A plot bearing No. 23-G/D situate in Ward No. II Alipur, District Muzaffargarh was purchased by the appellant on 30th June, 68 from the Settlement Department through public auction. The property was permanently settled on him and P. T. D. Issued on 6-4-71. As per facts disclosed in the ejectment petition, even after service of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, on the respondents, the rent was not paid by them to the appellant. He, thereafter, filed an ejectment petition against the respondents on two grounds namely, the default and personal requirement.
2. The respondents denied the relationship of landlord and tenant on the ground that the appellant was merely transferee of the vacant site and that both under the Rent Restriction Ordinance as well as section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, the relationship of landlord and tenant between the transferee of a plot used for residential purposes and the occupants thereof cannot be said to have come into existence. This argument did not find favour with the learned Rent Controller who vide his order dated 4-10-73 granted the petition and ordered the ejectment of the respondents.
3. The respondents filed an appeal which was accepted by the learned District Judge, Muzaffargarh on 6-1-75. The learned District Judge, was of the view that as in para. 9 of the ejectment petition it was averred that the respondents were in unauthorised possession of the property, therefore, learned Rent Controller had no jurisdiction in the matter. The learned District Judge did not give any finding on the other issues as to whether or not section 30 of the Displaced Persons (Compensation and 'Rehabilitation) Act, was attracted in the circumstances of the case.
4. I have heard the learned counsel for the parties and gone through the record which was requisitioned earlier. Learned counsel for the appellant has argued that despite the respondents being unauthorised occupants of the plot the Rent Controller would have jurisdiction to hear the ejectment petition. He has also contended that section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, will be attracted and relationship of landlord and tenant, created between the parties, even in respect of a plot. He has relied on Mst. Zainab Bibi v. Iqbal Begum PLD 1974 Lah. 350and Chiragh Bibi v. Rahim Bibi PLD 1964 Lah. 136 in support of his submissions.
5. The learned counsel for the respondents on the other hand has primarily relied on the language of the statute, namely, the definition of the word "rented land" as given in section 2(f) of the Urban Rent Restriction Ordinance, 1959. It was further submitted by him that section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, applies only to the houses and shops, transferred under the provisions of the Act. It was forcefully urged that in the instant case, the respondents had raised huts over the disputed site claimed by the petitioner to have been transferred to him as a plot. These huts were being used for residential purposes, and that therefore, the property fell outside the ambit of section 2(f) of the Rent Restriction Ordinance. As a result of these submissions, he argued, that the learned Rent Controller did not have jurisdiction in the matter. It was further asserted that the petitioner himself averred in the ejectment petition that the respondents were in unauthorised occupation of the plot and in the face of this averment, the contention that the relationship of landlord and tenants subsisted between the parties, was clearly nullified. On the basis of these submissions the dismissal of the ejectment petition was sought to be supported by the respondents learned counsel.
6. In the ejectment petition it has clearly been stated that the respondents after becoming aware of the issue of Permanent Transfer Deed to the appellant built "katcha kothas" and "chhapar" over the site and their possession is without the permission of the appellant as well as that of the Rehabilitation authorities. The evidence led by the appellant also proved that the construction was of post transfer period. The statement of Mohammad Ramzan P. W. 8 shows that the construction comprised of a house. No doubt, the respondents in the written statement took the plea that they are in occupation of the plot after building house thereon since 1974 out the plea that the construction was raised by the respondents over the plot before its alienation to the appellant, was not formally adopted by him as a ground for the respondents' ejectment. It is well established that a plaintiff no setting up a case in the plaint is not entitled to rely on the pleadings of his adversry.
This view finds support from Pakistan v. Abdul Ghani PLD1964SC68. The sustenance of the ejectment petition is therefore, to be adjudged in the light of ,the stand taken up by the appellant in his pleadings and evidence.
7. Under section 13 of the Urban Rent Restriction Ordinance, a landlor's ejectment petition lies against a tenant in possession of a building or rented land. The building, may be either "residential building" o "non-residential building" as defined in the Ordinance. The relationship of landlord and tenant created by operation of law under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, is confined on between the transferee of a house or shop and the occupant thereof. Unless by interpretation of the relevant provisions of the Rent Restriction Ordinance and the Displaced Persons (Compensation and Rehabilitation) Act, the property transferred to the appellant is categorised as a house or a shop or for that matter a commercial unit, principally utilized for the purpose of business or trade, in contemplation of section 2(f) of the Ordinance, the Rent Controller cannot have jurisdiction in the matter. On this analysis of the relevant provisions of the two Statutes, the case set up by the appellant, clearly negatives the maintainability of the ejectment petition, for he did not even formally assert that the respondents utilized the plot for commercial purposes, much less to prove the same by evidence.
8. In Zainab Bibi v. Iqbal Begum PLD 1974 Lah. 350 cited by the learned counsel for the appellant, the structure was in existence before the transfer of the property to the respondent and the unauthorised construction over the plot was held in the nature of accretion to the plot belonging to its transferee. After holding that the case was covered by the Rent Restriction Ordinance, it has been observed at page 357 of the report that : "In view of the finding that the property in dispute must be taken to have been transferred along with the construction thereon, although it may be a building site under the above Act, it cannot be doubted that it falls within the definition of "house" or "residential building" under the above Ordinance."
Zainab Bibi's case is thus clearly distinguishable as in the instant case the structure constructed by the respondents cannot be considered as an accretion to the plot transferred to the appellant, or the appellant has been held transferee of plot only, the ratio of judgment in Msr. Chiragh Bibi v.
Rahim Bibi applying section 30 of the Displaced Persons (Compensation and Rehabilitation) Act to an unauthorised occupant of a house on the basis of extended definition of the word possession, also will not advance his cause any further, I, therefore, uphold the dismissal of the ejectment petition by the learned Additional District Judge, but on different grounds.
9. In the result, this appeal is found without substance and is dismissed with no order as to costs.