1981 PLP 105 (SCMR)

KARAM ELAHEE CHAUHAN, J.--The dispute in this case is about a room in property bearing No. P/134, Ward No. 7 Montgomery Bazar, Lyallpur (Faisalabad). Muzaffar Ali (respondent) (landlord) claiming to be a transferee of this room filed an application on 7-3-1973 for eviction of Muhammad Yousaf, the present petitioner. on the ground of non-payment of rent in spite of his having earlier been served with a proper notice on the subject to which the petitioner paid no heed. The application was accepted by the learned Rent Controller vide his order dated 30-8-1978, whereby he directed eviction of the petitioner. The petitioner-tenant filed an appeal but without any success as the same was dismissed by the learned Additional District Judge on 6-12-1978. The petitioner filed a second appeal being S. A. O. 48/79 which also brought no fruit and was dismissed by the High Court on 16-2-1980.

2. The petitioner has come up in a petition for leave to appeal against the same to this Court.

3. To start it may be mentioned that the learned counsel has not challenged the finding of default in the payment of rent on the part of his client and the main point argued before us was that Muzaffar Ali respondent landlord was not transferee of the aforesaid room from the Settlement and Rehabilitation Department, because, according to him the P. T. O. which was issued to Muzaffar Ali mentioned in general property bearing No. P-134, Ward No. 7, Montogomery Bazar, Faisalabad, without any further details, with the result that if the respondent wanted to claim the room in dispute as being part of the property transferred to him he should have got the same de marcated from the settlement department and that the learned Rent Controller had in the circumstances no jurisdiction to find out as to which property or the portion of the property was transferred to Muzaffar Ali. The contention has no merit. From Exh. P. W. 4/4 which is a certified copy of the order of the Settlement Commissioner with powers of Chief Settlement Commissioner dated 26-6-1965--(page 76 of the paper book) and which is to be read with the order of the Settlement and Rehabilitation Commissioner dated 20-6-1961 -page 77 of the paper book-it is crystal clear that the room in dispute which admittedly is situated behind the shop of the petitioner was transferred to Muzaffar Ali, respondent herein. As a matter of fact this was the finding which was recorded by the learned Additional District Judge in this very case when in the earlier round of litigation he held by means of his order dated 22-1-1978, that the room in dispute stood duly transferred to Muzaffar Ali, That order was passed against the order dated 4-7-1977 of the learned Rent Controller whereby he had initially dismissed the ejectment application on the ground of non-establishment of the entitlement of Muzaffar Ali to this room. As mentioned earlier the learned Additional District Judge reversed that order after giving the finding hereinbefore mentioned whereafter the case was remanded and passed through the stages mentioned above. Learned counsel could find no fault with the order of the learned Additional District Judge dated 22-1-1978 which was still operative in the field, except that he raised the same objection which has been mentioned earlier, that in the court of proceedings for his eviction this finding could not have been given. We find no merit in this plea, because the. learned Rent Controller and as a matte of fact the learned Additional District Judge were not making any damarcation of property but were simply giving effect to the orders of the learned Settlement Commissioner and the learned Chief Settlement Commissioner wherein the room behind the shop of the petitioner had specifically bee transferred to Muzaffar Ali. Learned counsel submitted the learned Rent Controller and other Courts should have confined themselves merely to the P. T. O. where the description of the portion transferred was no doubt quite vague but despite that they should not have referred to the relevant transfer order. The argument in the peculiar circumstance of this case has to be mentioned for just to be rejected as it has no substance.

4. Learned counsel argued that on the record there was two reports of the Local Commissioners submitted before the learned Rent Controller about the location of this room. These reports cannot change the orders of the Settlement Authorities whereby the room in dispute has specifically been transferred to Muzaffar Ali respondent. It was not disputed before us that the room in dispute had existed and still exists behind the shop of the petitioner and if this was so then it is the same room which was transferred to the respondent. Learned counsel submitted that how could the settlement authorities have transferred the said room which from the point of view of the petitioner formed part of the shop transferred to him. If the settlement authorities considered the aforesaid room as separate from the shop and transferred the same to Muzaffar Ali, their orders could not be taken exception to before the learned Rent Controller. It may be mentioned that those transfer orders by the settlement authorities were passed in the presence of the petitioner and were binding on him and he cannot be allowed to reclaim from the learned Rent Controller in this circuitous way, the same room which he lost before the settlement authorities.

5. The last point argued was that the possession of the petitioner over the aforesaid room was hostile inasmuch as he had not paid any rent to Muzaffer Ali and as such was not his tenant. This plea implies and concedes that no rent has been paid by the petitioner and would straightway warrant his eviction. However, the question of adverse possession in a case of this type does not arise, because, it was a statutory tenancy created under the statute and the cause for any action in that respect was to arise only after issuance of the requisite statutory notice which in this case was issued in November, 1973, and the ejectment application was filed thereafter on 7-3-1974, and as such the same could not be +defeated by any plea of adverse possession because prior to the issuance of the requisite notice the possession of the petitioner was under the settlement and Rehabilitation Department and not adverse to anybody.

6. The result is that this petition has no merit and is dismissed. Petition dismissed.