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‑‑‑S. 22‑‑Civil Procedure Code (V of 1908), S. 100‑‑Second appeal‑ Concurrent finding of fact of two Courts below that respondent was transferee of plot in dispute from Settlement Authorities which had attained finality under S. 22 of Act XXVIII of 1958, held, could not be disturbed in second appeal before High Court.

‑‑‑Ss. 10, 19 & 22‑‑Transfer order of evacuee property, finality of‑‑In case appellants were aggrieved by transfer of plot in dispute in favour of respondents, appellants could prefer appeal against transfer order of Settlement Authorities under S. 19‑‑Appellant's failure to prefer appeal. order of Settlement Authorities, held, would attain finality under S.22.

‑‑‑9. 30‑‑Scope of S. 30‑‑Statutory tenancy‑‑Building sites Provisions of S.30 contemplating statutory tenancy of persons who were in possession of evacuee houses or shops before 20th of December, 1958, held, would not extend to possession of building sites.

‑‑‑S. 2(12)‑‑Court‑fees‑‑Mesne profits‑‑Claim for‑‑Person claiming mesne profits, held, would have to pay court‑fee for arrears claimed by him‑‑Without payment of such court‑fee no arrears of mesne profits, if any, could be awarded to claimant.

Matloob Hussain for Appellant.

Muqtadir Khan for Respondent.

This second appeal under section 100, C . P. C . is directed against judgment and decree, dated 25th June, 1971 passed by the learned District Judge, Sukkur, in First Appeal No. 69 of 1970, whereby he set aside judgment and decree, dated 31st of March, 1970, passed by the learned Civil Judge Second Class, Rohr , in suit No. 18 of 1969.

2. The respondent Khurshid Khan asserted in the Suit No. 18 of 1969 that he was transferee from the Settlement Department of a Plot No. A/1408/23 in Old Sukkur city and it had been encroached upon by the appellants Hidayatullah and Natha and one Lalu and prayed for possession of the plot and recovery of mesne profits at Rs.15 per month from December, 1964. The appellants resisted the suit challenging the ownership of the respondent and claiming to be allottees of the plot.

3. The suit was contested on the following issues:‑

(1) Whether the plaintiff is the owner of the disputed plot bearing C.S. No. A/1408/23 Old Sukkur. If so, what is the effect

(2) Whether the defendants have any authority or rights to occupy the disputed plot without permission of the plaintiff; if not what is its effect

(3) Whether the defendants are liable to be ejected

(4) What should be the decree

4. The parties adduced evidence. The learned Trial Judge held that the respondent was the owner of the plot but the appellants had occupied it on the basis of allotment orders before its transfer to the respondent and they had become statutory tenants and they could not be ejected by way of suit and consequently dismissed the suit.

5. In the appeal filed by the respondent, the learned District Judge held that the appellants were liable to be ejected from the plot and set aside the judgment and decree of the Trial Court and decreed the suit for ejectment of the occupants of the plot, except one Mat. Bushran who was not impleaded as a party, and also awarded mesne profits to the respondent/ plaintiff at the rate of ten rupees per month for a period of three years immediately preceding the filing of the suit till their eviction; but excluded the defendant No. 2, Lalu.

6. There is concurrent finding of the Courts below that the respondent was transferee of the plot from the Settlement Department and there is no obvious reason for disturbing the concurrent finding of fact. Moreover, the appellant's ownership over the plot stands established by the P.T.O, dated 6‑11‑1969 and P.T.D, dated 2‑2‑1966) produced in evidence. Accordingly, ownership of the respondent over the plot stands established by the documentary evidence. Of course, the learned Advocate for the appellant urged that the plot could not be transferred to the respondent as it was already under permanent settlement of the appellants and others. He made reference to clause 3 of Part 3 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, which reiates to the disposal of the evacuee building sites in the urban areas, and advanced, the argument that even if the appellants were treated as unauthorised occupants of the plot, the plot had to be transferred to them as they had put up construction of permanent nature thereon. In case the appellants were aggrieved by the transfer of the plot to the respondent, they could prefer appeal under section 19 of the Displaced Persons (Compensation and Rehabilitation) Act 1958, which was not done. The order of the Settlement Authorities was final by virtue of section 22 of the said Act of 1958.

7. The learned counsel for the appellant next argued that the appellants had constructed permanent residential quarters on the plot with the financial aid extended by the Government and they had become statutory tenants and they could not be ejected. But he did not make pointation of any provision of law in support of his argument. Probably he had in his mind the provisions of section 30 of the same Act, which contemplated statutory tenancy of the persons who were in possession of evacuee houses or shops before 20th of December, 1958. But the provisions of the section 30 of the Act did not extend to the possession of the building sites. Consequently, the argument also could not be sustained. The appellants did not substantiate their stand that they had been rehabilitated on the plot. Since the respondent has become the owner of the plot and the appellants are in unauthorised occupation thereon, the decree for their eviction therefrom passed by the learned District Judge Sukkur does not call for interference.

8. As regards the decree for mesne profits, the learned counsel for the appellants urged that the respondent did not pay the court‑fee for such relief and he could not be awarded mesne profits for the period preceding the day of the filing of the suit. This argument is not without substance. The respondent claimed mesne profits at specific rate of Rs.15 per month and he had to pay the court‑fee for the arrears claimed by him. But no court‑fee seems to have been paid therefore. Moreover, it was not proved as to when the appellants were called upon to vacate the plot. In the circumstances, no arrears of mesne profits, if any, could be awarded to the respondent.

9. For the reasons recorded above, the appeal is dismissed as regards the decree of the 1st Appellate Court for the eviction of the appellants from the plot; but it is partly allowed to the extent the appellants shall not be liable to pay the mesne profit for the period preceding the day of the filing of the suit. The judgment and decree of the appellate Court are modified to the extent indicated above. Appeal is disposed of accordingly. The parties shall bear their own costs.

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