SADIQ ALI Versus M.D ASHRAF

K. M. A. SAMDANI, J. -This is an intra Court appeal from the order of a learned Single Judge of this Court dated 9th of November 1971 whereby the second appeal of the appellant against the order of ejectment passed by the Rent Controller and affirmed in first appeal by the Appellate Authority was dismissed.

2. The Appellant had been admittedly put in possession of the shop in question by the respondent on 1st of December 1965 on the execution of a rent-need wherein the rent was fixed at Rs 60 per month. In January 1967, the respondent applied to the Rent Controller seeking the ejectment of the appellant on the ground of default. The appellant contested the application but did not dispute the tenancy. He even pleaded part payment of rent. However, on the basis of the pleadings of the parties and the material before him, the leaded Rent Controller directed the appellant to deposit rent at the rate of Rs. 60 per month from August 1966, onwards. The order for the deposit of rent wasp used in June 1967. But/the appellant failed to comply with that order although his appeal from that order had been dismissed. So, the learned Rent Controller passed the order of ejectment against the appellant on 20th November 1967. The first appeal against that order to the Appellate Authority failed. So did the second appeal before a learned Single Judge of this Court.

3. The only point argued by the learned counsel for the appellant before us is that the shop in question being an evacuee property and the respondent having obtained the P. T. O. in respect thereof only after he had let out the shop to the appellant, the respondent is not the landlord of the appellant and in any case the appellant is entitled to the protection under section 30 of the Displaced Persons (Compensation and Rehabilitation), Act, 1958 as no notice thereunder had been served.

4. It is true that the shop in question is an evacuee property and the respondent is the transferee thereof. It is also true that the record does not indicate that the respondent was in possession of a P. T. O. on the 1st of December 1965 when he let out the shop to the appellant But it is to be noted that in the application for ejectment the respondent did not. plead statutory tenancy but based his claim on the rent-deed executed by the appellant.

Since the appellant was put in possession of, the shop by the respondent as a tenant, the latter is precluded from denying the tenancy. Regardless of whether at the relevant time the respondent was in possession of a P. T. O. or not. He became the landlord of the appellant in respect of the shop in question.

5. As to the protection under section 30 of the Displaced Persons Act it is to be observed that it is available only to such persons as happen to be in possession of an evacuee house or shop since the 20th day of December it 1958 in view of the definition of the term "possession". In the present case the appellant came to occupy the shop only on the 1st of December 1965.

' The learned counsel for the appellant contends that the expression -possession" has been used in section 30 ibid not in the technical sense i.e., not as defined under section 2(61 of the Displaced Persons Act but in the general sense of the word. He has, however, not been able to cite any authority in support of his contention.

On the contrary, we find that in Waris Khan v. Abdul Aziz P L D 1967 Pesh. 56 it was held that a person' not in occupation of an evacuee shop or house on or before 20th December 1958 but coming into possession subsequently was not entitled to the benefit of notice under section 30 of the Act:

The learned counsel for the appellant has, however, pointed out that by an amendment of the Act brought about in July 1973 by the Evacuee Property and Displaced Persons Laws (Amendment) Act (LV of 1973), the definition of possession was omitted altogether. On the basis of this amend ment he contends that the intention of the Legislature has never been to use the expression "possession" in a limited sense.

6. We are, however, of the view that the said amendment is by itself an argument against the position taken by the appellant's counsel. The amend ment it is clear that the Legislature not having been given retrospective effect, intended the definition of "possession", to be omitted only with effect from the date the Act (LV of 1973) was promulgated. Therefore, prior to the enactment of that Act, the expression "possession", used in section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, had to be under stood its the manner it was specifically defined in section 2(6) of the Act.

Further, we are of the view that section 30 of the Displaced Persons Act is applicable only to such persons as happen to be in possession of evacuee shops or houses independently of the transferees and not to those who are put in possession thereof as tenants by the transferees themselves. In the former case, the nature of tenancy is statutory and, therefore, it is governed by the statute. In the latter, the tenancy being contractual, it should be governed by the terms of the contract. Therefore, regardless of the effect of the amendment referred to above the appellant is not entitled to the bene fits of section 30 of the Displaced Persons (Compensation and Rehabilita tion) Act.

7. The result is that the order of deposit having been confirmed by the Appellate Authority and not having been further challenged by the appellant, the failure to comply therewith did render the appellant liable to ejectment. It may be mentioned here that the sole ground on which the order of deposit bad been challenged was that the respondent was not in possession of the P. T. O. till the 6th of June 1967. That ground having been held to be of no consequence, in the circumstances of the present case, the appellant was under a legal obligation to deposit rent as directed, having failed in that behalf, be was rightly, ordered to be ejected and the first and the second appeals from the order of ejectment have been rightly dismissed.

8. Accordingly this intra Court appeal is also dismissed with costs:

S. A. H. Appeal dismissed.