YOUSIF Versus FATEH MUHAMMAD

1. By this common judgment, I intend to dispose of the above five appeals. Briefly the facts relevant for the purposes of these appeals are that the present appellant had filed the five rent cases for ejectment of the respondents in the five appeals on the ground of default in payment of rent from very inception. The case of the appellant is that the premises in dispute in all five cases comprised of one common building which was put to auction by Settlement Authorities on 25‑2‑1967 and the price was also paid by the appellant from his compensation book in the same year. However, no final transfer documents were issued in favour of the appellant. On 11‑4‑1969 an order was passed by Additional Settlement Commissioner, Hyderabad whereby the appellant's transfer in respect of premises No. 476 and 477 only was cancelled. The appellant challenged the said order in Revision Application before Settlement Commissioner, Hyderabad which was accepted vide order dated 11‑4‑1969 and the impugned order was set aside and the disputed premises were declared to be evacuee property. It is also urged by the appellant that Chairman, Evacuee Trust Property Board was arrayed as respondent No.4 in the said proceedings. Ultimately, the final transfer documents were issued in favour of appellant on 27‑11‑1975 where after the appellant issued notices to the occupants on 10‑6‑1977. The notices were received but no reply was made, therefore, initially the appellant filed ejectment application being Rent Case No27 of 1978 against one Taj Muhammad but as subsequently it tanspired that the said Taj Muhammad had already expired the said Rent Case was withdrawn and another notice was issued to one Zahoor son of Taj Muhammad and thereafter the present rent cases were filed.

2. The respondents contested the rent cases. Their case is that the premises in dispute are the property of Evacuee Trust Property Board; and that they are tenants of the said Board; and that there is no relationship of landlord and tenant between the present appellant and the respondents. The respondents also took the plea that the rent cases are not maintainable against them.

3. The appellant filed affidavit‑in‑evidence of his Attorney Muhammad Ibrahim, who was cross‑examined while in each case the respondent filed his own affidaivt‑in‑evidence and examined one Clerk from the office of the Evacuee Trust Property Board. The Rent Controller in each case coming to the conclusion that the Rent Application is not maintainable, dismissed the same. Being aggrieved the present appellant has preferred these appeals.

4. I have heard Mr. Shamsuddin Memon, the learned counsel appearing for the appellant and Mr. Hassan 'Mahmood Baig, the learned counsel appearing for respondents. Mr. S. Jehangir Hussain Shah, Advocate has appeared for Evacuee Trust Property Board, who has given an application under Order 1, rule 10, C.P.C. in F.RA. No. 191 of 1984. The facts as disclosed from the documents placed on record before the Rent Controller show that P.T.O. in the present case was issued in favour of the present appellant; and that the matter was decided before the Settlement Authorities and lastly the order was passed by Settlement Commissioner on 18‑9‑1969 whereby the previous order of Additional Settlement Commissioner passed on i1‑4‑1969 was set aside. From this Mr. Shamsuddin Memon, Advocate has contended that for all purposes the present appellant had been the purchaser of property in dispute through an auction and the delayed issuance of final transfer documents in his favour will not come in his way of enjoyment of his rights of ownership. He has further submitted that in such circumstances, he having served the notices on the occupants, the statutory relationship of landlord and tenant stands established and thus the non‑payment of rent by the respondents would entail the penalty of their ejectment.

5. As against this Mr. Hassan Mahmood Baig, the learned counsel for respondents has pointed out that the matter did not end at the passing of the order by the Settlement Commissioner on 18‑9‑1969 or issuance of final transfer documents on 27‑11‑1975 but the further history of the case would show that the matter was taken in reference under section 8 of the Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975) and an order was passed whereby the disputed premises was declared to be evacuee trust property. This order was challenged before the Federal Secretary, Government of Pakistan, who is the Regional Authority and he remanded the case to the Chairman, Evacuee Trust Property Board on 13‑10‑1986 for further probe into the matter as according to him there appeared to be certain interpolations or forgeries in the names in the City Survey Record. Mr. Hassan Mahmood Baig, Advocate has further submitted that the very final transfer documents issued on 27‑11‑1975. are of no avail and have no legal force as by this date the Evacuee Laws stood repealed. He has further referred to the provisions of section 8 of the above referred Act XIII of 1975 and has submitted that even under section 10 of the same Act, this transfer could norbe validated as the final transfer documents in this case were not issued prior to June, 1968. It will be pertinent to make a reference to section 10 of the Act XIII of 1975 which reads as under:

6. "10. Validation of certain transfers.‑‑(l) An immovable evacuee. Trust property:‑

(a) if situated in a rural area and utilised bona fide under any Act prior to June, 1964, for allotment against the satisfaction of verified claims; and

(b) if situated in an urban area and utilised under any Act for transfer against the satisfaction of verified claims in respect of which Permanent Transfer Deeds were issued prior to June, 1968, shall be deemed to have been validly transferred by sale to the Chief Settlement Commissioner, and the sale proceeds thereof shall be reimbursed to the Board and shall form part of the Trust Pool."

7. Mr. Hassan Muhammad Baig, Advocate has further pointed out that where the question with regard to determination of status of property being evacuee trust property or not is concerned the sole Authority to decide the same is the Chairman of the Evacuee Trust Property Board and not the Settlement Commissioner after the promulgation of this Act; and that this order of the Chairman shall be final and shall not be called in question in any Court. The provisions of section 8 (1) of Act XIII of 1975 read as under:

8. "8. Declaration of property as evacuee trust property: ‑ (1) If a question arises whether an evacuee property is attached to a charitable, religious or educational trust or institution or not, it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court.

(2) .........................................................

(3) .

9. Mr. Hassan Mahmood Baig, Advocate has also placed reliance on a judgment in the case of Mst. Mariam Bai and others v. Islamic Republic of Pakistan (1993 SCMR 515) wherein it has been held by their Lordships as under:

10. "The case of Mst. Mariam Bai came up for hearing before the Sindh High Court, after the judgment in Tahir Ali's case referred to above. The same has also been impugned in Civil Appeal No. 48‑K of 1988. On account of the conflict in the judgment of the same High Court in the case of Tahir Ali and that of Mst. Hafeez Begum v. Assistant Administrator, Evacuee Trust Property (PLD 1983 Karachi 374), a Full Bench was constituted in Mariam's case. By its judgment dated 25‑2‑1990, it overruled the view taken in Tahir Ali's case and held that section 10 would not be attracted to cases in which only P.T.O. (and not a PTD) was issued prior to June, 1968 even after full payment of the price. The said decision of the Sindh High Court has been impugned in Civil Appeal No.37‑K of 1991."

11. In the case it was further held by their Lordships that in the case where an invalidity is converted into validity through a statutory intervention the provisions relating thereto have to be construed strictly.

12. In view of the above discussion and the latest judgment of the Hon'ble Supreme Court, I am of the view that the final transfer orders issued after June, 1968 in favour of the present appellant would not validate transfer in his favour , of the disputed premises, if the said premises are evacuee trust property, by virtue of the provisions of section 10 of Act XIII of 1975. However, the question remains if the said premises are evacuee trust property or not. This question is sub judice before the Chairman, Evacuee Trust Property Board before whom the present appellant is also arrayed as one of the respondents. In these circumstances, the title of the present appellant does not stand perfected and the ejectment application filed by him would not be maintainable until the matter is finally decided by the Chairman. Accordingly, the present appeals are dismissed with no order as to costs. The miscellaneous application moved in F.RA. No 191 of 1984 also stands disposed of.

13. AA./Y‑69/K Appeals dismissed.