MUHAMMAD ALI Versus E.H. ELAHI ALVI
1. These civil revisions are directed against the common judgment passed by the IIIrd Additional District Judge, Karachi whereby the respondents' appeals were accepted and the judgment and decree passed by the XXIIIrd Civil Judge, Karachi were set aside. I intend to dispose of the above civil revisions by this common judgment as the points involved in all the civil revisions are the same.
2. The facts leading to the filing of the above civil revisions are that open building site plot bearing No. G.R.W. 204, Garden West, Karachi measuring 1860 square yards was transferred to the respondents by Settlement Authorities vide P.T.O. No. 18494 dated 14-9-1964 and P.T.D. No. KYC/626 dated 8-6-1965 issued in favour of the respondents. The names of the respondents have been entered in survey record as owners of the said property on the basis of said transfer made in their favour. The respondents had filed suits for possession and mesne profits against the petitioners claiming that they are owners of the aforesaid plot and the petitioners are the trespassers. The petitioners resisted the suits. The petitioners had taken legal objections regarding maintainability of suits on the ground that they were tenants of the Custodian of Evacuee Property and paid rent of the property in question to the said Custodian, therefore, they were entitled to notice under section 30 of the Displaced Persons Act, 1958. The Petitioners pleaded in their written statements that the property in suits is not open plot but the same is constructed area consisting of houses and shops.
3. The trial Court framed appropriate issues. The trial Court on the assessment of evidence (both documentary and oral) came to the conclusion that the petitioners are not trespassers and held that they are statutory tenants of the respondents, therefore, they are entitled to notice under section 30 of the Act and the proper course for eviction of the tenants would be to file eviction applications and the civil suits were not maintainable.
4. The respondents went in appeals before the District Judge which were ultimately heard by the IIIrd Additional District Judge, Karachi. The appellate court on hearing the arguments advanced by the learned counsel for the parties and after perusing the R & P of the case came to the conclusion that the petitioners have failed to show their possession is protected under the Displaced Persons Act. The learned appellate Court came to the conclusion that the petitioners are statutory tenants but they are trespassers on the portions in their occupation. In this view of the matter the civil appeals filed by the respondents were allowed and the judgment and decree of the trial Court were set aside.
5. The petitioners being aggrieved against the common judgment and decree have filed the above civil revision petitions.
6. Mr. Mumtaz Ahmad Shaikh, the learned counsel for the petitioner: contended that the petitioners shall be deemed to be tenants of the horses/shop; on the plot in suit and were protected under section 30 of the Displaced Person (Compensation & Rehabilitation) Act, 1958. In support of his contention, he placed reliance on the cases reported in 1984 CLC 3227, PLD 1969 Lahore 12, PLD 1964 Lahore 136, PLD 1971 SC 573, PLD 1974 Lahore 350 and PLD 1987 Karachi 151.
7. On the other hand Mr. Muzammil Siddiqui, advocate appearing for the respondents submitted that persons in possession of building site shall not be deemed to be protected under section 30 of the Act. In support of his submission he placed reliance on the case reported in 1973 SCMR 604.
8. The main question that arises for my consideration is whether the petitioners shall be deemed to be tenants of the premises (houses/shops) in their possession on the plot in suit or shall not be deemed to be protected under Section 30 of the Act.
9. It is an admitted position that the respondents are the transferees of an open plot, which was transferred to them by the Settlement Authorities. It is also not in dispute that the petitioners were in possession of the premises (houses/shops) prior to the transfer of the plot in favour of the respondents.
10. In Shaukat Ali alias Shoka v. Sh. Abdul Hamid (PLD 1969 Lahore 12), the expression "business premises" was examined by the learned Single Judge of Lahore High Court. The question involved was whether open plot which was used for purposes of tethering cattle and running fuel wood business could fall within the ambit of section 30 of the Act creating a statutory tenancy to which provisions of sections 12 and 13 of the repealed Ordinance could apply and it was held that the plot was governed by the provisions of the West Pakistan Rent Restriction Ordinance, 1959 and proceedings for eviction from the plot filed before the Controller were competent.
11. In Mst. Zainab Bibi & 5 others v. Mst. Iqbal Begum and another (PLD 1974 Lahore 350), it was held that a plot on which structure of temporary nature has been raised and which had been transferred by the Settlement Authorities as vacant building site should be treated as a house to which the provisions of the West Pakistan Rent Restriction Ordinance, 1959 would apply and the Controller would have jurisdiction to deal with such a plot in dispute arising between the parties as disputes between landlord and tenants within the meaning of the Ordinance.
12. In Malik Ghulam Hussain v. Haji Muhammad Hayat (PLD 1971 S.C. 573) the property was involved was an open plot. Eviction proceedings were filed by the transferee against the occupant of this plot on the assumption of statutory tenancy created between the parties on the basis of provisions of Section 30 of the Act. It was observed by the Supreme Court as follows:--
13. "As already stated, under section 30 of the Displaced Persons Act, a person in possession of an evacuee property shall be deemed to be a tenant of the transferee on the same terms and conditions as payment of rent or otherwise on which he held it immediately before the transfer. The evidence in this case shows that the respondent was paying Rs. 20 p.m. to the Rehabilitation Department and Rs. 40 p.m. to Abdur Rauf, his co-allottee. In all he was paying Rs. 60 p.m. In this background, it cannot be said that the Rent Controller by fixing the tentative rent at Rs. 50 has acted arbitrarily or capriciously".
14. In Muhammad Iqbal v. Mehraj Din and another (PLD 1976 Lahore 831) the facts of the case were that two plots were transferred to the respondents under the Settlement Schemes. P.T.Ds. were issued in their favour. The appellant was in occupation of these plots which were issued as a shop and house. The respondent filed eviction proceedings on the grounds of default. The appellant denied relationship of landlord and tenant contending that there was no statutory tenancy between the parties as open plots were excluded from the provisions of Section 30 of the Act. It was held that proceedings before the Controller were competent and the eviction order was maintained.
15. In Muhammad Moosa and 2 others v. Shabbir Ahmed and another (1984 CLC 3227) a learned Single Judge of this Court held that the open plots were transferred to the respondents. The case would fall within the provisions of Section 30. The appellants became tenants of the respondents and their ejectment could be served only through the Controller under the provisions of the Sind Rented Premises Ordinance, 1979.
16. In Riazuddin v. Haji Muhammad Aslam & 2 others (PLD 1985 Karachi 411) 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 effect of which was that it changed character and nature of the premises in dispute. The occupants of such construction shall be deemed to be tenants of the transferee within the meaning of Section 30 of the Act and the transferee has to resort to the provisions of the unrepealed Ordinance.
17. In Rice Export Corporation of Pakistan Ltd. v. Muhammad Rasib and another (PLD 1987 Karachi 153) an open building site was transferred to the respondents by the Settlement Authorities. The respondents instituted a suit for possession and mesne profits against the appellants m respect of shop premises, which was constructed on the above plot. The appellant resisted -the suit. The trial Court came to the conclusion that the appellant was a tenant and the suit was not maintainable. The respondent went in appeal which was allowed by the first appellate Court. The appellant filed second appeal in this Court which was allowed.
18. A review of these authorities therefore leads to the conclusion that the principle is well established that where the property transferred to a person under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958, is a building site on which construction existed which is either used as a shop or a house, then the occupant of such construction shall be deemed to be a tenant of the transferee within the meaning of section 30 of the Act.
19. For the reasons given above, I hold that the suits instituted by the respondents against the petitioners for possession and mesne profits were not maintainable, as the petitioners shall be deemed to be tenants in respect of shops/houses on the plot m suit.
20. The result is that the civil revisions are allowed, impugned judgments and decrees of the appellate Court are set aside and the judgments and decrees of the trial Court are restored. In the circumstances of the case, the parties shall bear their own costs.
21. M.Y.H./M-855/K
22. Petitions allowed.