P L D 1975 Karachi 530 (PLP)

DORAB PATEL, J.‑These two Letters Patent Appeals have been filed against a judgment of a learned Judge on the original side of this Court dated 23rd November 1966 by which the plaintiff's suit was partially decreed. The dispute in the suit was about a plot of land near this Court bearing No. 170 A.M. This plot was originally evacuee property and I shall refer to it as the said plot. I shall also refer to the plaintiff, who died during the pendency of these appeals, as the respondent. The respondent's clam is that be had purchased the said plot for Rs. 42,625 from the Custodian of Evacuee Property (hereinafter called the Custodian) by a registered sale deed dated 4th May 1959 after obtaining the Central Government's approval. And as there were occupants on the said plot the sale‑deed contained a covenant by the Custodian to evict these occupants at the respondent's request. Accordingly, after the registration of the sale, the respondent requested the Custodian to evict these occupants, but as he did not, the respondent assessed his compensation for being deprived of the use of the said plot at Rs. 5` 0 per month, and I may explain here, that, according to him, the occupants of the said plot were the sixteen appellants in Letters Patent Appeal No. 5/1967, therefore I will refer to them as the appellants. In the circumstances stated, on these allegations, the respondent filed his suit against the Custodian and the appellants for a declaration that he was the owner of the said plot, for the eviction of the appellants from the said plot and a decree for compensation at Rs. 500 per month from the Custodian and the appellants.

2. The Custodian contested the suit as he denied liability for compensa tion. He however, expressly submitted to the jurisdiction of the Court. This is very important, because according to the written statements of some .of the appellants, the jurisdiction of the Court was barred under the Pakistan Administration of Evacuee Property Act, 1957 (hereinafter called the said Act). Then, as to the written statement of the appellants, I have to point out that appellants 2, 5, 6, 9 and 16 did not file any written statements 'The other appellants did, and their common plea was that the sale of the said plot by the Custodian to the respondent was not valid because it had not been confirmed or executed properly. Further, except for the 4th appellant, all the appellants who filed written statements claimed tenancy rights of the portions of the said plot occupied by them, and they also denied the allegation of the respondent that the structures constructed by them were temporary. Further, all the appellants who had filed written statements repudiated liability for the compensation claimed by the respon dent. and it was also pleaded by some of them that the suit was barred for misjoinder of the parties and causes of actions.

3. The respondent only examined himself in support of his claim. and it is sufficient to state here that he produced and proved the sale‑deed 4Exh. 14) executed by the Custodian in his favour. He also produced .and proved the letters relied upon by him in order to prove the Federal Government sanction to the sale of the said plot to him by the Custodian, and a letter of the Custodian dated 30th May 1959 (Exh. 16) to the Rehabilitation Commissioner. Karachi directing him to delete the said plot from Evacuee Property Register maintained to their office. However the respondent had no personal knowledge as to who the occupants of the: said plot were and he admitted in his evidence that he was relying for the purpose of the suit on a letter of the K. D, A. containing the names of the persons in occupation of the said plot, Finally it is sufficient to state here that he did not examine any person who had verified the names of the occupants on the said plot, and lie did not even attempt to show how he had claimed compensation for trespass at Rs. 500 per month.

4. The Custodian did not produce evidence, and even as to the appellants, only the 3rd, 7th and 15th appellants gave evidence. None o!` them produced any rent receipts in support of the plea of tenancy advanced by them in their written statements, and the 15th appellant even claimed try have purchased the area of" the plot in his occupation. The other two appellants claimed tenancy rights, but admitted that they had not paid rent to any body. But strange as it may seem, the 3rd appellant produced an extract of the Custodian's record (Exh. 43) on which the first appellant relied in this appeal, although this appellant did not care to give evidence himself. Finally the 7th appellant claimed that he had entered into occupation of the said plot with the permission of the evacuee owner, but this plea had not been taken by him in his written statement.

5. Thus, although the suit was contested, I have to state with regret that the parties appear to have competed with one another in not producing, proper evidence. In these circumstances it is not surprising that the trial Court was not impressed by the plea of tenancy raised by the appellants, and as the respondent had produced and proved the registered sate‑deed (Exh. 14) in his favour, it decreed his claim for eviction. It also decreed his clam for compensation. but as he had not cared to give any evidence whatever about the rate of compensation claimed, it assessed compensation at 6 % on the sale price of the said plot and, therefore, awarded compensation at Rs. 215 per month. However this amount was decreed both against the appellant and against the Custodian. Therefore, both the Custodian and the appellants filed Letters Parent Appeals against the judgment of the learned Judge. The Custodian's appeal is Letters Patent Appeal No. 33/1967, whilst the appeal of the appellants is Letters Patent Appeal No. 5/1967, and I may farther point out that this appeal had been filed by all the appellants, including those who had, as defendants, been declared ex parts as. they had not filed their written statements.

6. These appeals have been heard together because they have been preferred against the same judgment, but before I consider them I would first examine the effect of the respondent's death. He died on 13‑1‑67 during the pendency of these appeals. Accordingly the Custodian filed an application in Letters Patent Appeal No. 33/1967 for impleading the respondent's legal heirs which wag allowed. But the appellants in their appeal (L. P. A. 5/1966) did not take any step to implead the respondent's legal heirs until long after the expiry of the period of limitation; therefore, when they filed applications under Order XXII of the Civil Procedure Code, these were supported by an application under section 5 of the Limitation Act. The only ground on which the delay was sought to be condoned in this application was that the first appellant had been ill, but the applica tion neither explains the delay in filing it after first appellant had become, aware of the respondent's death, no: the failure of the other fifteen appellants to take any step in the matter. In these circumstances Mr. Abbasi submitted that this appeal had abated but as the respondent's legal heirs had been impleaded in the appeal filed by the Custodian Mr. Ishaque submitted that even the appeal of the appellants could not abate and as he relied on the judgments of the Supreme Court in Ghulam Abbas v. Hashim (1969 S C M R 257) and in Haq Nawaz v. Nur Bhat (1970 S C M R 554). I will now examine these judgments.

7. In Ghulam Abbas's case, the Supreme Court held that in the matter of bringing legal representative on record a substitution even in an appeal from an interlocutory application was a sufficient substitution for the purpose of the suit, so that no fresh application was necessary in the trial Court. According to Mr. Abbasi, this judgment was distinguishable because the substitution in the instant case had been made in a different appeal. It is true that their Lordships did not. in the case cited, have occasion to consider the effect of the substitution of a deceased by his legal representative in one of two appeals, against the same judgment. But this very question eras considered in Haq Nawaz's case, and the petitioner, who contended that the respondent's appeal had abated under Order XXII, C. P. C., had impleaded the legal representative of the deceased in the appeal filed by him. In rejecting the petitioner's submission about the abatement of the other appeal, Waheeduddin Ahmed, J., who pronounced the judgment of the Court observed at page 556. "Since the petitioner has himself brought the legal representatives of Nasir Khan on record in another proceeding this was quite sufficient for the purposes of the appeal as well and no fresh application to bring the legal representatives of the deceased party on the record of the suit was necessary" The instant case falls directly under the rule laid .down in those observations, accordingly I hold that in the event the happened Letters Patent Appeal No. 5/ 1967 has not abated.

8. I will now consider the Custodian's appeal as it turns on an .extremely short point. The learned Judge decreed the claim for compensation against the Custodian on the ground that he had, in violation of his express covenant in the sale‑deed (Exh. 14), not evicted the appellants from the said plot and thereby caused damage and loss to the respondent. This covenant is contained in clause 3 of the sale‑deed and it reads :‑ "

3. The transferor hereby covenants with the transferee that the occupants of the aforesaid plot or land or property whosoever includ ing those paying rents to the transferor will be evicted by the transferor if and whenever required by the transferee and all rights of occupation or tenancy continuing till the execution of these presents will ipso facto determine and cease and it is further agreed that the transferee will be at liberty to take such action as he may deem necessary for eviction against any occupant or occupants whereof with necessary aid and assistance of the Transferor. The Custodian had the power under section 25 of the said Act to evict the appellant by force if necessary but as soon as the said plot was sold, it ceased to be evacuee property. As it thus went out of the ambit of the said Act, the Custodian lost all jurisdiction over it, and further as he had sold it, the power to evict persons on it vested only in the respondent. Accordingly we invited Mr. Abbasi to refer us to any provision in any law which could have empowered the Custodian to evict the appellants. We gave learned counsel time for this purpose, but he was not able to refer us to any such provision, nor are we aware of any such provision, therefore 1 agree with Mr. S. A. Shaikh that ibis covenant was impossible of performance to the knowledge of the respondent. therefore, in my humble opinion, the learned Judge on the Original side erred in decreeing compensation against the Custodian. Even otherwise the burden of proving his claim ‑as on the respondent, and it was not enough for him to prove that there were trespassers on the said plot. As he claimed compensation at Rs. 500 per month, he had to prove that this would have been fair rent for the said plot at the relevant time, but as he did not even say so, and because of the total absence of evidence on the point, the learned Judge assessed compensa tion at 6% on the sale price of the said plot. With respect, if it had been impossible to give evidence about the rent for plots in the locality in which the said plot was situated. the learned Judge might have been justified in calculating compensation by reference to the purchase price of the said plot. But as even Mr. Abbasi admitted that evidence about the rate of rents in the locality could have been produced, in my humble opinion, the learned Judge erred in decreeing the claim for compensation without evidence. This means, that the appeal filed by the Custodian must be allowed, but in the view which I have taken, it further follows that the money decree against the appellants must also be set aside, and to this extent their appeal is allowed.

9. However the appellants resist their eviction on the ground that the sale of the said plot to the respondent was not valid. Thus for example Mr. Anwar Adil and Mr. Ishaque Ahmed stated that the price for the sale of the said plot was too low and proved collusion. But as rightly submitted by Mr. Abbasi, the price had reference to the fact that the said plot was sold without vacant possession, therefore, the argument is frivolous. In any case, I do not see how we can examine this objection as we are not exercising the constitutional jurisdiction of this Court.

10. Mr. Anwar Adil then submitted that the sale by the Custodian was illegal because it would defeat the objects of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Section 3 of this Act is relevant to the submission, because it empowers the Central Government to acquire all urban evacuee property and the learned counsel relied on it. However, as the notification by the Central Government, acquiring urban evacuee property in the exercise of its power under this section, came some months after the sale in the respondent's favour had been registered, Mr. Anwar Adil's submission was not that the sale was contrary to any provision in this act, but only that it was contrary to its object. And it was contrary to the object of this Act, because, according to the learned counsel, the object of this Act were to transfer all evacuee property to the Central Government for distribution amongst refugees. The argument is full of fallacies, but it is sufficient to point out here that the notification by ‑which the Central Government acquired urban evacuee property was issued on 21‑8‑1959 and it expressly exempted property "for the acquisition or sale of which sanction of the Central Government under the Pakistan (Administration of Evacuee Property) Act, 1957, or under any law for the time being in force for the administration of evacuee property in Pakistan, has been accorded before the date of this Notification" Accordingly the argument that the sale was against the objects of the Displaced Persons (Compensation and Rehabilitation) Act is totally misconceived, and, in any case, the question was within. the sole discretion of the custodian subject to the Central Government's approval, therefore, I would repeat that we do not have the jurisdiction to set aside a sale by the Custodian in this appeal. On the other hand, if the sale by the Custodian to the respondent was illegal, as submitted, the appellants could have filed a constitutional petition to challenge it, and although we repeatedly referred the learned counsel for the appellants to this aspect of the case, they could only refer us to other alleged infirmities in the sale by the Custodian to the respondent. As one of these alleged defects in the sale was sought to be supported by reference to a judgment of the Supreme Court in Ashfaq Ahmed v. Custodian, Evacuee Property (PLD1973SC134) it is necessary to examine the sale‑deed (Exh. 14) in the light of the authority cited.

11. The recital in the sale‑deed (Exh. 14) states that it is a conveyance between the Custodian and the respondent, and it explains how the said plot "is thus vested" in the Custodian. The recital then refers to three letters dated 28th March 1958, 7th March 1959 and 25th March 1959 by which the Government of Pakistan "has accorded its final approval under section 25(2) (s) (the said Act) to the sale and transfer" of the said plot to the respondent, who, it is pointed out, was also its allottee under the order of the Rehabilitation Commissioner. The recital is followed by the covenants and the schedule of the property sold, and the execution clause states : "In witness whereof the Custodian of Evacuee Property, South Zone. West Pakistan, Karachi signed, sealed and delivered by the Custodian of Evacuee Property. South Zone, Karachi present incumbent being Mr. Abdul Majid Khan, as authorised by the Custodian Mr. A. M. Jan by his order dated 30‑4‑1959. (Sd.) Abdul Majid Khan, Additional Custodian Transferor. I can not conceive of plainer language to shoe that the said plot was being sold by the Custodian in the exercise of its discretion under section 25(2)(s) of the said Act, but the judgment in Ashfaq Ahmed's case, on which the learned counsel for the appellants relied relates to a constitutional petition filed to challenge the order of the Custodian. As the learned counsel were conscious that the judgment was distinguishable on this ground, they submitted that their Lordships' observation on the construction of the said Act were relevant to the instant case. But the case cited related to a sale by an evacuee, which therefore fell under section 19 and 20 of the said, Act, whilst the sale deed (Exh. 14) in the instant case expressly state; that it is a sale under section 25(2) of the said Act. Accordingly we observed that the authority cited had no relevance to these appeals. Mr. Anwar Adil's reply was that even a sale by the Custodian under section 25(2)(s) of the said Act was subject to the restriction contained in sections 19 and X of the said Act. But this point did not arise for consideration in the case before their Lordships, nor was the learned counsel able to refer us to any judgment on the precise point which has thus arisen for determination.

12. Accordingly we have examined the relevant provisions of the said Act and although Mr. Anwar Adil finally based his case on section 20, it is necessary to refer to section 19 also. This section empowers the Central Government to prohibit transfers of property and the creation of any right or interest in property, but the section prescribes that even where the Central Government has made a declaration prohibiting transfers no such transfer . . . . . shall be made during the period in the area except with previous approval in writing of the Custodian". Now as this .section has to be read with section 20, I would observe here that the words .quoted obviously relate to a transfer by a third party, who is thus required to obtain the Custodian's approval, but they would not apply to a transfer by the Custodian himself. This is made very clear in section 20 ,which reads :‑ "20.‑(1) No creation or transfer of any right or interest in or encumbrance upon any property made in any manner whatsoever on or after the first day of March 1947, by or on behalf of an evacuee or by or on behalf of a person who has become an evacuee after the date of such creation or transfer, shall be effective so as to confer any right or remedy on any party thereto or on any person claiming under any such party, unless it is confirmed by the Custodian. (2) An application for confirmation of such creation of a right or encumbrance or transfer as aforesaid may be made to the Custodian within the prescribed period by any party thereto, or by any person claiming under or lawfully authorised by such party. (3) The Custodian shall hold a summary inquiry into the application in the prescribed manner, and‑ (a) shall reject the application if the creation or transfer‑ (i) was or is prohibited under any law for the time being in force, or (ii) was not or is not covered by a certificate from the prescribed Income‑tax authority to the effect that no objection exists to such creation or transfer ; (b) may reject the application if he is of opinion that the creation or transfer‑ (i) was not or has not been entered into in good faith or for adequate consideration, or (ii) ought for any other reason not to be confirmed. (4) If the application is not rejected under subsection (3), the Custodian may confirm the creation or transfer either unconditionally or subject to such terms and conditions as he thinks fit to impose. As all evacuee property vested in the Custodian under section 7 of the said Act with retrospective effect from 1st March 1947, the result was that all transfers by or on behalf of evacuees were automatically invalidated with retrospective effect from 1st March 1947, and further such transfers could only have been validated by the Custodian, because the title of the evacuee owner had vested in him with retrospective effect from 1st March 19.17, Therefore, the provisions for confirmation contained in section 20 was the .corollary of the fact that ownership of evacuee property had passed to the Custodian, but no such provision was necessary for transfer of evacuee property by the Custodian, because his title was not open to question in view of section 7 of the said Act. It is for this reason that the scope of ‑section 20 was expressly restricted to transfers by or on behalf of evacuees. But Mr. Anwar Adil submitted that the object of the said Act was to ‑preserve property for distribution amongst refugees, therefore transfers for inadequate consideration by evacuees had to be prevented, and section 20 contained the provisions for preventing transfers by evacuees for inadequate ..consideration. The submission has force, but what is much more important and which the learned counsel attempted to ignore, was that the Legislature 'had conferred unfettered discretion on the Custodian in the matter of transfers by evacuee. Therefore to extend the restrictions contained in section 20 to transfers by the Custodian would be inconsistent with the trust and confidence reposed by the Legislature in the Custodian. Accordingly I see nothing in section 20 to support the view that the unfettered discretion C vested in the Custodian under section 25(2)'x) was subject to the restrictions ‑contained in section

20. And I may add that neither of the learned counsel for the appellants referred us to any other provision in the said Act in support of the construction they sought to place upon section 25(2)(s).

13. Turning now to section 25, I may first point out that sections 19 and 20 are contained in Chapter IV of the said Act the heading of which is "Transfer and Restoration of Property", whilst section 25 falls under Chapter V, which defines the power and duties of the Custodians. This ,section, in so far as it is relevant reads :‑ "25.‑(l) The Custodian may take such measures as he considers necessary or expedient for the purposes of securing, administering, preserving and managing any evacuee property or property of which possession has been taken by him and may for any such purpose as aforesaid, do all acts and incur all expenses necessary or incidental thereto. (2) Without prejudice to the generality of the provisions contained in subsection (1), the Custodian may, (s) transfer any evacuee property, notwithstanding anything contained in any law or agreement to the contrary relating thereto : Provided that the Custodian shall not under this clause or the next succeeding clause transfer any immovable evacuee property or any business or undertaking which is evacuee property, except with the previous approval of the Central Government ; I see nothing in these provisions to support the view that a sale under clause (s) is subject to the provisions of section 20 of the said Act, the more o so in view of the extremely wide powers conferred on the Custodian under the section which in my humble opinion followed from the fact that he was the Custodian of all evacuee property.

14. Mr. Anwar Adil then submitted that the question of the validity of the sale‑deed (Exh. 14) should have been referred to the Custodian because the jurisdiction of the Court was barred under section 41 of the said Act. This submission does not have the merit of the consistency, because, accord ing to the learned counsel, this Court, had the jurisdiction to set aside the sale‑deed (Exh. 14) on the various grounds advanced by the{n before us. In other words, we had the jurisdiction to set aside the Custodian's decision but not to uphold it, and we were invited to reach this conclusion on the basis of section 41, which made the Custodian the sole judge of all disputes about evacuee property. To say the least, the submission is bizaare, especially as the Custodian has, at all stages of this litigation, from the written statement onwards, asserted that his sale of the said plot could not be questioned in view of section

41. As the learned counsel however claimed that their submissions were supported by this section I would refer to, it here. The section in so far as it is relevant, reads :‑ "41.‑(1) Save as expressly provided in this Act no civil or revenue Court or any other authority shall have jurisdiction‑ (a) to entertain or adjudicate upon any question arising in any suit, appeal, application or other proceedings as to whether any person is or is not evacuee or whether any property is or is not evacuee property or what right or interest, if any, an evacuee has in any such property ; (b) to question the legality of anything done under this Act by or at the instance of the Custodian, or (c) in respect of any matter which the Custodian is empowered by or under this Act to determine. (2) Whenever any question such as is referred to in clause (a) of subsection (1) arises in any Court, or before any other authority, the Court or authority shall state the question with relevant particulars and remit it to the Custodian for decision, and shall adjourn the proceedings in which the question arises until the decision of the Custodian is given, and the decision of the Custodian on the question stated shall be conclusive." This section is very clear. It does not bar the constitutional jurisdiction of this Court, but it bars its ordinary jurisdiction. This is because the Custodian is a tribunal of exclusive jurisdiction. Hence the direction in clause (b) of subsection (1) of the section that no civil Court shall have jurisdiction to question the legality of anything done by the Custodian. This means (sic) that the legality of sale of the said plot by the Custodian could no be questioned in the suit under appeal, and as the sale cannot be questioned, the result is that the said plot ceased to be evacuee from the date of the sale i.e. 4th May 1959. That was the view taken in Muhammad Husain v. Ahsan‑ud‑Din (P L D 1973 Lah. 345) by Iqbal, C. J., and I respectfully agree with it. The submission of the appellants to refer again the question of the status of the said plot to the Custodian has to be considered in this background. As the Custodian has already given his decision by sanctioning the sale of the. said plot, and as the appellants failed to challenge the sale and thus. allowed it to become final, their submission is really an attempt to challenge, so to say, through the back door a decision which they cannot challenge directly. In these circumstances, they cannot be permitted to escape the consequences of their own negligence by invoking subsection (2), the more so as the Custodian, has, from the institution of the suit up to the hearing of the appeals before us, repeatedly asserted that the sale of the said plot was a valid and binding sale in the exercise of his discretion under section 25(2)(x) of the said Act. Accordingly I respectfully agree with the view taken by the learned Judge in the suit under appeal.

15. The next submission of the learned counsel for the appellants was that in the events that had happened, the appellants had become tenants of the said plot, and I would first consider the submission with regard to the first appellant, Ghazi loam Nabi Pardesi and the 7th appellant, Abu. Bakar. Now the contention was that these appellants were the tenants of the Custodian when the said land was evacuee, and if this contention be correct, they would automatically be the tenants of the respondent after the sale of the said plot. But a tenancy has to be proved and cannot lightly be inferred, and if there had been any truth in the plea, these appellants would have produced evidence. Mr. Anwar Adil's reply was that the P appellant was too sick to give evidence, but Mr. Abbasi repudiated this allegation as false. However, even assuming that the appellant was sick, he could not possibly have proved the tenancy by mere o: al evidence. He was required to produce and prove the rent receipts issued to him by the Custodian for the payment of rent and so was the 7th appellant. Additionally, as the Custodian was a co‑defendant in the suit, the learned counsel for the appellants might have been able to prove their plea of tenancy by serving a notice on Mr. Saeed A. Shaikh, the Custodian's counsel under Order XI, C. P. C. calling upon Mr. Shaikh to inspect rent receipts relied upon by the appellants and to admit them. I may pause to point out here that none of the appellants took this simple and elementary step, therefore we can hold, on the evidence that none of the appellants had ever paid rent to the Custodian. But reverting to the case of the 7th appellant he said in evidence that he had come to Karachi at the end of 19.17 and "occupied about 400 square yards out of the plot in dispute with the permission of the previous landlord Shavil Das who later migrated." As he was not cross‑examined on this statement, Mr. Ishaque Ahmed invited us to hold that this appellant has proved his tenancy. But a tenancy is more than a mere permission by a landlord to .occupy his land. Assuming that Shavil Das had granted a tenancy to this appellant, what was the rent fixed? In Muhammad v. Dr. Zubeda (P L D 1957 Kar. 194) a Division Bench of this Court observed at page 201: "It is well established that payment of rent cannot create tenancy unless it is accompanied by circumstances to show that the owner or the person authorised to create tenancy did in fact intend to create tenancy to favour of the person claiming the same. Creation of lease would necessarily require determination of the period as well as the amount of rent." I respectfully agree with these observations, and when Mr. Abbasi referred us to this judgment. Mr. Ishaque Ahmed immediately changed his ground and submitted that the evacuee owner had granted a licence to this appellant. But if it was a licence, what was the period of the licence? I agree with Mr. Abbasi that by parity of reasoning the observations in Muhammad Siddik's case support his submission that such vague evidence is not sufficient to prove a licence. However there is a more fundamental objection to this plea of a licence. All evacuee property vested in the Custodian with retrospective effect from 1st March 1947, therefore, how could a licence granted by an evacuee be valid without the approval of the Custodian? It is true that the bar of section 20 applies in terms only to transfers, and a licence is not a transfer of an interest in immovable property. However a grant is dependent on the title of the grantor. As the grantor in the instant case had been divested of his title, how could he grant a licence? finally this appellant's claim rests only on his own word. He, however, admitted that although he had "a textile industry" on the said plot he had never paid any rent to the Custodian. I do not think that any honest person would behave in this manner, and I agree with Mr. Abbasi that such evidence is not sufficient to prove either a tenancy or a licence.

16. I now turn to the first appellant's case. Both he and the 7th appellant had obtained an order from the Deputy Settlement Commissioner in September 1960 (Exh. 45) for the transfer of the said plot to them at Rs. 100 per square yard. This order was cancelled on a suo moto review on 21‑12‑1960 (Exh. 24) and even the suo motu revision against this order was dismissed by the Settlement Commissioner on 28‑9‑63 (Exh. 23). Mr. Anwar Adil admitted that this order of 28‑8‑63 had become final, but he retied on a copy of an extract (Exh. 43) from the Custodian's record, according to which a business known as the Union Motor Workshop was shown as tenant on the said plot in the year of 1939‑

50. Mr. Abbasi objected to the admissibility of this document, but it is admissible because it was produced both by the 7th appellant and by the 3rd appellant without any objection. However the question of its evidentiary value is another matter. Mr. Anwer Adil did not even attempt to argue that this extract (Exh. 43) was presumed to be correct under the said Act. Apparently he relied only on the presumption under section 114 of the Evidence Act, but this presumption is easily rebuttable, yet the first appellant, whose case is based entirely on this extract, did not examine himself. According to Mr. Anwer Adil this was on account of this appellant's illness. But as I ‑said Mr. Abbasi challenged this explanation as false, and I have to observe here with regret that this is not the explanation given on this appellant's behalf in paragraph 8 of the memorandum of appeal before us. In these circumstances I agree with Mr. Abbasi's further submission that an adverse inference has to be drawn against this appellant for not giving evidence with the result that this extract (Exh 43) is of no evidentiary value.

17. Additionally the tenant shown in this extract (Exh. 43) is a business known as the Union Motor Workshop and not the 1st appellant and there is no evidence to connect the 1st appellant with the Union Motor Workshop except the statement of the 7th appellant in his evidence that the 1st appellant was a partner of the Union Motor Workshop. In the first place this statement is pure heresay. Secondly it is inconsistent with the 3rd appellant's evidence and also with the position shown in the three orders of the Settlement Department first allowing and then cancelling the transfer of the said plot to the 1st appellant. In any case as the 1st appellant has not pleaded in his written statement that he wa3 a partner or: the said plot of the Union Motor Workshop I am satisfied that the 7th appellant gave false evidence in order to support the 1st appellant. In all circumstances discussed both these appellants have not produced any evidence in support of their alleged plea of being tenant on the said plot.

18. As to the other appellants only the 3rd and the 15th appellants gave evidence, but although they claim that they were in occupation of the portion of the said plot, they admitted that they had never paid any rent to the Custodian. None of the other appellants gave evidence at all. Thus the extraordinary position in the appeal is that although the appellants claim tenancy rights, none of them produced a shred of evidence in support of this plea.

19. As the learned counsel for the appellants were aware of this difficulty, they advanced an astonishing submission. This was that the appellants had become the tenants of the said plot by virtue of what Mr. Anwer Adil described as permissive occupation. By this novel term, learned counsel only meant that the appellants had been, for many years, in physical occupation of the said plot, and this occupation, according to Mr. Anwer Adil, was sufficient to create tenancies. Now tenancies arise out of agreements, whether express or implied, between lessors and lessees. 1 his is so elementary that even Mr. Anwer Adil admitted it. But as tenancies can only be created by agreement, how can the claim of the appellants be accepted unless they prove firstly that the Custodian was aware of their occupation, and secondly that he had agreed to treat them as tenants by fixing rents according to Mr. Anwar Adil. It was not necessary for the Custodian to fix the rent, as the Custodian was aware of the occupation of the said plot by the appellants. The learned counsel sought to support this extraordinary submission by reference to a very old judgment reported in Devies v. Thomas (109 E R 616). As this judgment was not available to the learned counsel we have examined it and I find that it does not lend any support to the submission advanced, because the facts there were totally different from those in the instant case.

20. Mr. Anwer Adit's only other submission with regard to this plea of tenancy was that the appellants were in occupation of the said plot to the knowledge of the Custodian and that as the Custodian had not evicted them forcibly in the exercise of his power under section 12 of the said Act, the appellants had become the Custodian's tenants. Learned counsel was not clear whether the tenancies had been created by the operation of the said Act or by implied agreements with the appellants. This does not improve the case of the appellants, because, in the absence of some statutory provisions creating a tenancy, a person can become a tenant only with the consent of the landlord, and when we referred learned counsel to the ingredients of a tenancy as set out in section 105 of the Transfer of Property Act, 1882, learned counsel's only reply was that the object of the said Act was to settle the refugees by distributing evacuee property amongst them, and in this connection he also referred us to the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. There cannot be any doubt about the object of these two statements, but the submission advanced has to be considered in the light of the fact that none of the appellants, on the evidence on the record, have paid any rent whatsoever to the Custodian and in my humble opinion apart from the question whether such conduct was honest, it is clear that its consequence was to reduce the pool of evacuee property, therefore, learned counsel's reliance on the object of the said act is misconceived. Secondly, if the submission be correct that a person could acquire lease‑hold rights by trespassing on evacuee property, how could this right be restricted to refugees if the mere fact of successful trespass was, by itself, sufficient to create a tenancy. Thus the implications of the submission lead to absurdity; hence learned counsel's reliance on section 12 of the said Act, therefore I would now briefly consider the relevant provisions of the said Act.

21. Section 10 in so far as it is relevant, declares that every person in possession of any evacuee property shall be deemed to hold it on behalf of the Custodian, and it also imposes a mandatory obligation of such a person to "intimate to the Custodian in writing his willingness to surrender such property to the Custodian". Section 11 imposes a mandatory obligation on every person in possession of evacuee property to submit full information to the Custodian of the Evacuee Property in his possession, and such a person is further required to submit a detailed account of the rent, profit, income and other benefits derived by him from his possession of evacuee property. Finally section 12 empowers the Custodian to take possession of evacuee property from all persons in possession of such property even by using the force, if necessary. And because the appellants have not been evicted under this section, the submission was that they had become the Custodian's tenants. But, as 1 showed earlier, a tenancy is not to he proved lightly, and a plea of tenancy is not fit even to he examined, unless the alleged lessee can show that the lessor had permitted him to occupy the demised premises. But as there were many thousands, if not hundred of thousands of evacuee properties in the country, how was the Custodian to know who was in possession of these properties? Therefore, in my humble opinion, if the submission of learned counsel is correct, it would have led to whole sale fraud. and it was precisely for this reason that the Legislature imposed a mandatory obligation on all‑ persons in possession of evacuee property to inform the Custodian of their possession and of the other circumstances specified in section 11 of the said Act. But as the learned counsel for the appellants almost took pride in the fact that the appellants had not given. any information to the Custodian, it was impossible for the Custodian to have known of their possession As this means that the possession of the appellants was of a clandestine nature, it follows that they neither acquired any tenancy rights nor any assessments in the portions of the said plot in their occupation. In this view of the matter, that they may have constructed structures on the land on which they had trespassed would also not be material and cannot confer any rights on them.

22. The only other arguments advanced before us in the appeal were that the respondent's suit was bad for misjoinder of parties and that some of the appellants had denied being in possession of any part of the said plot. Mr. Anwer Adil. without giving up these points did not advance any argument in their support, but they are pressed by Mr. Ishaque Ahmed, who informed us that the 4th appellant, the 8th appellant. the 10th appellant, the 11th appellant and the 13th appellant had expressly denied in their written statement the allegation that they were in possession of any portion of the said plot. When we pointed out to the learned counsel that these appellants had not cared to give evidence his reply was that as the respondent had to prove his case, the suit was bad for misjoinder of parties because the respondent had failed to establish that these app.‑pants were in possession of any part of the said plot. Now whilst the onus of proving trespass was initially on the respondent, an adverse inference must, in the circumstances, be drawn against those appellants who did not give evidence. Secondly, except for the 4?h appellant, the written statements of the other appellants are, to say the least, ambiguous. Thus although they have denied being in possession of the said plot, the 10th, 11th and 13th appellants have expressly pleaded in the alternative in para. 16 of their joint written statement that they were the tenants of the Custodian. whilst the 8th appellant has pleaded the bar of the West Pakistan Urban Rent Restriction Ordinance in para. 13 of his written statement. Such contradictory pleadings do not make sense, and Mr. Abbasi submitted that these appellants had dishonestly denied their occupation of the said plot in order to raise a false objection about the misjoinder of parties. Whilst that appears to be so, it is not necessary‑ to examine Mr. Ishaque Ahmed's submission or Mr. Abbasi's criticism of these submissions because the appellants have had second thoughts in drafting their memorandum of appeal before us. All the appellants have filed a joint memorandum of appeal, and the common contention pleaded by all the appellants in this memorandum of appeal is that they are tenants of the said plot, therefore, I can only express my regret that Mr. Ishaque Ahmed advanced arguments contrary to the position expressly taken by the appellants before us.

23. We were disturbed by the repeal of the said Act during the pendency of these .appeals, therefore we had given the notice to the Advocate‑General to assist us on the effect of this repeal on the appeals filed by the Custodian. Having heard him we are satisfied that the appeal is competent, and we thank him for his assistance. 24, In the result, the appeal of the Custodian (Letters Patent Appeal No. 33/1967) is allowed without costs and the decree against the Custodian is set aside. As to the appeal filed by the appellants (Letters Patent Appeal No. 5/1967) we set aside the money decree passed against these appellants but subject to this modification the appeal is dismissed with proportionate costs. JAMALUDDIN AHMED, J.‑I agree. K. B. A. order accordingly.