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Second Appeal No. 1 of 1985, decided on 18th December, 1986.

(a) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑

‑‑ S. 30‑Civil Procedure Code (V of 1908), S. 9‑Building site with construction thereon transferred under Act XXVIII of 1958‑Status of occupants of site, whether tenant‑Maintainability of suit for possession and mesne profits in respect of such property‑Where property transferred to a person under provisions of Displaced Persons Act, 1.958, was a building site on which construction existed which was either used as a commercial or a residential unit; occupant of such construction would be deemed to be a tenant of the transferee‑Suit instituted by transferee against such tenant for possession and mesne profits, held, would not be maintainable.

Muhammad Moosa and others v. Shabbir Ahmad and another 1984 C L C 3227; Riazuddin v. Haji Muhammad Aslam P L D 1985 Kar. 411 and Ayoob and another v. Masjid‑e‑Noman 1973 S C M R 604 ref.

Muhammad Moosa and 2 others v. Shabbir . Ahmad and another 1984 C L C 3227 fol.

(b) Civil Procedure Code (V of 1908)‑

‑‑ S. 100‑Displaced Persons (Compensation and Rehabilitation) Act (XXVII1 of 1958), S. 30‑Second appeal‑Building site trans ferred under Displaced Persons Act, 1958 ‑Suit against occupant of such building site‑Maintainability of suit‑Suit for possession and mesne profits being incompetent with regard to building site transferred under provisions of Displaced Persons Act, 1958, finding of First Appellate Court whereby such suit was found to be maintainable was set aside by High Court in second appeal.

S. Z. A. Qureshi for Appellant.

Al'asrullah Awan for Respondents.

Date of hearing: 10th December, 1986.

This second civil appeal under section 100, C. P. C. is filed by the defendant/appellant against the judgment and decree, dated 13th of November, 1984, passed by VIIth Additional District Judge, Karachi, allowing the appeal filed by the respondent and remanding the case back to the trial Court for decision according to law. The respondents, who are transferees of an open building site, bearing No. A. M. 362, Karachi, measuring 340 sq. yds. instituted a suit for possession and mesne profits against the appellant in respect of a shop premises, which is constructed on the above plot. The appellant contested the above suit and took the plea that his possession in respect of the shop is protected under the provisions of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The trial Court tried the issue relating to the protection claimed by the appellant under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, as a preliminary issue, and, after having reached the conclusion that the appellant's posses sion over the premises was that of a tenant within the meaning of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, rejected the plan on the ground that the suit was not maintainable. The first appellate Court, however, reversed the finding of the trial Court on the above issue, and reached the conclusion that, since the premises, in respect whereof the suit was instituted by the respondent was an open building site, the protection claimed by the appellant under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act was not available and, as such, the suit before the civil Court for possession and mesne profits was maintainable. On such consideration, the judgment and decree of the trial Court was reversed and the suit was remanded back to the trial Court for decision according to law. Mr. Zaheer Qureshi, learned counsel for the appellant has contended before me that, in view of the decision in the cases of Muhammad Moosa and others v. Shabbir Ahmad and another (1984 C L C 3227) and Riazuddin v. Haji Muhammad Aslam (P L D 1985 Kar. 411), the appellant shall be deemed to be a tenant of the shop on the plot and was protected under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The learned counsel for the respondent, on the other hand, contended that, in view of the decision of the Supreme Court in the case of Ayoob and another v. Masjic‑e‑Noman (1973 S C M R 604), a person in possession of the building site shall not be deemed to be protected under section 30 of the Displaced Persons (Compensation and Rehabilita tion) Act and, as such, the learned first appellate Court was right in holding that the suit was maintainable and correctly remanded the case back to the trial Court for decision according to law. It is an admitted position in the case that the respondents are the transferees of an open plot, which was transferred to them under Settlement Scheme No. 6 on the basis of the construction raised by them over the plot. It is also an admitted position that the shop, which is built on the above plot, was in possession of the appellant prior to the transfer of the plot in favour of the respondents. The only question which, in these circumstances, arises for determination in the case is, whether, by virtue of being in possession of the shop constructed on the open plot, the appellant was entitled to the protection under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act or not. In the case of Riazuddin v. Haji Muhammad Aslam decided by a learned Single Judge of this Court and relied by the learned counsel for the appellant, it was held that a property which was transferred to a person under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, as a building site, and there were unauthorised constructions on the plot, 1 the occupants of such construction will be deemed to be a tenant and were amenable to the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959. Similarly, in the case of Muhammad Moosa and others v. Shabbir Ahmad and another a Division Bench of this Court held that in the case of an open plot, which is purchased by the transferee from the Settlement Authorities in open public auction, and over which the person in possession had raised the construction, which was used either as a commercial or residential unit, the occupants shall be deemed to be a tenant within the purview of 'section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and statutory tenancy is created in their favour. In the above cited Division Bench case, the case of Ayoob and another v. Masjid‑e‑Noman cited by the learned counsel for the respondent, has not only been referred, but, after full discussion, has been distinguished. The ratio decidendi in the case of Muhammad Moosa )and 2 others v. Shabbir Ahmad and another supports the contention of the learned counsel for the appellant that, where the property transferred to a person under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, is a building site on which construction existed, which is either used as a commercial or a residential unit, then the occupant of such construction shall be deemed to be a tenant of the A transferee within the meaning of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The above cited case having been decided by a Division Bench of this Court is binding on me as a Single Judge, and, therefore, I hold that the suit instituted by the respondent against the appellant for possession and mesne profits was not maintain able, as the appellant shall be deemed to be a tenant in respect of the shop premises on the above building site, which was transferred to the respondent, within the purview of section 30 of the Displaced Persons (Com pensation and Rehabilitation) Act in view of the decision in the case o B Muhammad Moosa and 2 others v. Shabbir Ahmad and another. I accordingly accept the appeal, set aside the judgment and decree passed by the first appellate Court and restore the order of the trial Court. In the circum stances of the case, there will be no order as to costs.