P L D 1959 (W (PLP)

The argument that r. 6 of Pakistan Rehabilitation Rules, 1951 required a show-cause notice in the case of every unautho rised person, there being nothing to draw a distinction among those who were to be ejected, and that there were no degrees of unauthorised occupation, was unavailing. The qualities of two successive unauthorised occupants can differ. Two unautho rised occupants are not always independent of each other and when the possession of one has been derived through the other hen his possession is governed by the limitations to which the other was subjected. S. M. Anwar for Petitioner. Rustam Sidhwa for Advocate-General for Respondent No.

1. Sh. Rafiq Ahmad on (17-12-58) and Rustam Sidhwa on his behalf on 22-12-58 for Respondent No.

2. Dates of hearing : 17th and 22nd December 1958. I have ascertained the facts with the help of the learned Counsel for the parties. Counsel for the parties agreed that shop No. V/395, Naswari Bazar, Rawalpindi, was in the occupa tion of a local resident, namely Manzur Hussain, to whom a notice was given on the 27th of June 1 956 to show cause as to why he should not be ejected from it. After giving the notice, the rehabilitation authorities allotted the shop to one Gul Zaman on the 22nd of October 1956. On the 25th of November 1956, the Deputy Rehabilitation Commissioner ordered that Manzur Hussain be evicted from the shop, and in pursuance of the order a notice of eviction, dated 10th of December 1956, was issued. It was addressed to Manzur Husain or any other occupant. It was served on Manzur Hussain on the 22nd of January 1957. He preferred an appeal against the order of ejectment Which was dismissed on the 17th of October 1957. On the 23rd of December 1957, Abdul Ghani respondent No. 2, who was also desirous of getting the shop and applied for its allotment. Oncoming to know that the shop had been allotted to Gul Zaman he made a revision petition and complained that his application for the allotment of the shop had not been considered. The revision petition was accepted on the 23rd of December 1957, and the revising authority not only ordered the cancellation of the allotment of Gul Zaman but also remanded the case for the consideration of all applications. On the 24th of December 1957, Abdul Ghani, respondent No. 2, made a former application for the allotment of shop. He was apparently keen on getting the shop and, therefore, kept himself informed of what was happening in it. On the 20th January 1958, he made an application to the department and alleged that Manzur Husain was trying to sell the possession of the shop. A report-was immediately called on the application and the report, which is dated the 23rd of January 1958, disclosed that the shop was closed and that Manzur Husain was absent. Inquiries were, therefore, made and a statement of Abdul Ghafur, the present' petitioner, was recorded on the 8th of February 1958. He stated that the possession of the shop was given to him by Manzur Husain. On the same day, the Assistant Rehabilitation Commissioner allotted the shop to Abdul Ghani, respondent No. 2, and ordered that Abdul Ghafur, the present petitioner, be evicted from the shop. He, therefore, preferred an appeal against that order which was rejected on the 4th of March 1958. He then went in revision which was rejected on the 21st of May 1958.

2. Now, the petitioner has invoked the writ jurisdiction of this Court and his prayer is that the order of ejectment passed by the Assistant Rehabilitation Commissioner on the 8th of February 1958, as well as the orders passed in appeal and revision be quashed. The learned counsel for the petitioner has supported the petition on two grounds which are : (1) That the order of ejectment has been passed without giving a show cause notice to the petitioner ; (2) and that the petitioner cannot be avicted from the shop in virtue of section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Mr. Rustam Sidhwa, who appeared for the Advocate General on behalf of respondent No. 1 and privately for respondent No. 2, has con tested the validity of the grounds of attack of the petitioner's counsel with plenty of keenness. His reply was that the petitioner admittedly acquired the possession of the shop through Manzur Husain who was, at the time of delivering the possession to the petitioner, under a notice of ejectment. The petitioner thus stood in the shoes of Manzur Husain, and therefore, the show-cause notice which had been given to Nlanzur Husain was effective against the petitioner and that the order of ejectment passed against him on the 8th of February 1958 was not a new order but was in pursuance of the order of ejectment which had been passed against Manzur Husain on the 25th of November 1956.

3. It is clear that the order of ejectment, dated the 8th o February 1958, which was issued against the petitioner, is not hit by section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, because that section renders inoperative certain orders of ejectment passed on or after the 17th of February 1958. Counsel for the petitioner, however, contended that the order of ejectment passed by the Assistant Rehabilitation Commissioner on the 8th of February 1958 was subject to the decision of appeal and revision and, therefore, it became operative on the 21st of May 1958, when the present petitioner's revision petition was rejected. There is little force in this argument because the orders passed in appeal and revision do not take the place of the original orders except when and to the extent that the original orders are varied, reversed or set aside. In the present case, the order of the Assistant Rehabili tation Commissioner, dated the 8th of February 1958, was main tained in appeal and revision.

4. The only contention of the learned counsel for the petitioner which needs examination is that the show-cause notice which was given to Manzur Husain cannot be used against the petitioner. He has supported this contention on two grounds. Firstly, that rule 6 of the Pakistan Rehabilitation Rules, 1951, requires that notice should be given to every unauthorised person to show cause why he should not be ejected and no exception has been made in the rule so as to allow one to draw a dis tinction amongst those who are to be ejected. Secondly, that all unauthorised persons belong to one class as there are no degrees of unauthorised occupation.

5. The first contention of the learned counsel could be correct if no provision or principle of any other law was applicable for the purpose of enforcing the rule. This cannot be correct because if every one of the unauthorised occupants of a place were to be served with a separate notice to show cause against his ejectment, then each member major as well as minor, of the occupant's family and even his servants would be entitled to separate show-cause notices, but separate notices to them are not necessary because their occupation cannot be independent and in their own right and, therefore an order to eject a man, who is responsible for the occupation of others, embraces and includes the order to eject his dependents. They principles of law, therefore, which govern the relationship inter set of two or more occupants must be taken into consideration while enforcing rule 6 ; for otherwise its enforcement will not only be in disregard of the recognised principles of law but will also be rendered impossible. Just as a servant cannot claim a separate show-cause notice because of his relationship with his master, similarly, an unauthorised occupant to whom possession has been transferred by another unauthorised occupant cannot claim and independent notice to himself. In the case of a master and servant, who may be in occupation of a place simultaneously, the principle which excludes the necessity of two notices is that the occupation of the master being the whole of the right to occupy the place it includes the part also because the occupation of the servant is included in the occupation of the master. It is the same principle which is operative in the execution of a decree for the ejectment of a lessee, for under Order XXI, rule 35, C. P. C. a sub-lessee can be ejected although he was not a party to the suit for ejectment. In the case of two successive occupants, when one of them gets possession through the other, the principle which excludes the necessity of a separate notice to the successor is the principle of lis pendens.

6. Mr. Sidhwa in reply to the counsel for the petitioner discussed this principle and referred to section 52 of the Transfer of Property Act. He cited Gobind Chundar Roy v. Gurn Churn Kurmokar (I L R 15 Cal. 94), to elucidate the operation of the principle. In that case, the plaintiff filed a suit against the defendant to recover possession of certain lands and during the pendency of the suit the right, title and interest of the defendant were sold in the execution of a decree at the instance of the defendant and were purchased by a third person. After the sale, the plaintiff's suit was dismissed and the plaintiff preferred an appeal in which the Appellate Court reversed the decree of the Court below. The purchaser of the land was not made a party to the appeal. The purchaser, therefore, filed a suit against the plaintiff to eject him from the lands and to obtain their possession. The High Court held that the doctrine of lis pendens applied and, therefore, the suit of the purchaser was not maintainable. In connection with the operation of the doctrine of lis pendens, one should note, as pointed out in Achut v. Shivajirao (170 I C 172) that it is not based upon the knowledge of the person to whom the property is transferred that proceedings were pending against the transfer but rests upon the ground that, no party to a proceeding can alienate the property which is the subject-matter of the proceedings so as to defeat the rights of the other party.

7. The second contention of the learned counsel for the petitioner that there are no degrees of unauthorised occupation is not correct, and the difference in the quality of unauthorised possession is illustrated by the unauthorised occupation of a master and a servant. The occupation of the servant of an unauthorised occupant is also unauthorised but it has no independent existence and as such it is different in quality from the unauthorised occupation of his master. Similarly, the quality of two successive unauthorised occupants can also differ. If one unauthorised occupant is ousted or leaves and another unauthorised person takes possession of place independently of the previous occupant then the successor may be equal to his predecessor in the quality of his unauthorised possession but it is not so if the occupation of the successor is connected with the occupation of his predecessor by transfer or an assignment. This difference is illustrated in the operation of the doctrine of adverse possession and prescription. When one trespasser is able to claim possession through another trespasser and the adverse possession of such successive trespassers continues for a certain period of time, then the last one of them can tack on the adverse possession of his predecessors to that of his own and defeat the claim of the rightful owner. We should not forget that unauthorised possession of immovable property is a right, and as pointed out in the law of Adverse Possession by Krishna Swami at page 156 (1940 Edition); "A person who is in possession without title, has, while he continues in possession and before the statutory period has lapsed, a transferable and heritable interest in the property, but an interest which is liable at any moment to be defeated by the entry of the rightful owner." If the right or title of one unauthorised occupant is derived from the other, then the linked periods of possession-without-title can exceed the period of limitation prescribed by the law of limitation and become good against the rightful owner also. I am not discussing the various circumstances in which the period of limitation can be completed by tacking the adverse possession of one adverse possessor to that of another but wish only to illustrate that two unauthorised occupants are not always independent of each other and that when the possession of one has been derived through the other then his possession is governed by the limitations to which the other was subjected.

7. The learned counsel for the petitioner sugge4ed that taking for granted that the petitioner came into the possession of the shop through Manzur Husain he could disregard that connection and claim to be in the occupation of the premises as a full-fledged unauthorised occupant. He contended that his client was not claiming any right through Manzur Husain and if there was any right which he could claim then he gives it up, because everybody is entitled to give up what belongs to him. The fallacy of this argument lies in the disregard of the interest which the opposite party has in the connection between the petitioner and Manzur Husain. If that interest was not existing then the petitioner might have been in a position to give up any advantage which he could claim but the Rehabilitation Depart ment started ejectment proceedings against Manzur Husain and now it is the interest of that department to enforce its right for the benefit of the other allottees by continuing the proceedings to their conclusion. The learned counsel for the petitioner lastly contended that delivery of possession need not always be equal to transfer of possession and relied on an observation which appears at page 560 of P L D 1950 Kar.

554. It is true that a document which merely evidences the transaction of delivery of possession need not always be a sale deed, but in this case there was a complaint that Manzur Hussain was selling his possession. It is true that the distinctions which exist among a receipt evidencing delivery of possession, an agreement to deliver possession and a sale deed transferring the right of possession are important for purposes of stamp duty, prescription and similar purposes but such distinctions are flimsy in the present case to support the contention that the petitioner took the possession from Manzur Hussain but does not stand in his shoes as an unauthorised occupant. No fact was brought to my notice to show that the petitioner took the possession from but not through Manzur Hussain.

8. I am therefore not prepared to interfere with the orders passed by the officers of the Rehabilitation Department. The petition is dismissed with costs. A. H. Petition dismissed.