MUHAMMAD IQBAL Versus MEHRAJ DIN

The facts and circumstances in these two second appeals (S. A. O. No. 14‑' of 1970 and S. A. O. No. 486 of 1975), under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 are identical. The law point involved therein is also the same. They are, therefore, being disposed:: of by this single order.

2. The respondents in both these cases are transferees, under tha Displaced Persons (Compensation and Rehabilitation) Act, 1958, of then premises described as plots in the respective transfer documents including I'. T. O. and P. T. Ds. The appellants are admittedly in occupation thereof.

3. In the first mentioned case, there is a bailding at the spot, which is being used by the appellant for business purposes as a shop while in the second mentioned case the building at the spot is being used by the appellant therein as a house. In the former case both the learned lower Courts treated the premises as shop and on finding of default in payment of rent, ordered .eviction of the appellant. In the latter case, the learned Rent Controller dismissed the application of the landlord on a finding that the premises in question being a plot, it was not included in the properties, mentioned in section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, therefore, the appellant therein was not a statutory tenant under the respondent/landlord under the said provision. The remedy of the landlord was to file civil suit. This order was reversed in appeal with the findings that the appellant was in occupation of a house, therefore, the Rent Controller had jurisdiction to evict him; and as default in payment of rent was not . denied, order of eviction was accordingly passed.

4. Learned counsel for the appellants relying on Subedar Muhamma f Afzal v. Syed Naffis Ahmad and others ( P L D 1962 Lah. 45 ) and Ayoob and another v. Masjid e-Noman ( 1973 S C M R 604 ), have contended that the premises having been transferred to the respondents as 'Plots' by the Settlement Authorities, they were not statutory tenants under section 30 of the Act and the learned Rent Controller had no jurisdiction to deal with the matter. The remedy of the respondents lay in a Civil Court. Mr. Muhammad Nawaz, learned counsel for the respondents in (S. A. O. No. 14 of 1970) relying on Nawab Syed Mohiuddin Ali Khan v. Haji ialaluddin ( 1970 S C M R 498 ), Shaukat Eli alias Shoka v. Sh. Abdul Hamid ( P L D 1969 Lah. 12 ) and Mst. Zatnab Bibi and 5 others v. Mst. Igbal Begum and another ( P L D 1974 Lah. 350 ), contended that the definitions of house and shop contained in sections 2(4) and 2(12) of the Act would not control the same expressions used in section 30 thereof. More over, the settlement authorities were required to transfer a property as plot nothwithstanding the fact that there is temporary/Kacha structure thereon. It may not be treated as shop or house for the purpose of the transfer thereof, but would be treated as such under section 30 of the Act for the purpose .of determining the questions dealt therein, including the relationship of transferee and occupant as statutory landlord and tenant. In this behalf he has particularly laid stress on the reasoning in the case of Mst. Zainab Bibi cited above.

5. With the help of the learned counsel I have gone through the relevant evidence, The factual position admitted by both the sides or proved through evidence is that the respective properties were transferred to the respondents by the settlement authorities as plots. But at the time and before the transfer, there were structures at the spot which were used by the appellant in the first case as business premises shop and in the second as a house. The original construction at the spot before the transfer was Kacha which at some stage was claimed to have been converted into Pacca by the occupants/appellants at their own expense. There is conflicting evidence as to when the Pacca construction was raised; but preponderance thereof favours the view that .the conversion took place before the respective transfers. It appears that in the settlement records the properties in dispute were entered as plots; 'Notwithstanding the fact that some Kacha structures did exist therein, one in the form of a Dhhara for tethering the milch cattle and the other, rooms for residential purposes. As these structures could not be treated as shop and house the Settlement Department transferred the same as open plots, but the ‑fact remains that before or at the most at the time of transfer, these structures had been converted into Pacca premises and were being used as shop and house. The respondents in their respective applications for eviction did not claim the transfer of the house/shop. Instead in the first mentioned case the word 'property' is mentioned with the rider that it was being used for business .purposes‑‑sale of milk. And in the second mentioned case, after having stated that the respondent was a transferee of a plot, the appellant is mentioned as occupant of the premises therein, namely, a house.

6. 'No doubt prima facle the observation of their Lordships of the ,Supreme Court in the case of Ayoob and another (at page 605 of the report) relied. upon by the learned counsel for the appellants to the effect that "In order to be a shop it must be so treated by the Settlement Authorities and transferred as such" supports their position that plots transferred as such by 4he Settlement Authorities would not be covered by the provisions contained ',in section 30 of the Act. With respect, however, it is pointed out that this observation has to be read in the context of the facts mentioned in detail in 4he judgment. It was in the circumstances of the said case that the premises therein could not be treated as shop even on the factual side. Their Lord chips noticed some facts as follows:‑

"It may be stated at the very outset that paragraph 1 of the plaint read with the written‑statement of the appellants shows that the disputed premises is a building site, and it has always been treated as such by the Settlement authorities. This fact receives support from the letter .dated 29th of September 1967, addressed by the appellant's Advocate to the respondent's Advocate, a copy of which was handed over to us by the respondent's Advocate, Mr. Ajmal Mian. The letter says that ‑the appellant Ayub Khan had been 'in possession' of the piece of land snow under his occupation for the last 20/25 years and has been running fodder business in the partnership of his brother . . . .

The learned Additional District Judge on a consideration of the evidence found that the property in dispute had been transferred to the respon dent as an open plot of land. The High Court has concurred with this finding for good reasons, and no fault can be .found with the finding."

Earlier at page 604 of the report, their Lordships noted a very important fact which has a direct bearing 'on the present discussion. The relevant observa tion reads. "The High Court on a reference to the judgments of the trial Court and the first appellate Court was of the view that the appellants' contention was primarily not that there was superstructure on the premises occupied by the appellants". Thus, the aforequoted observations show that their Lordships after taking note of the findings of the High Court and the effect of the letter dated 29th September 1967 were of the view that at the time of the transfer there was no superstructure on the premises and that the possession was "of the piece of land" whereupon "fodder business" was being run. It is not denied that fodder business can and is often run without raising any structure.

7. In the present two cases it is an admitted position that on both the plots there were structures‑‑one was being used as cattle‑shed and the other, as residential premises. When read in the above factual context, the observa‑I tion of the Supreme Court in the case of Ayoob and another relied upon by the learned counsel for the appellants would mean that if a building site is~ transferred by the Settlement Authorities as such, without there being any structures thereon, it will be treated as premises not covered either under sections 2(4) and 2(12) or section 30 of the Act. This interpretation finds analogical support from their Lordships ruling in the case of Nawab Syed Mohiuddin Ali Khan relied upon by the learned counsel for the respondents. It was held therein that a big mansion "is no doubt excluded from the defini tion of a `house' for the purposes of its transfer under the Displaced Persons (Compensation and Rehabilitation) Act, but it does not cease to be a house or a shop within the purview of section 30. A person in possession of a tenement in the big mension, therefore, becomes a statutory tenant under the transferee and is entitled to the benefits provided therein."

8. In the light of the above discussion while distinguishing the case of Ayoob and another and relying on the afore cited ruling of the Supreme Court in the case of Nawab Syed Mohiuddin All Khan I am in respectful agreement wins the view taken in the Lahore case of Mst. Zainab Bibi and others, earlier noticed. The appellants are statutory tenants and having been found defaulters in payment of rent their ejectment through the impugned orders il unexceptionable.

9. No justification has been made out for interference. Both the appeals fail and the same are dismissed. There shall be no order as to Costs.

10. Two months time allowed to the appellants to vacates both the~ premises.

Appeal dismissed..