1984 PLP 1806 (CLC)

(3) Has the plaintiff remained in possession of the plot? If so, for what period ? (4) Whether the defendant has constructed small room in the middle of plot in dispute? (5) Is the suit maintainable? (6) Is the suit in proper form? (7) Is the suit properly valued? (8) Is the suit sufficiently stamped? (9) What should the decree be?

4. At the trial the plaintiff examined himself, his brother Samiuddin and also produced one Abdul Shakoor. The defendant examined himself and also examined Mr. Kishanchand and one Soomar.

5. The learned trial Court after recording the evidence and hearing the parties by judgment passed on 31‑7‑1969 decreed the suit. Against the judgment so given, the appellant filed Civil Appeal No. 52 of 1969 in the Court of District Judge, Dadu who by judgment and decree passed on 23‑2‑1970 dismissed the same.

6. The appellant has now preferred this Second Appeal under sec tion 100, C. P. C. m this Court.

7. Mr. Kishanchand the learned counsel for the appellant did not dispute the title of the plaintiff over the land in dispute and conceded that he is the owner having purchased the plot from the Settlement Authorities on 12‑2‑1962 and P. T. D. has already been issued in his favour on 8‑3‑1963. The learned counsel also admitted that status of the appellant is not that of a tenant, he having neither paid any rent nor is a recorded tenant of the Custodian. In view of this statement made by the learned counsel for the appellant the title of the plaintiff as the owner of the property in suit need no further examination and the findings of the two Courts below remain unchallenged.

8. As regards issue No. 2 the defendant in his written statement bad taken up the plea that he had remained in possession of the portion in dispute since partition and has got his W. C. on the said portion It may be pointed out before proceeding further that the portion in dispute is hardly 8 or 9 sq. feet and that it is in use as a latrine whereas the defendant resides else wherein the vicinity. The plaintiff in his evidence Exh. 49 deposed that he purchased this plot in 1962 in an open auction for which P. T. D. had been issued to him in 1963 and that in 1966 in his absence from the town in connec tion with his business trip for about IS days the defendant had encroached upon the disputed portion and constructed a latrine on it. On his protest the defendant promised that he would remove the same. Such a demand was made even in the presence of the witnesses Abdul Shakoor and plaintiffs own brother Samiuddin but the defendant kept him on false promises and hopes. This led to the giving of the legal notice, Exh. 51 dated 2‑6‑1966 and ultimately the suit was filed. The evidence of the plaintiff was supported by Samiuddin, Exh. 53, as well as by Abdul Shakoor, Exh.

54. In the cross-examination of these three witnesses the defendant was unable to show anything whereby he could establish that his possession of the disputed portion was legal We have already seen above that title other plaintiff has not been challenged, by Mr. Kishanchand, Advocate for the appellant. As against the above evidence of the plaintiff' briefly discussed, the defendants witness Mr. Kishanchand stated that the portion of disputed land is adjacent to a temple in Kotri and that it always remained in possession of the Pujari of the temple and that he also has his own house in Kotri adjacent to the plot. Accordingly to Mr. Kishanchand in 1956‑57 encroachment on the plot in dispute was made by some Pathan whereupon defendant filed a complaint before the F. C. M., Kotri which resulted in compromise and the said Pathan vacated the plot and that since then it is in possession of the Pujari, and that the present Pujari is Sitaram, the defendant. It was denied that Sitaram had encroached on this plot. In cross‑examination Mr. Kishan chand had stated that he did not know who was the disputed plot in 1947. The defendant Sitaram (Exh. 58) in his evidence stated that the plot has always remained in possession of the temple and that in 1958 one Pathan had encroached upon the plot against when a case was filed and ultimately the said land was vacated. He denied that Alimuddin the plaintiff had asked him to vacate the plot. According to him the defendant never lost possession of the portion of the plot except for a few days when the Pathan had encroached upon it. He bad also admitted that he had neither paid any rent for the portion of the plot nor he ever received any notice for payment of rent from any department of Government. In the cross‑examination he also denied to have received any notice from the plaintiff: He further admitted that on the portion in dispute he has got a latrine.

9. In the above state of facts and the evidence, the only plea which was advanced by the learned counsel for the defendant during his argument in this Court was that the defendants possession of the disputed portion, was protected under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the defendant being in possession of the plot since before transfer of the property in favour of the plaintiff. According to Mr. Kishanchand, the appellant is in possession of the property since 1960 whereas the plot was purchased on 12‑2‑1962 and P. T. D. was issued on 8‑3‑1963 and thus he claimed that the possession of the defendant was protected under section

30. Before examining the plea thus raised I would like to note here that Mr. Kishan Advocate during his arguments had admitted that the defendant is not a tenant in respect of the disputed portion in his possession. He also does not contend that the possession of the defendant is that of a trespasser. Now we proceed to consider if the defendant's possession is protected under section 30 of D. P. Act of 1958. The learned counsel Mr. Kishanchand admitted the fact, which fact also; stands proved by evidence on record, that the defendant at no time was the tenant of the Custodian and that he was also not declared by Custodian to have tenancy rights from a date prior to 14‑8‑1947 as contemplated by section 30 (1). It is also to be noted that a person who fulfils the condition laid down in section 30 is deemed to be tenant of the transferee of a shop or house land other specified property) as the case may be, on the same terms and conditions as to payment of rent or otherwise on which the occupant held it immediately before transfer. Admittedly the appellant/tenant is neither in occupation of any shop or a house nor he claims any tenancy rights. In, the circumstances it cannot be argued that the possession of the defendant of a small portion of open plot where he has raised a small latrine measuring about 9 sq. feet, could claim any protection under section

30. It is settled law that mere occupation of any portion of evacuee land would not confer any right upon the occupant (defendant) to claim any protection under section

30. If any authority is needed reference may be made to the case of Waris Khan v. Abdul Aziz (P L D 1967 Pesh. 56) and also the case of Muhammad Tufail v. Barkat Ali (P L D 1967 Kar. 151). In the case of Muhammad Tufail the learned Single Judge while interpreting and considering the effect of section 30 observed 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 is contemplated by the section is on the terms and conditions of the tenancy of the previous occupation. 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."

10. The learned trial Court in the judgment delivered by him found that the defendant had not claimed that he was the owner of the plot in dispute. In his evidence the defendant's own witness Soomar stated that the latrine in dispute was constructed by the defendant about 8 or 9 years back. His evidence was recorded on 12‑5‑1979 which Shows that the latrine was constructed some where in 1960. Mr. Kishanchand Advocate also admitted during his arguments that the defendant occupied the portion of land in dispute in 1960. In the state of evidence on record, the learned trial Court came to the conclusion as follows :‑ "For these reasons my conclusion is that plaintiff has proved his version and defendant failed to rebut it. My answer to this issue that defen dant constructed the small room (latrine) on the said plot in 1966 as alleged by the plaintiff."

11. The learned Appellate Court discussed the evidence and observed that the two witness of the defendant Mr. Kishanchand and Soomar did not utter a single word in rebuttal of the assertion of the plaintiff and his witnesses that the defendant had constructed the latrine in 1966. Having discussed the evidence the learned 1st Appellate Court held :‑ "That being so it is not difficult to infer that the aforesaid construction was made by the appellant some time in 1966."

12. In view of the concurrent findings given as above and perusal of the record by me with the assistance of the learned counsel. I find that conclusions arrived at as above, by the two Courts below are based upon material on record and do not suffer from any illegality or infirmity which call for any interference by this Court within the meaning of section 100, C. P. C. The appellant is not a tenant or even occupant of the portion of plot 8 sq. feet or 9 sq. feet which is neither a house nor a shop. He having come in possession of the portion of land in suit in 1966 and in any case after 20‑12‑1958, could not even otherwise claim any benefit under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.

13. The upshot of the above discussion is that this appeal is without any merits and is dismissed with costs. In the end I would like to add that Mr. Kishanchand Advocate having himself appeared as a witness in the suit on behalf of the appellant, ought not to have appeared to an Advocate in the same proceedings. M. B. A. Appeal dismissed.