1993 PLP 258 (MLD)

Petitioner was in occupation of the above plot. On 27‑2‑1978, respondent applied to Rent Controller Urban Area, Vehari for her eviction from the plot‑in‑question on the grounds of default in payment of rent to him and requirement of the plot for his self‑use. Upon being served, petitioner filed her defence. She objected to assumption of jurisdiction by the Rent Controller. It was stated that respondent had no cause of action; application for ejectment filed by him was not competent; it was frivolous; proper court‑fee had not been paid upon the application for ejectment; application for ejectment was time- barred. On merits, all the paras of the ejectment petition were controverted. Since jurisdiction of the Rent Controller was questioned and relationship of landlord and tenant denied, Rent Controller settled two following issues for determination on 27‑6‑1978. These are: ‑ (i) Whether the Court has no jurisdiction to try this application? OPR. (ii) Whether the relationship of landlord and tenant exists between the parties? OPD. On 19‑3‑1980, Rent Controller found above issues in favour of respondent and held that relationship of landlord and tenant existed between the parties, and, he had jurisdiction to try ejectment case. Consequent upon his above decision, further issues on merits were framed by him. These read as: ‑ (1) Whether the petitioner has no cause of action? OPR. (2) Whether the petition is frivolous and the respondent is entitled to special costs? If so, to what amount? OPR. (3) Whether the petition is barred by time? OPR. (4) Whether the respondent has committed ‑default in payment of rent? OPA. (5) Whether the house in question is required by the petitioner for his bona fide personal use? OPA. (6) Relief. After settlement of the above issues, parties produced further material substantiate their respective versions. Upon its review, Rent Controller found for respondent and directed ejectment of the petitioner from the plot‑in question on 3‑11‑1981, and, gave her free to surrender possession till 3-1-1982. Petitioner preferred an appeal against her eviction. Vide judgment of learned District Judge Vehari, dated 23‑5‑1983, ejectment was maintained and appeal dismissed on merits. Against this judgment of learned lower Appellate Court, a writ petition was filed in this Court. On the basis of decision in Ayub and another v. Masjid‑e‑Noman 1973 SCMR 604, writ petition was admitted to, hearing on 20‑6‑1983, and, status quo was ordered to be observed meanwhile. On behalf of the petitioner, principal point contended at the hearing was absence of jurisdiction in the Rent Controller to proceed with the ejectment case on the ground that section 30 of Displaced Persons (Compensation and Rehabilitation) Act, 1958 did not apply to a transferred evacuee building site, and, therefore, statutory relationship of landlord and tenant did not come into being between the parties. An ancillary point was also taken that notice under section 30 of the afore noted Act was not served upon the petitioner by the transferee of the plot, and, therefore, jurisdiction of Rent Controller was not attracted. None of the contentions has any substance in it. There is no dispute that the plot in question was evacuee‑owned, and, in the course of Settlement operations, was transferred to respondent by Settlement Department. PTD has since been issued to him. Original PTD is available on file of the rent‑case. After transfer of ownership rights in the plot, respondent gave a notice through a registered cover to the petitioner calling upon her to pay rent to him and also vacate the possession of the plot, on the ground of his bona fide personal requirement for its self‑use: Photo copy of notice is' Ext.Pl on the file. Postal employees gave evidence about despatch of registered envelope containing notice and denial of the petitioner to receive it. Petitioner as R.W.1 gave evidence that she was in possession of the plot eversince the year 1947 and had constructed a house on it. She denied ownership of the respondent and asserted that not only the plot, but the construction existing on it were owned by her. It was stated in her evidence that the construction had fallen down several times and resurrected by her again. Since petitioner had claimed ownership of the property, she denied tender or payment of rent by her to the respondent. Upon above facts and material brought on file, it is to be seen, whether tenancy relationship existed between the parties and the Rent Controller was possessed of jurisdiction to decide the ejectment dispute between the parties. In Shaukat Ali alias Shoka v. Sh. Abdul Hamid PLD 1969 Lahore 12, Mushtaq Hussain, J. as his Lordship then was, found that an open piece of land transferred under Displaced Persons (Compensation and Rehabilitation) Act, 1958, used by its occupant for tethering cattle and running a fuel wood business fell within the ambit of "rented land" and attracted provisions of Rent Ordinance. It'. was further held by his Lordship that character of the property was dependant by its actual user by the occupant . In Ayub and another v. Masjid‑e‑Noman 1973 SCMR 604, their Lordships of the Supreme Court took the view that section 30 of Act XXVIII of 1958 applied to an evacuee "house" or "shop" and not to a building site. In Mst. Zainab Bibi and 5 others v. Mst. Iqbal Begum and another PLD 1974 Lahore 350, Aftab Hussain, J. of this Court subscribed to the view that a person in occupation of the plot, building unauthorised construction and using it for his residence would be a tenant of the transferee of the evacuee plot and deemed to be in occupation of a "house" under Ordinance VI of 1959. This view was followed in Muhammad Iqbal v. Mehraj Din and another PLD 1976 Lahore 831 by observing that properties originally transferred as plots but later converted into pacca premises and being used as cattle shed and residential house respectively, their occupants shall be statutory tenants of the transferees thereof. In Noor Din and another v. Sardar Muhammad 1979 CLC 155, aforesaid view was again reiterated. In Muhammad Ibrahim v. Haji Ramzan 1983 CLC 2800 (Karachi), it was observed that transfer of open plot itself did not create tenancy in favour of its occupant, under section 30 of Act XXVIII of 1958. In Muhammad Moosa and 2 others v. Shabbir Ahmad and another 1984 CLC 3227, a Division Bench of the Karachi High Court upon reference to previous case‑law found that a person having raised construction on the plot transferred to landlord and using such a plot for commercial and residential purposes shall be deemed to be the statutory tenant of the transferee and Rent Ordinance applied to him. Similar views were expressed in Riaz‑ud‑Din v. Haji Muhammad Aslam, represented by Legal Heirs and 2 others PLD 1985 Karachi

411. In Mst. Shahar Bano v. Quadria and another 1986 SCMR 1727, their Lordships of Supreme Court observed that section 30 of Act XXVIII of 1958, which created statutory tenancy in favour of occupants of houses and shops transferred under Settlement Laws did not apply to an open plot. In Hashim v. (Mrs.) Hamida Begum and 6 others PLD 1987 Kar. 151 (Karachi), it was held that where the property transferred to a person cinder the provisions of Act XXVIII of 1958 was a building site, on which construction existed, which was in use as a commercial or a residential unit, its occupant shall be deemed to be a tenant of the transferee within the meaning of section 30 of Act XXVIII of 1958. In the above‑decided cases, a clear distinction was maintained between a mere open building site transferred under Settlement Laws and a building site on which construction was raised for its user, either as residential or commercial. In the latter kind of 'the cases, section 30 of Act XXVIII of 1958, which created statutory tenancy in favour of the occupant was held to apply, depending upon the user of the property, either as a "house" or "shop". In the case on hand, the petitioner claimed occupation of the open plot since the year 1947 and asserted her construction on it for residential purposes. Applying the standard laid down in the above cases, construction on the plot shall be deemed to be an accretion to it and found a "house" within the contemplation of section 30 of the afore noted Act, which created statutory tenancy in favour of the occupant holding under the transferee of the plot. Looked at the case from this point of view, holding the petitioner a statutory tenant of respondent was not open to any serious legal exception. Though the respondent stated in his cross‑examination that the petitioner occupied the plot. After its transfer in his favour, yet the petitioner herself consistently maintained her possession since 1947. She did not claim to be an unauthorised occupant o the property. Therefore, upon existing records, relationship of landlord and A tenant between respondent and the‑petitioner was clearly established. Further, there was enough evidence to show that the respondent gave notice of transfer of plot in his favour by calling upon the petitioner to pay him rent and also to vacate the possession, on account of his personal requirement of the plot by him. Act XXVIII of 1958 has since repealed. With the repeal of Evacuee Laws, requirement of statutory notice was clearly dispensed with. Decision of the Supreme Court in Ch. Muhammad Ramzan v. Bashir Ahmad PLD 1981 SC 340 supported this view too. Having regard to the aforesaid, impugned judgments were neither without jurisdiction nor without lawful authority. Petitioner has no real defence to make against her eviction from the property transferred to the respondent. Writ petition, therefore, failed. Accordingly, it is dismissed but without any order as to its costs in this Court. Status‑quo order is recalled. Records be returned. AA./J‑37/L Petition dismissed.