1979 PLP 155 (CLC)

This is an appeal against an order of Mian Ghulam Ahmad, Additional District Judge, Multan dated 27th March 1979 dismissing the appellants' appeal against the order of their eviction passed by the Rent Controller on 9th December 1975.

2. The property in dispute is a plot over which admittedly construction has been made by the appellants for residential purpose. A plot bearing an area of 9 marlas including the area in dispute measuring, 3 marlas was transferred to the respondent by the Settlement Department in auction on 22nd December 1967 and this auction was confirmed on the 7th March 1968. On some appeal the case was remanded to the Deputy Settlement Commissioner but he held the auction proceedings to be valid. Thereafter a P. T. D. Exh. 47 was issued in favour of the respondent on 23-8-1971.

3. The respondent filed an application for ejectment of the appellants on ground of default in the payment of rent at the rate of Rs. 30, as also on ground that the property was required for residence and that the appellants had damaged the property with a view to impair its value. The appellants denied the relationship of landlord and tenant. There was an allegation. that a notice under section 30 had also been served upon the appellant. It was denied that any valid notice was served. The jurisdiction of the Rent Controller was also challenged. It was stated that the appellants had raised the construction over the disputed property at a considerable cost.

4. The Rent Controller framed the following issues :- (1) Whether the relationship of landlord and tenant exists between the parties ? (2) Whether a valid notice under section 30 of Displaced Persons (Com pensation and Rehabilitation) Act has been served on the respondents? (3) Whether this Court lacks jurisdiction to try this application? (4) Whether disputed property has not been properly described in the application ? (5) Whether the respondents have raised any construction over the disputed property, if so, with what effect?

5. The learned Rent Controller decided issues Nos. I and 2 in favour of the respondents. Issues Nos. 3 and 4 were decided against the appellants. In regard to issue No. 5 it was held that the construction was unauthorised implying that it was made by the appellants. As a result of these findings the learned Rent Controller passed the order of ejectment. The learned Additional District Judge agreed with the finding about the relationship of landlord and tenant as well as the service of the notice. An application was made before him on behalf of the appellants for permission to lead additional evidence. He was allowed to produce Exh. R2 an extract from the record of Excise & Taxation Department pertaining to the year of 1970-71 according to which the annual rents: value of the site was Rs.

144. However, he held that even though the demand was excessive the appellants should have paid whatever amount they considered to be the lawful rent. It was argued before the learned Additional District Judge that being an open site and the construction having been raised by the appellants, the site was not covered by section 13 and no relationship of landlord and tenant arose. This argument was repelled on the strength of Mst. Zainab Bib! v. Mst. Iqbal Begun (P L D 1974 Lab. 350).

6. It is the last 'argument which was urged by the learned counsel. I have gone through the record. I find that it is nowhere alleged by the appellants either in the written statement or during evidence that they had been in authorised possession of the plot. I agree with the learned counsel that section 30 as such would not apply as held in Ayoob and another v. Masjid-e-Noncan (1973 S C M R 604) in fact the same view was taken in Mst. Zainab Bibi v. Mst. Iqbal Begum. But unless the appellants case be that they were in authorised possession, they would be taken to be holing the property subject to payment of rent under the Rehabilitation and Settlement. Department as allottee. After the transfer of the property to the respondents the latter stepped into the shoes of the earlier landlord and thus such relationship was created not only under the general law but also under the principle of section 109 of the Transfer of Property Act. There is no doubt that the relationship of landlord and tenant was there between the parties despite the inapplicability of section 30.

7. Now the only question is whether this property should be considered for the purpose of Ordinance of 1959 as a residential property or some other type of property. No doubt if it is held to be only a plot, the Rent Controller would have no jurisdiction unless the plot is used for commercial purpose. It is evident from the evidence on record that the appellants were in possession of the property. Though the respondent's case at once stage was that this plot was without any construction at the time when it was transferred to him but he had to admit that there was construction on it and he did not know to whom the construction belonged. On the other hand it is clear from the evidence of the appellants themselves that they had a katcha room over the plot in which they had been residing. Later on several years before the institution of the application for ejectment they raised new construction. From the circumstances of this case there is no reason why the appellants' own evidence on this point should not be believed. I am, therefore, clear in my mind that the appellants had raised construction in the plot and had been residing therein. In these circumstances the principle laid down in Mst. Zainab Bibi v. Mst. Iqbal Begum (P L D 1974 Lah. 350) is attracted in which it was held that though a plot whether constructed may be a plot within the meaning of Displaced Persons (Compensation and Rehabilitation) Act but since the construction therein passed to the transferee as accretion f the property, it would be a house for the purpose enjoyable by the owner of Ordinance of 1959.

8. Faced with this situation the learned counsel argued that the appellants had in fact constructed the plot in dispute after she transfer. He placed reliance upon the statement of the respondent referred to above. But this argument is not of any substance since I have already disbelieved the respondent on this matter. So far as the appellants are concerned, it has never been their case that they had no construction prior to the date of the transfer or even prior to 1958.

9. This appeal is, therefore, without merit and is dismissed but I would leave the parties to bear their own costs. Appeal dismissed.