AYOOB AND Another vs MASJID E NOMAN

1. SALAHUDDIN AHMED, J.-This appeal by special leave is from the order of a learned tingle Judge of the High Court of bind & Baluchistan at Karachi dismissing the appellants' second appeal. The second appeal arose out of a suit by the respondent against the appellants for recovery of possession and mesne profits.

2. The respondent mosque claimed that the property in dispute was a building site, and it was transferred on the 25th of June 1962, by the Settlement Department for the purpose of establishing/extending the mosque. The respondent alleged that as some portions of the disputed land were in the unauthorised occupation of some persons including the appellants, it filed several suits against them for possession and mesne profits.

3. The appellants contested the suits against them, and inter alia, pleaded mainly that they had been running a fodder business in the premises for about 20 years without any objection from any person. Alternatively, they pleaded that on account of their authorised occupation of the premises for 20 years they had become statutory tenants under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.

4. The trial Court decreed the suit and the first and second appeals preferred by the appellants were dismissed.

5. 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 super--structure on the premises occupied by the appellants. The High Court found that the premises in dispute was neither a house nor. a shop nor an industrial concern, cinema house or printing press, and the appellants were, therefore, not protected under the provisions of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.

6. It has been contended before us that the premises in dispute is a shop within the meaning of section ?(12) of the said Act, and that the appellants are, therefore, entitled to protection under section 30 of the Act.

7. 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 the 29th of September, 1961, addressed by the appellants' 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 now under his occupation for the last 20/25 years and has been running fodder business in the partnership of his brother . . . . . . . . ."

8. The learned Additional District Judge on a consideration of the evidence found that the property in dispute had been transferred to the respondent 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; Section 2(12) of the Act reads as follows:- ---`shop' means evacuee business premises of any value in an urban area or etc .........

9. It is, therefore, evident that the shop under the Act means ---an evacuee business premises'. The appellants do not claim that it was an evacuee business premises. Their case now is that they themselves had put up some structure on the land for their fodder business. This was never their case in the written state--ment put in by them. Nevertheless the mere fact that they subsequently put up some structure on the land for their business after they had come to occupy it, did not make it `an evacuee business premises'. In order to be a shop it must be so treated by the Settlement authorities and transferred as such. We, there--fore, hold that the premises in question is not a shop.

10. Under section 30 of the said Act, protection is given to a person in possession of any evacuee house or shop etc. The section contemplates a person who has come to occupy the property in question authorisedly. In the present case the finding of the learned Additional District Judge is that the appellants were not the tenants of the respondent m respect of the plot in dispute. The appellants do not claim that they came into possession of the property in dispute in pursuance of an order passed on or before the 20th day of December 1958, by the Rehabilitation authority etc., or under any order of the Central Government as required under section 2(6) of the said Act. The --- possession--- under section 30 of the Act is ---possession--- within the meaning of section 2(6) of the Act, which says " 'possession' means possession obtained in pursuance of an order passed on or before the 20th day of December, 1958 by Rehabilitation Authority or any other officer authorised or permitted by the Central or Provincial Governments; . . . .. . . . . . : Provided further the Central Government may, by order in writing direct that a class or classes of such persons as have not obtained possession as aforesaid shall subject to such conditions as may be specified in the order, be deemed to be in possession for the purpose of this Act". The appellants are, therefore, not in possession of the premises in dispute within the meaning of section 30 read with section 2(6) of the Act.

11. Besides section 30 applies only to an 'evacuee house or shop' and the disputed premises as already held by us is not such a shop. The appellants' contention that 'shop' under section 30 has a different meaning other than 'shop' under section 2(12) is untenable on the accepted principles of construction of a statute.

12. The appeal is accordingly dismissed without any order as to costs. We grant three months' time from date to the appellants to vacate the premises in question.