1986 PLP 2853 (MLD)

‑‑‑S.9‑‑Deficiency in court‑fee‑‑Trial Court determined valuation of suit property for purposes of court‑fee according to actual transfer price of same entered in transfer order of Authority which was not disproved by defendants‑‑Defendants having failed to discharge burden to prove correct valuation of suit property by means of clear and cogent evidence, trial Court, held, had no reason to think that market value of suit property had been wrongly estimated‑‑Consequential provisions contained in S.9, held further, would not come into effect in circumstances. (c) Civil Procedure Code (V of 1908)‑‑ ‑‑‑S.100‑‑Suit for recovery of possession‑‑Concurrent findings of Courts below‑‑Appellate jurisdiction of High Court‑‑Concurrent findings of Courts below in suit for recovery of possession, being not open to any valid objection was upheld by High Court in second appeal. Malik Muhammad Hussain Awan for Appellants. Mian Munawar Hussain and R.A. Zafar for Respondents. Dates of hearing: 5th and 6th May, 1985, 7th and 11th June, 1986. Respondents, being the joint transferees of an erstwhile evacuee Bungalow No.309, bearing Property No.NE‑1‑R‑309, G.T. Road, Lahore, sued out the appellants on 26‑6‑1978, for recovery from them of possession of its different portions, as squatters, who had even raised certain constructions in the plots of the bungalow. Appellants admitted the transfer made in favour of the respondents but denied their claim for recovery of possession by pleading their occupation of the property since the inception of Pakistan and contested the suit by claiming protection of section 30 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958. They also raised a number of preliminary objections with regard to maintainability of the suit multifariousness and valuation thereof as also to the jurisdiction of the Court. A total of 10 issues were settled in the suit, whereof issue No.3 relates to the protection claimed by the defendants and issue‑ No.9 is with regard to the merits of the claim of the plaintiffs and was settled to determine their entitlement to the decree prayed for. Parties led their evidence and ultimately, trial Court held the defendant‑appellants not entitled to the protection envisaged by the since repealed section 30, of the 1958, Act and decided all the issues in favour of the plaintiffs. Valuation of the suit for purposes of court‑fee and jurisdiction, fixed at Rs.35,324 was found by the trial Court to be correct for the reason of its being the price entered in Schedule 'A' to the plaintiffs'. Transfer Order Exh.P.3 which had not been disproved by the defendants whose evidence did not go beyond making bare statements that it was worth lakhs of rupees. Consequently, trial Court decreed the suit on 27‑3‑1982 in favour of the plaintiff‑respondents. An appeal thereagainst taken by the defendants to the District Court has been dismissed by a. learned Additional District Judge by affirming the findings of the trial Court on all the issues. Their objection with regard to the suit suffering from multifariousness was repelled with reference to Order I, Rule 3 of the C . P . C . , as had also been done by the trial Court. Valuation of the suit on the basis of Transfer Order was found to be correct and contention of the defendants about their continuing in possession of the property since the inception of Pakistan was held to have been negatived by the unchallenged evidence of P.W.1, a Record Keeper of the Settlement Department and, on the basis of admission of Din Muhammad, one of the defendants, as D.W. 3 about non‑payment of rent to the Settlement Authorities, it was held that they did not qualify under the definition contained in section 2 (6) of the Act of 1958 and consequently they could not be entitled to the protection under section 30, of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, which had even been repealed since before the filing of the suit. Defendants have now come up to this Court by way of this Second Appeal.

2. In support thereof, learned counsel, in the first place, contended that benefit of section 30, of the Displaced Persons (Compensation Rehabilitation) Act, 1958 was available to the appellants who had not been served with the requisite notice by the plaintiff‑respondents about the transfer to them of the property: In the same strain, he also urged that the Civil Court did not have the jurisdiction to entertain and determine a regular civil suit against the defendant‑appellants who could be lawfully ejected only under the Rent Restriction Ordinance, by proving the requirements laid down therein. When pointed out that there is concurrent finding adverse to the appellants recorded by the two courts below on this question of fact on the basis of evidence led in the suit, learned counsel came out with a self‑defeating argument that on account of omission of subsection (2) of section 6 of the 1958 Act by the Amending Act LV of 1973, possession held by the defendants is not liable to be proved in the technical sense and deserves to be considered in its ordinary connotation. It is beyond comprehension as to how may the appellants then claim to remain in possession of the property? More particularly so, because the transfer to plaintiffs was made on 14‑1‑1978, subsequent to the repeal of the Act itself in the year 1975. As such, they are nothing more than mere trespassers. Since the suit was instituted in the year, 1978, therefore, there could not be any question of the appellants being entitled at that time to the service of notice contemplated by section 30, of the 1958, Act. In Ghulam Qadir v. Nazir Ahmad P L D 1980 B J 15, it was held that the A landlord's liability to issue notice to the tenant continued only so long as section 30 was in force. The obligation being do‑extensive with the law on the subject, the landlord shall not be burdened with it, after the repeal of the Act. This view has been approved by their Lordships of the Supreme Court in Muhammad Ramzan v. Ch. Bashir Ahmad PLD 1981 S C 340 in holding that in a situation as this, an eviction application cannot be filed because character and intention underlying the provisions of section 30, relating to issuance of notice and protection of tenant were of transitory and temporary character and were not intended to create any permanent rights and liabilities. It is obvious that with the omission of the definition of the word 'possession' from the Act 1958, possession of the appellants, however, back it may date to, would only be unauthorised in law and no valid objection can be taken to their being sued to be evicted out by means of a regular suit and the decree for the purpose passed against them. Contentions of the learned counsel are, therefore, repelled.

3. At one stage, learned counsel had also reiterated his plea taken in the written statement to the effect that the valuation of the suit for purposes of court‑fee and jurisdiction was not correct but, on a further consideration of the implications of his argument on the point, learned counsel decided to abandon this plea for the reason that the suit had been tried by a Civil Judge 1st Class so that even the trial Court's jurisdiction would not get affected thereby and its decree would remain protected by the provisions of section 99 of the C . P. C . Even otherwise, the defendants have not discharged the burden of proof of issue No.5 to prove the correct valuation by means of any clear and cogent evidence. Since the trial Court had not been led to think under section 9 of the Court Fees Act that the market value of the suit property had been wrongly estimated, therefore, consequential provisions simply did not come into effect.

4. The decrees passed by the two Courts below are not open to any valid objection and there does not emerge any case within the scope of section 100 of the C.P.C. Hence, this second appeal is dismissed. Parties are, however, left to bear their own costs. H.B.T. Appeal dismissed.