful transferee of the premises in question by the Settlement Department. These premises were transferred in his favour as a result of public auction. The P.T.D. was duly issued in his favour. It was also averred that the respondents were in occupation of the premises at the time of the transfer in favour of the petitioners' predecessor‑in‑interest; they were made to occupy these premises by Muhammad Abdullah Khan, the original allottee by the Rehabilitation Department. The claim of the respondents on the other hand was that since 1947, they were in possession of the premises as refugees and, therefore, they were entitled to the protection under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The learned Additional District Judge has based his impugned judgment on the reasoning that the plea of the petitioners and their predecessor‑in‑interest was self‑contradictory inasmuch as on one hand they claimed that by operation of law relationship of landlord and tenant got established between the predecessor‑in -interest of the petitioners and the respondents but on the other hand they maintained that the respondents were not entitled to the protection under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. He was of the view that both these pleas were mutually destructive.

9. The contentions of both the parties have been considered and fully analysed. The view expressed by the learned Additional District Judge has also been fully noticed. As a matter of fact, the learned Additional District Judge failed to keep in view this aspect of the matter that the learned Rent Controller has come to a positive conclusion on a question of fact that originally the house in dispute was in possession of one Muhammad Abdullah Khan as allottee by the Rehabilitation Department and that the said Muhammad Abdullah Khan put the respondents into possession of the premises in 1961 and, therefore, qua the predecessor‑in‑interest of the petitioners who was a lawful transferee of the house in dispute from the Settlement Department, relationship of landlord and tenant got established between the parties ,by operation of law. Non‑service of notice‑required under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, on the respondents is not fatal in the present case. Admittedly, the petitioners' predecessor‑in‑interest filed eviction application against the respondents in. March, 1977 i.e. long after the repeal of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and thus at the time of the filing of the ejectment application, section 30 ibid was not available and not in existence. No notice as contemplated under that section was required. The predecessor‑in‑interest of the petitioners, however, served a simple notice on the respondents intimating them that the premises have since been transferred to him as a result of public auction and a P.T.D. has also been issued to him. This transfer in favour of Muhammad Moosa Khan was admittedly challenged by the respondents by way of a writ petition unsuccessfully. They were, therefore, fully conversant with the fact that the predecessor‑in‑interest of the petitioners was the transferee of the premises when he filed ejectment application against them. In such circumstances, by no stretch of imagination it can be said that the relationship of landlord and tenant did not subsist between the parties. An otherwise finding recorded in this behalf by the learned Additional District Judge is certainly illegal and wrongful. The respondents have admittedly not paid any rent to the petitioners or their predecessor‑in‑interest and, therefore they are defaulters in payment of rent and no further enquiry is required to be made in, this behalf. The learned Rent Controller was justified in ordering their eviction.

10. For the foregoing reasons, this writ petition is allowed and the impugned order is held to be without lawful authority and of no legal effect. There shall, however, be no order as to costs.

H.B.T Petition allowed.

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