1982 PLP 1071 (CLC)

5. This suit filed by the applicant was contested by the respondents who filed their written statement denying the allegations made by him. On the pleadings of the .parties the following issues were framed (1) Whether the plaintiff was in occupation of the premises before 20‑12‑1958 and if so to what. effect? (2) Whether the plaintiff is entitled to protection under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958? (3) Whether the plaintiff had been in occupation of the premises as licensee on behalf of Abdul Aziz?

6. In the meantime the defendant No. 1, Qazi Muhammad Mian expired and his legal representatives were brought on the record. 7. (i) The learned Civil Judge after recording evidence, by judgment and decree passed on 13‑11‑1974 answered the 4ssues Nos. 1 and 2 in the negative and Issue No. 3, was answered in the affirmative. Accordingly the suit was dismissed with costs. (ii) Against the aforesaid judgment the applicant filed Civil Appeal No. 200 of 1974 which was heard by the learned III Additional District Judge, Karachi, who by judgment and decree passed on 26‑4‑1975 dismissed the said appeal.

8. The present revision petition under section 115, C. P. C. has been filed by the applicant in order to assail the judgments given by the two Courts against him.

9. I have heard the learned counsel for the parties The only point raised by the learned counsel in support of the petition was that by virtue of section 30 of the D. P. Act of 1958 the applicant being in possession of the property since before 1958 became a statutory tenant whose possession was protected and therefore he was not bound by any order passed against Abdul Aziz. It may be mentioned here that the learned counsel for the applicant admitted that Abdul Aziz against whom the ejectment order was passed iul'4 R. C. No. 134 of 1964 is the brother of the present applicant.

10. The learned counsel for applicant in support of his arguments referred to section 2(6) of the D. P. Act of 1958 wherein possession is defined and then proceeded to rely upon. Notification No. F. 1(27)/59‑SI, dated 13‑10‑1969 whereby the Central Government in exercise of its powers conferred by second proviso to clause (6) of section 2 of the D. P. Act of 195 directed that :‑ ". . . a non‑claimant displaced person or a local who has not obtained possession of a house or a shop in pursuance of an order passed by a competent authority on or before the twentieth day of December, 1958, shall, for the purpose of the aforesaid Act, be deemed to be in possession thereof, if he has been in undisputed occupation of the house or the shop since before the twenty‑first day of December 1958, and no other person is otherwise entitled to the transfer of such house or shop in pursuance of a final order passed by a competent authority before that day Provided that the rent and other public dues in respect of such house or shop have been paid by the occupant from the date of his occupation and, if he is a claimant, such amount is adjusted against his claim." Relying upon the aforementioned notification the learned counsel for the applicant argued that since the applicant is in possession of the premises in question since before'21‑12‑1958 he shall be deemed to be in possession within the meaning of the Act and therefore his possession would tie protected under section 30 of the said Act. The case of Chiragh Bib! v. Mst. Rahim Bibi (P L D 1964 Lab. 136) was cited in support of his contention. The observations made in the above‑cited case however do clot help the applicant in this case. It has been found as a fact by both the Courts below that Abdul Aziz was recorded tenant of the Custodian and in possession of the property in suit and that the possession of the applicant at the most was e through him. The learned Civil Judge pointed out that the notice) Exh. D. W. 21 sent to Abdul Aziz on the address of the disputed premises was duly served upon him and that the said Abdul Aziz while acknowledging the receipt of the said notice Exh. 21 in reply sent through his counsel on 10‑9‑1963 vide Exh. 22 admitted that he was in occupation of the disputed house and that he was prepared to pay the rent at the rate of Rs. 20.25 per month. The learned First Appellate Court also came to the same conclusion and on the basis of evidence produced by the parties held as follows :‑ "All these factors when combined together prove that Abdul Aziz was the recorded tenant‑ of the disputed house and the possession of the appel lant with his brother was that of a licensee and nothing beyond it." Thus in view of the concurrent findings of facts given by the two Courts below that Suleman, the applicant, was not in possession of the premises and that be was merely a licensee he could not be deemed to be a person in possession of the disputed house within the meaning of section 2 of the D. P. Act 1958. It may also be pointed out here that the Notification dated 13‑10‑1959 the effect of extending the meaning of word `possession' for the purposes of making certain categories of persons entitled to apply for transfer of a house or a shop even though they had not obtained possession in pursuance of orders passed by a competent authority on or before 21‑12‑1958, provided certain conditions were fulfilled. The said notification was not intended to create any tenancy rights or giving protection to a person who was merely a licensee of in unauthorised occupation of the premises. Reference may be made to the .v case of Muhammad Tufail v. Barkat Ali (P L D 1967 Kar. 151) where the learned Single Judge of this Court held as follows :‑ "The first contention that the mere occupation of a premises makes the occupant a tenant of the transferee of the premises under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, is not correct, because the tenancy that it contemplated by the section is on the terms and conditions of the tenancy of the previous occupa tion. If, for instance, the previous occupant was a trespasser, he does not become a tenant merely because the premises is transferred by the Settlement Department." Similar question arose for consideration in Agha Muhammad v. Haji Mould Dad (P L D 1971Quetta 10) wherein the learned Judge (Mr. Justice Dorab Patel as he then was) after citing with approval the case of Muhammad Tufad v. Barkat Ali, held that the correctness of the proposition laid down in the said case to the effect that the benefit of section 30 was not available to trespassers could not be assailed. Reference may also be made to the case of Syed Masood Hussain v. Muhammad Saeed Khan (P L D 1971Quetta 10), where repelling the claim made by the relations of the tenant living with him, that they were also entitled to the benefit of section 30 held : "The allottee of the bungalow was Khan Muhammad Syed Khan, respon dent No.

1. He therefore became the statutory tenant of the petitioners. Respondents Nos. 2 to 4 admittedly are his relatives. They were living there in the premises not in their own right but on account of respon dent No. 1 to the Rehabilitation Authority and the other respondents made payments only to respondent No.

1. Again, after the transfer of the premises in favour of the petitioner, respondent No. 1 paid or offered the rent to the petitioners. The other respondents, according to their own showing, have been paying their share to respondent No. 1 only. Under the circumstances, no notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act was necessary to these respondents." I am in respectful agreement with the observations made in the above cases and accordingly find that the applicant is not a tenant of the premises in question within the meaning of section 30 of the Displaced Persons Act of 1958 and that in fact he was not in possession of the premises before 20‑12‑1958 and in any case not in his own right. The concurrent findings of facts given by the two Courts below based as they are on cogent reasons, to the effect that Abdul Aziz was the occupant tenant and that the petitioner For the reasons stated above I do not find any substance in this Revision Application. The findings of facts arrived at by the two Courts below do not suffer from any illegality, impropriety or error in exercise of jurisdiction within the meaning of section 115, C. P. C. The Revision Application is accordingly dismissed with costs throughout. K, M. A. Application dismissed.