2003 PLP 1268 (CLC)

3. The learned Rent Controller framed an issue regarding of relationship of landlord and tenant between the parties recording evidence of the parties held that the house was transferred respondent No.2, after the repeal of the Displaced (Compensation and Rehabilitation) Act, 1958 hence the foundation statutory tenancy did not exist after the repeal of resultantly, vide order dated 23-4-1991 issue was decided and the rent petition was dismissed.

4. On appeal by respondent No.2, the aforesaid order and finding of the Rent Controller was reversed by the learned District Judge, D.G. Khan vide judgment dated 6-10-1991. Rent petition was accordingly accepted and the petitioners were allowed three months time to hand over vacant possession of the house to respondent No.2.

5. The aforesaid judgment of the learned Appellate Court is called in question in this Constitutional petition as void, without lawful authority and of no legal effect and is prayed to be declared as such.

6. Writ petition is opposed by the learned counsel for respondent No.2. Arguments heard, petition and its annexures perused.

7. In support of the Constitutional petition learned counsel for the petitioners had urged that the learned District Judge, D.G. Khan did not see the case in its true perspective and had altogether ignored the fact that P.T.D. in respect of the said house already stood issued in favour of Salah-ud-Din (predecessor in-interest of the writ petitioners) who had transferred the house through registered sale-deed in favour of the petitioners in 1978; that the said P.T.D. was admittedly not cancelled hence the said house would not have been subsequently transferred by the Department; and that controversy between the parties regarding title could not have been resolved in rent proceedings.

8. Argument is misconceived inasmuch as transfer order Annexure E-4 issued by Deputy Settlement Commissioner in favour of Salah-ud-Din from whom the petitioners derived title, is in respect of House No.120 Block No. 14, D.G. Khan whereas the disputed property is a separate property bearing House No.120/A. There was, therefore, no dispute of title which was to be resolved by the Rent Controller.

9. It was next submitted by the petitioner's counsel that the Appellate Court not only misconstrued the relevant law but had also misinterpreted case-law and the impugned judgment is based on misinterpretation of law as well as non-reading of evidence.

10. A perusal of the impugned order reveals that the learned Appellate Court relying on Habib Ullah's case reported in 1981 CLC 109 held that even after the repeal of Evacuee Laws the occupants of evacuee property would be deemed as tenants of the transferee as in the scheme of Settlement Laws the occupants of evacuee property were given status of tenant and that section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was intended to protect the occupants from being ejected before the expiry of six years from the date of notice of transfer and were allowed to remain in possession on the same terms and conditions as to payment of rent or otherwise on which the occupants before the transfer, hence date of transfer was not relevant for determining the status of occupant of evacuee property. Since the writ petitioners were in possession of evacuee property they were deemed as tenants of the transferee.

11. The learned Appellate Court had readily assumed the writ petitioners as tenants of the said property merely because of their possession being unmindful of the fact that under section 2(6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (now 1E repealed), only such occupant of evacuee house was deemed to be tenant of the transferee who had obtained possession of that house in pursuance of an order passed on or before 20th day of December 1958 by the Rehabilitation authority or any other Officer authorized or permitted by the Central or Provincial Government.

12. It was nobody's case that the writ petitioners were in possession of the disputed house as, tenants within the meaning of section 2(6) ibid and had been paying rent to the Settlement Authority.

13. Stance of the writ petitioners before the Rent Controller was that the disputed house was transferred to Salah-ud-Din through P.T.D. in 1973 and they had purchased the same from him through registered sale deed in 1978 and since then they are in possession as its owners. On the other hand, case of respondent No.2, was that he is lawful transferee of the said house through P.T.D. issued by the Settlement Department and since writ petitioners are in possession, they are his tenants.

14. P.T.D. issued in favour of Salah-ud-Din and registered sale-need executed by him in favour of writ petitioners was in respect of House No. 120 Block No. 14 whereas number of the disputed house is 102/A Block No. 14 which is a separate property and according to evidence produced on record writ petitioners are in possession thereof without any right or title P.T.D. in respect of the disputed house is in favour of respondent No.2.

15. In the circumstances, writ petitioners were trespassers, encroachers and illegal occupants of the disputed house but were certainly not the tenants either of the Settlement Department in the past or that of Muhammad Usman for his subsequent transferee respondent No.2. Remedy of respondent No.2, was to file a civil suit against the writ petitioners.

16. Although finding of the learned Rent Controller on issue regarding relationship between the parties was correct but reasons given by him for arriving at the said conclusions were not correct.

17. Habib Ullah's case was misinterpreted by the learned Appellate Court; it is not held in the said case that transferee of an evacuee property, after repeal of Evacuee Laws would be considered as landlord of the occupant. In that case the occupant had disputed finding of the Rent Controller on the issue of relationship on the ground that notice under section 30 of the. Displaced Persons (Compensation and Rehabilitation) Act, 1958 was required to be served on him in spite of repeal of that Act which was not served and as such Rent Controller had no jurisdiction. Contention was repelled as relationship of landlord and tenant was found to have commenced in that case after the repeal of the aforesaid Act. Facts of the said case were, therefore, distinguishable and did not apply to the facts and circumstances of the present case. The impugned judgment, therefore, suffers from misreading of evidence, erroneous assumption of facts, misconstruing of law and misinterpretation of case-law, it is accordingly quashed. N-292/L Order accordingly.