1980 PLP 835 (CLC)

This application in revision under section 115, C. P. C. by defendants n the suit raises question of jurisdiction of civil Court for cognizance f the suit decreed in favour of the plaintiff-respondent by learned trial Judge and appeal against his Judgment was dismissed by learned Addi tional District Judge.

2. The basic facts of the case are no longer much controversial be tween the parties. The dispute relates to Plot bearing No. 4/SF Sarjan Factory Area Silanwali, Tehsil and District Sargodha which was formerly evacuee property and was on 23rd of October 1969 purchased by Bashir Ahmad respondent (plaintiff) in public auction held by Settlement Autho rities. Permanent transfer deed (P 2) was issued infavour of the respon dent on 23rd of November 1969. The petitioners were admittedly in occupation of the plot long before its transfer in favour of the respondent and had raised constructions (katcha-pacca) comprising a single room enclosed by a compound wall. The petitioners were on 4th of April, 1970 served with notice through registered post (P3-5) by the respondent informing them of transfer of the plot in favour of the respondent and requiring them to hand over possession of the plot removing the structures thereon and also pay rent at the rate of Rs. 10 p.m. Subsequently, the respondent filed this suit for decree for possession of the plot. It was also stated in the plaint that the petitioners were tenants under the Settlement Department before transfer of the plot in favour of the respondent. The petitioners contested the suit denying ownership of the respondent in the property in question. They contended that they had built rooms at the site at a substantial cost. They had also applied to the Settlement Autho rities for transfer of the plot in their favour. Besides, a number of legal objections including objection to competency of civil Court for of the suit were also raised in the written statemeat, The peti tioners maintained that the proceedings should have been instituted be fore Rent Controller who exercised exclusive jurisdiction in such matters. Learned Civil Judge before whom trial was held examined Bashir Ahmad respondent and Wali Muhammad petitioner (1) under Order ?C. C. P C. Bashir Ahmad stated that the petitioners were engaged in the business of wood. The plot was used for dumping wood, green fodder, and chaff, etc. The constructions raised by the petitioner at the site were in dila pidated condition. The roof of the room at the site had fallen down for the last four years. Wali Muhammad petitioner (1) had in his state ment admitted receipt of registered notice as well as non-payment of rent. These statements were followed upon by necessary issue arising from the pleadings in the case. Three witnesses were examined on the side of the respondent who also appeared as his own witness. Two witnesses were called by the petitioner in rebuttal of whom Wali Muhammad petitioner (1) also entered the witness box. All issues in the case were answered in favour of the respondent. The issue of jurisdiction with which alone we are concerned was disposed of summarily by learned Civil Judge on an erroneous assumption that the plot in question was not included in urban area. During hearing of appeal before learned Additional District Judge findings of trial Court on 3 issues concerning competency of the suit, jurisdiction and ownership of the respondent in the property only were challenged, The question of jurisdiction was discussed by learned Additional District Judge in proper details. He held that the property was situated within urban area. 1t was transferred in favour of the res pondent by Settlement authorities as a vacant site (plot). The petitioners had raised constructions without permission of Settlement Department or Municipal Authorities or the respondent. These unauthorized construc tions would not change the character of property transferred as plot in favour of the respondent. Suit for possession before civil Court was competent as learned Rent Controller could exercise jurisdiction only with regard to buildings. Learned Additional District Judge further agreed with the trial Court that the petitioner was undoubtedly owner of the plot in question through transfer in his favour by the Settlement Authorities.

3. The point of jurisdiction only was pressed before me by learned counsel for the petitioner conceding that the petitioners were gravely misdirected in denying ownership of the respondent in the plot which fact was established beyond controversy by permanent transfer deed (P. 2) issued in his favour by competent autborities. Learned counsel for the petitioners contends that the property was no doubt described as plot in the auction list published in the year 1969 (P. 9) and was also mentioned as such in the transfer deed (P. 2) issued in the name of the respondent. However, it is sufficiently clear from the aver ments in the plaint itself (para 2) as well as statement of the respondent which he had made as his own witness (P W 4) that constructions were raised by the petitioners before the plot was transferred in his favour, Wali Muhammad petitioner (1) had also said that the constructions which they had raised at the site were being used and utilized by them as go down. This statement accords with the statement of the respondent under Order X, C. P. C. The constructions which existed at the site before transfer in favour of the respondent even though unauthorised formed part and parcel of the property which was transferred as plot in favour of the respondent. The contention was pressed further with the argument that the property in question was a "non-residential building" or "rented land " within the meaning of Punjab Urban Rent Restriction Ordinance VI of 1959. The petitioners could not be evicted from the property save under order of learned Rent Controller. Jurisdiction of civil Court for the suit was clearly barred under subsection (1) of section 13 of the Ordinance. Reliance was placed on the judgment in Mst. Zainab Bibi and 5 others v. Mst. Iqbal Begum and another (P L D 1974 Lah. 350) and Muhammad Iqbal v. Mehraj Din and another (2). The contention is plainly untenable on facts as well as in law. Jurisdiction of learned Rent Controller under the Ordinance is contingent on existence of relationship of landlord and tenant between the parties and the property subject matter of the proceedings should be a building residential or not residential, rented land or scheduled building situated in an urban area. Admittedly, the premises were not used by the peti tioners for the purpose of residence. Non-residential building is defined in section 2(d) of the Ordinance as a building used solely for the pur poses of business or trade. Rented land has been defined as any land let separately for the purpose of being used principally for business or trade. Use of a building or property for dumping articles of trade where no transactions, dealings, or actual commercial activities are held cannot be treated as building or rented land used solely or principally for the purposes of business or trade. To keep stock of the articles of fraud would be merely incidental to or a step in aid of purposes of business or trade and could not in itself be treated as business or trade. The precedent cases referred to above do not in any way advance the contention of learned counsel for the petitioner. In the case of Mst. Zainab Bibi it was held after a detailed discussion of the provisions bearing on the subject that if constructions were in existence on the plot transferred as evacuee building site it would be presumed that the constructions were of a charac ter which would make the site a vacant building site and would be deemed to have been transferred to the transferee. Unauthorized constructions would be in the nature of accretion to and would form part of the evacuee property. The plot shall be taken to have been transferred along with the constructions thereon although it may be a building site under the Settlement Act. Respectfully, I find myself to complete agreement with the view held in this judgment which was followed with approval in the case of Muhammad lqbal. In both these cases it was found as a fact that the premises subject matter of proceedings before the Collector were used by occupants as residential houses or shops etc. Therefore, it was held that the learned Rent Controller was competent to entertain the proceedings and order ejectment of occupants although the properties were transferred as mere plots. The further essential constituent of jurisdiction of Rent Controller for this case was also not satisfied. Tenancy is brought about by agreement express or implied or by operation of law. There was no agreement between the parties. The petitioners could not claim that they had become tenants under the respondent by virtue of the provisions in section 30 of the Displaced Persons (Compensation and Rehabilitation) Act of 1958. Rights of tenancy and various protections to the statutory tenants under the said section are available only to the occupants of evacuee houses or shops, etc. who had come into possession in pursuance of order passed on or before the 20th of December, 1958 by the Rehabilitation Authorities or under any order of Central Government, Reference in this behalf be made to the judgment of Supreme Court in Ayyub v. Masjid-e-Noman (1973 S C M R 604). In that case a building site was transferred by the Settlement Authorities in the name of the mosque for the purposes of establishing/extending the mosque. The appellants before the Supreme Court were in unauthorized occupation of the site. Suit was filed on behalf of the mosque for possession and mesne profits which were contested by the occupants inter alia on the ground that they were in possession for the last about 20 years and had become statutory tenants under section 30 referred to above implying that learned Rent Controller alone. was competent to order their ejectment. The suit was decreed by the trial Court and the first and second appeals preferred by the occupants were dismissed. The contention that the protections under section 30 were available to the appellants (occupants) was turned down with the view that the fact that they had subsequently put up some structure on the land for their business after they had come to occupy it did not make it an evacuee business premises. In order to be a shop it must be so treated by the Settlement authorities and transferred as such. Section 30 applies only to the evacuee houses or shops, etc. This judgment was distinguished by a learned single Judge of this Court (as his Lordship then was) in the case of Muhammad Iqhal. With respect, the distinction is confined only to the comparison of facts of the two cases. In the case of Muhammad Iqbal it was held on the basis of evidence that the structures at the site which could not be treated as shop and house by the Settlement Department had been converted into pacca structure and were being used as shop and house.

4. In the result, I endorse the findings of learned Additional District Judge that civil Court was competent for cognizance of the suit and dismiss this petition as without force. K. M' A Petition dismissed.