P L D 1957 (W (PLP)

CONSTANTINE, J.

The pleadings have been summarised by our learned brother Muhammad Bakhsh, J., from whose judgment this appeal lies, as follows :- "This is a suit for ejectment and mesne profits, valued at Rs. 564-12-0. The plaintiff is the owner of a plot of land bearing survey No. 15, sheet B. R. 3, in the Bunder Road quarter of Karachi City, and of the building thereon known as Naraindas building. The ground floor of this building had been let out by the plaintiff's predecessor-in- title to one Mulchand Jethanand. The plaintiff purchased this building on 14th January 1948. It is alleged that on 19th January 19,48, the defendant, without the consent of the plaintiff, took possession of the said ground-floor from Mulchand Jethanand and has continued to occupy the same since then. It is further alleged that, under the terms of the tenancy of the said Mulchand Jethanand, this lease could not be assigned or sub-let by him. The plaintiff, therefore, deems the defendant to be a trespasser. The defendant was called upon to vacate the premises, but lie did not do so. The plaintiff claims Rs. 564-12-0 as mesne profits from 19th January 1948 upto the date of suit, at the rate of Rs. 44 per month: in the alternative, he claims this amount as fair rent. Although the plaintiff clearly deems the defendant to be a trespasser, still, without prejudice to his case, he served a notice on the defendant on 27th December 1948, determining the tenancy, if any, from 1st February 1949, and for that purpose he also obtained the requisite certificate under section 9 of the Sind Rent Restriction Act from the Rent Controller. He has now filed this suit for ejectment of the defendant and vacant possession of the premises in question, as also the mesne profits as alleged above, and costs of the suit. The defendant admits being in occupation as tenant of the ground-floor of the said building, having taken over the entire running concern of Mulchand Jethanand, who was carrying on his business in these premises formerly. Immediately after purchasing the said concern from Mulchand Jethanand, the defendant applied to the Deputy Rehabilita tion Officer for allotment of the premises, and he secured the said Officer's permission on 23rd April 1948. In these circumstances, the defendant alleges, the question of sub letting or assigning the lease does not arise. He further questions the right of the plaintiff to call upon the defendant to vacate the premises. He was always ready and willing to pay the fair rent of the premises, and actually sent the rent by cheques to the plaintiff, who refused to accept the same. The defendant being in possession as an authorised tenant under the orders of the D. R. O,, no question of trespass or mesne profits arises. The certificate under section 9 of the Rent Restriction Act was obtained ex parte by misrepresentation, and the same has been cancelled. The defendant further alleges that the suit is not main tainable, and this Court has no jurisdiction in the matter. He accordingly prays for the dismissal of the suit, with costs." He tried the following question as a preliminary issue:- "Has the Court jurisdiction to try the suit? and came to a finding that he had no jurisdiction to try the suit and, therefore, dismissed it. The order of the Deputy Rehabilitation Officer is dated 23rd April 1948 and is as follows: "To, Mrs. Razia Ghulam Ali, Senior Partner, The Karachi Hardware Mart, Market Road, Boulton Market, Karachi. Ref.-Application dated 28th February 1948. You may continue on the premises which you are occu pying before. (Sd.) A. A. Jafri. For Deputy Rehabilitation Officer, Karachi." The learned judge after discussing the various Ordinances which had been issued from time to time, stated. "The premises in suit were allotted to the defendant on 23rd April 1948 and therefore it will clearly come within the mischief of the provisions of the Ordinance in question. Section 48 further relates to the same position. The learned judge also held that the jurisdiction of the Court had been expressly barred by section 34 of Ordinance XV of 1949. Mr. Riaz Ahmad complained that the learned judge has given a finding that the order of the Deputy Rehabilitation Officer was a valid allotment. Mr. Sohail contends that there is no such finding. We think that Mr. Riaz Ahmad's con tention is correct. The next question is whether under section 34 of Ordi nance XV of 1949 the learned judge had jurisdiction to determine this question, and in our opinion the jurisdiction was lacking. Section 34 provides that if a question arises in any suit whether any property is or is not evacuee property or what right or interest if any an evacuee has in any such property, the Court 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. The section also provides that the Court shall not have jurisdiction in respect of any matter which the Custodian is empowered by or under the Ordinance to determine. "The word "such property" in clause (a) of subsection 1 of section 34 refer back to evacuee property. Section 6 of that Ordinance provides that all evacuee property shall vest and shall be deemed always to have vested in the custodian with effect from the first day of March 1947. The word ing of clause (a) of subsection (1) of section 34 males it clear that for the purposes of this section one has to regard the evacuee as capable of having an interest in the evacuee property and it seems to follow that for this purpose one has to disregard the fact that his property has vested in the Custodian. It is common ground that Mulchand is an evacuee and that he was a tenant of the previous owner and became a tenant of plaintiff. One of the rights of a tenant is the right of possession. An allotment order, if valid, gives the right to possession to another person, and pro Canto the rights of the evacuee in the evacuee property are diminished. Therefore, it appears that to make a finding that an allotment order is or is not valid is to decide a question as to the right of an evacuee in the property. It is true that the right to possession of the evacuee is liable to be defeated at any moment by an allotment order, but until such allotment order is made, the evacuee has that right; or, to put it more accurately, as explained above, that right though vested in the Custodian must be considered as belonging to the evacuee for the purposes of section

34. The learned judge stated that his jurisdiction to entertain the suit was barred by section

34. He has not stated in what manner section 34 operated so as to deny him "juris diction to go into this matter and grant any relief to the plaintiff". So far as subsection (2) and clause ka) of subsection (1) of section 34 go, the bar to jurisdiction refers to the entertaining or adjudication of the question and the Court .s required to refer the question for decision to the Custodian. Mr. Sohail claimed that the plaintiff should have app-lied to the Custodian under section 18 of Ordinance XV of 1949. Subsection (1) of section 18 reads as follows :- "

18. Claims by interested persons.-(1) Any person claiming any right or interest in any property treated by the Custodian or a Rehabilitation Authority as evacuee pro perty may prefer a claim to the Custodian on the ground that !u) the property is not evacuee property, or (b) his interest in the property has not been affected by the pro visions of this Ordinance." It was, however, the defendant who set up as a defence the order of the Deputy Rehabilitation Officer, and the plaintiff contends that the officer was not authorised to issue the order and that he was not bound by it (vide issue No. 3). The plaintiff argues that the order was a nullity and did not amount to treatment as evacuee property. We think, there fore, that the plaintiff could not have applied under section 18, since such an application would have been inconsistent with his contention. We are, therefore, of the view that the trial Court should not have come to any finding upon the validity or invalidity of the order of the Deputy Rehabilitation Officer, but should have referred this question under section 34 to the) Custodian for his decision, and should not have dismissed the' suit. The appeal is therefore, allowed, and the case is remanded to the trial Court for further disposal. We wish it to be understood that we are not fettering the discretion of the trial Court in its mode of disposing of the case upon other issues. The costs of this appeal should be costs in the cause. A. H. Appeal accepted.