1988 PLP 204 (SCMR)

JAVID IQBAL, J.--This petition for leave to appeal have been filed by Ataul Haque petitioner in the following background: Respondent No.3 is in occupation of shop No.30 in the disputed property which was transferred as big mansion to the petitioner and two others on 24th August, 1960. On 14th October, 1965 notional possession of the said property was delivered to the petitioner etc. by the Settlement Authority under Para 18 of Settlement Scheme No.III and he was authorized to receive rent from 24th August, 1960 (page 92 of the paper-book). Thereafter, a private division was effected among the transferees and the shop in question i.e. No.30 occupied by respondent No.3 fell to the petitioner's lot. On 8th November, 1965 the petitioner gave notice to respondent No.3 under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act 1958 demanding rent with effect from 24th August, 1960 to 30th June, 1961 at the rate of Rs.250 p. m. and from 1 July 1961 to 30th November, 1965 at the rate of Rs.1,000 p.m. Subsequently on 21st February, 1966 the petitioner filed petition under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 as against respondent No.3. The petition was decided in favour of the petitioner but respondent No.3 filed an appeal which was accepted by the Additional District Judge on the ground that notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act sent by the petitioner to respondent No.3 was not in accordance with law. The petitioner then filed a second appeal against the order of the Additional District Judge in the High Court i.e. S.A.O. No.251 of 1968. This appeal was admitted for regular hearing but subsequently was adjourned till the dispute about the title then pending before the Supreme Court was decided. The dispute in respect of the title has been decided in favour of the petitioner by LPA Bench of the Lahore High Court Lahore (judgment reported in P I: D Lah.332). Against this judgment leave had been granted by the Supreme Court. The appeal in the Supreme Court was dismissed on 5th April, 1983 and thus the title of the petitioner was upheld. After the disposal of the appeal by the Supreme Court S.A.O. No.251 of 1968 was taken up whereby the impugned orders were set aside and the case was remanded to be decided on merits in accordance with law. However, after the decision of LPA Bench the settlement department issued regular transfer order in favour of the petitioner on August 1976. But after the decision of the SAO the Rent Controller again was seized with the matter and eventually dismissed the eviction application of the petitioner vide his judgment dated 4th December, 1983 on the ground that respondent No.3 was not a defaulter. The findings of the Rent Controller were upheld in appeal. The impugned orders of the Courts below were then challenged by the petitioner in writ petition No.3978 of 1984 which was dismissed by a learned Single Judge of the Lahore High Court, Lahore on 19th February, 1986. The reasoning of the High Court was that respondent No.3 was not a defaulter and that the property in dispute stood transferred to the petitioner only on the issue of regular transfer order in his favour on 3rd August, 1976. It was argued by the learned counsel for the petitioner before us that under Settlement Scheme No.III, Chapters VII and VIII pertaining to the possession and transfer of property, paras 18, 19 and 20, when a property is transferred provisionally, the transferee will be permitted to lease out the said property on such conditions as may be prescribed by the Settlement Authority. It was further submitted that as is apparent from the memo dated 14th October, 1965 by the settlement department issued to the petitioner and co-transferees, the notional possession of the property was delivered under para. 18 of the terms and conditions for the purpose of recovery of rent from the tenants of the property with retrospective effect from 24th August, 1960 (page 92 of the paper-book). It was thus submitted that since notional possession of the said property had been delivered to the petitioner on 14th October, 1965 he was authorized to receive rent in accordance with the aforesaid provisions of Settlement Scheme No.III and that it was not only after the permanent transfer deed was issued in his favour in 1979 that the could claim rent. Learned counsel pointed out that two conflicting views had been recorded in the following two judgments of the Lahore High Court, Lahore namely Attaul Haque etc. v . H . Malik Electric Co P L D 1971 Lah. 1007 and Mazhar Ali Azhar v. Dr. Inzarul Islam Qureshi P L D 1971 Lah.

104. In 1971 P L D 1971 Lah. 1007 it was held that rent was payable to transferees of evacuee property not on the basis of notional possession but only on account of permanent possession of property and that person given only notional possession cannot sue for ejectment of occupation on the ground of default in payment of rent. On the other hand in P L D 1971 Lah. 104 it was held that a person is entitled to get possession of property under Paras 18 and 19 of Chapter VIII of the Settlement Scheme No.III where payment of purchase money had been deferred either wholly or in part, then the property will be provisionally transferred to the purchaser. Such a person would become the landlord of the property and the provisions of section 30 of the Displaced Persons (Compensation & Rehabilitation Act, 1958 would become applicable to the case. It was argued that the question requires further examination as to which of the two views is legally correct. After hearing counsel, we grant leave inter alia to consider the true interpretation of Paras 18, 19 and 20 of Chapters VII and A VIII of Settlement Scheme No.III of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Security for costs in the sum of Rs.2,

000. The appeal shall be prepared on the present record with permission to file additional document if necessary. S.Q./A-129/S Leave granted.