Find a Lawyer

Second Appeal No.141 of 1977, decided on 5th April, 1987.

---S.13--Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.30--Ejectment--Notice of transfer of property to person in possession--Statutory tenant could not be ejected without calling upon him to pay rent after the transfer.

Khuda Dad Khan v. Muhammad Abdul Hanan and 6 others 1980 C L C 500; Abdul Rehman through his Legal Heirs v. Prof. Ghulam Rasool Tanvir and another P L D 1987 S C 45 distinguished.

E. A. Evans v. Muhammad Ashraf P L D 1964 S C 536 rel.

---Ss.13 & 15(4)--Ejectment on ground of default in payment of rent- Second appeal--Finding of fact--Concurrent finding of Courts below that there was no default in view of remission of rent by tenant through money orders found to be in consonance with evidence on record and not perverse--Such finding, being a concurrent finding of fact, held, could not ordinarily be interfered with in second appeal in absence of perversity or without being contrary to record.

---Ss.13 & 15(4)--Ejectment on ground of sub-letting of premises- Concurrent finding of Courts below on question of sub-letting based on evidence on record--Landlord's own witnesses supporting tenant's case--Courts below, on basis of evidence therefore, could hold that the sub-letting was not proved.

---Ss.13 & 15(4)--Ejectment on ground of alteration made in premises- Finding of Courts below regarding alleged alteration supported by evidence on record--Rent Controller finding that the ground of alteration was vague--Courts below, on basis-of evidence on record therefore, could have taken the view which had found favour with them.

Munawar Abbas for Appellant.

M. Zahiruddin Khan for Respondents.

Date of hearing: 5th April, 1987.

This second appeal is directed against the Judgments dated 17-6-1974 and 18-3-1977 passed by the learned Joint Civil Judge and Rent Controller, Ghotki and the learned IIIrd Additional District Judge, Sukkur in Rent Application No.54 of 1972 and Civil Miscellaneous Appeal No.47 of 1974 respectively.

2. The brief facts leading to the filing of the above Second Appeal are that the property, bearing No.D-386, situated on the upper floor was transferred to Tufail Ahmed brother of the appellant in 1963. The appellant had served a notice on the respondent No.l as the attorney for his said brother under Section 30 of the Displaced Persons Compensation and Rehabilitation Act, 1958 (hereinafter referred to as the Act), in response to which the respondent No.l sent rent through money order. However, it seems that subsequently the appellant's brother surrendered the property to the Settlement Department and the same was transferred to the appellant by P. T .O. No.142252 a P.T.O. dated 16-6-1964 (Ex.55-A). The appellant sent a notice dated 1-11-1966 (Ex.55-B) to the respondent, which was replied to by the respondent No.l on 11-11-1966. After that the appellant filed the aforesaid rent application on the grounds of unauthorised alteration in the premises, sub-letting and default. The application was resisted by the respondent No.l. On the basis of the pleadings of the parties as many as 8 issues were framed. The appellant examined himself and P.Ws. Tekamdas, Muhammad Ramzan and Manzoor Ahmed Exs.55, 56, 57 and 70 respectively, whereas respondent No.l examined himself and D.W. Ishtiaque Exs.82 and 83 respectively. The learned Rent Controller after hearing the parties dismissed the above Rent Application by the aforesaid Judgment dated 17-6-1974. The appeal filed against the same was also dismissed by the learned Additional District Judge, Sukkur by the aforesaid Judgment dated 18-3-1977. The appellant being aggrieved by the aforesaid two judgments has filed the present second appeal.

3. In support of the above appeal, Mr. Munawar Abbas, learned counsel for the appellant has urged as follows:-

(1) That since respondent No.1 immediately upon issuing of P.T.O. had become tenant of the appellant by virtue of Section 30 of the Act, he was obliged to pay rent even without service of any notice and since it was not done and in fact rent was never tendered to the appellant, there was admitted default.

(2) That the sub-letting was proved on the basis of record and, therefore, the learned two Courts below erred in disallowing the appellant's application.

(3) That alteration was also proved but the learned two Courts below erred in rejecting the above ground.

4. On the other hand Mr. Zaheeruddin Khan learned counsel for the respondent has urged as follows.--

(1) That at no point of time the appellant had served a notice upon the respondent No.1 informing him that he was transferred the suit property by the Settlement Department, but factually the prior notice was served by the appellant on behalf of his brother Tufail Ahmad.

(2) That there was no default on the part of the respondent No. 1.

(3) That the two Courts below have rightly held that the appellant had failed to prove grounds of sub-letting and unauthorised alteration impairing the value or the utility of the suit property.

5. In furtherance of his first submission, Mr. Munawar Abbas has referred to the case of Khuda Dad Khan v. Muhammad Abdul Hanan 6 others reported in 1980 C L C 500 and the case of Abdul through his Legal Heirs v. Prof. Ghulam Rasool Tanvir and another, reported in P L D 1987 Supreme Court 45.

In the first case a learned Single Judge of the Lahore High court held that Notice under provision (b) to sub-section (1) has nothing to do with creation of relationship of landlord and statutory but covers intimation of factum of transfer and if the notice served within one month of transfer the period would commence date of transfer but if served later, then from date of receipt of such notice.

Whereas in the second case the Hon'ble Supreme Court held that scheme of Section 30 of the Act is to create by the use of a deeming clause of relationship of landlord and tenant between the transfer and the person in possession of the property and that the relationship is on the same terms and conditions as to the payment of rent or otherwise on which he held it immediately before transfer.

On the other hand Mr. Zaheeruddin Khan has referred to the of E.A. Evan- v. Muhammad Ashraf reported in P L D 1964 Court 536 in which inter alia, it was held that notice of demand to pay rent under Section 30 (1) of the Act strictly in terms the Act was necessary before depriving a tenant of protection of said section.

In my view, the cases cited by Mr. Munawar Abbas do not lay down that a statutory tenant by virtue of Section 30 of the Act can be ejected without even calling upon him to pay rent after the transfer. The view taken by the honourable Supreme Court in the above Evans, case is still good law. In the present case, it is an admitted position that the suit property was transferred by the Settlement Department to the appellant's brother, Tufail Ahmad some times in about 1963. After the above transfer the appellant acting as the attorney served a notice under the Act, in response to which the respondent No.1 remitted rent through money order to Tufail Ahmed which was not accepted. The appellant served aforesaid notice dated 1-11-1966 (Ex.55-B) on respondent No.1 on 2-11-1966. A perusal of the above notice indicates that the appellant has not stated in the above notice that his brother had surrendered the suit property to the Settlement Department and thereafter it was transferred to him. The notice only states that the suit property belonged to him. The above notice was replied to by respondent No.1 on 11-11-1966 Ex.55-C, in which the above fact that the property was transferred to appellant's brother was pointed out. It was also stated that if the property had been transferred to the appellant by the Settlement Department, he may show the P.T.O. to him thereafter he would start making payment of rent. It seems that no reply to the above reply was sent by the appellant. In my view, since the property was originally transferred to the appellant's brother, Tufail Ahmed in whose behalf the appellant had sent a notice, the respondent No.1 was entitled to ask for the P. T.O., though in the notice sent by the appellant as pointed out hereinabove he had not stated that the suit property was transferred to him by the Settlement Department. The concurrent finding of the two Courts below that there was no default in view of remission of rent by respondent No.1 through money orders seems to be in consonance with the evidence on record and is not perverse. In any case it is a concurrent finding of fact which ordinarily cannot be interfered with in a second appeal in the absence of perversity or contrary to record.

6. The concurrent finding on the question of subletting is also based on evidence on record. As rightly pointed out by the learned Rent Controller, two of the appellant's own witnesses Tekamdas and Muhammad Ramzan have supported respondent No.l's case. Even the Bank Manager (who issued the certificate, vehemently relied upon by the appellant (Ex.55-K) dated 28-11-1969) had not supported the appellant's case, though he was declared hostile by the appellant. The learned two Courts below on- the basis of the evidence could hold that the subletting was not proved.

7. As regards the alteration allegedly carried out in the premises, it will suffice to observe that the finding on the above question is also supported by evidence on record. The learned Rent Controller has poined out the vagueness of the appellant's above ground in its first notice dated 15-7-1963 Ex.82-A and second notice dated 1-11-1966 (Ex.55-B) then in the Rent Application and thereafter in his testimony. It has also been pointed out that for the first time in his statement the appellant has come out with the averment that the respondent No. 1 had demolished the wall. On the basis of the evidence on record the it learned two Courts below could have taken the view which found favour with them. The appeal, therefore, has ho merit and, therefore, it is dismissed but there will he no order as td costs.

The above are the reasoning of the short order of even date.

S.Q./K-12/K 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.