' MAULVI ANWARUL HAQ, J.---On 9-9-1974 Abdul Majid Khan, the predecessor-in-interest of respondents Nos. 3 to 6, filed an application for ejectment of the petitioners from a part of house No,S-II25-S-4, further described in the application. In the application, there is a reference to an earlier ejectment application filed by Abdul Majid against Fateh Muhammad (the predecessor-in- interest of the petitioners) who died during the pendency of the said application. The matter was contested by Muhammad Shafaqat Ali petitioner No,1 who was later proceeded against ex parte and an ejectment order was passed. In the course of execution, the petitioners filed objections that they are the L.Rs, and had not been impleaded. Objections were ultimately allowed by a learned ADJ, Lahore. It was then stated that Abdul Majid had served a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, '1958, on the said predecessor-in- interest of the petitioners. The ejectment application filed pursuant thereto was allowed but the order could not be executed. The ejectment of the petitioners was sought on the ground of default in payment of rent. The petitioner No,1 was stated to be an unauthorized sub-tenant. Bona fide personal requirement was also asserted. The petitioners filed a joint reply on 19-11-1974. It was asserted that the PTO on the basis whereof the ejectment application has been filed gives only 1/4th share to Abdul Majid and without partition ejectment cannot be sought. It was also stated that an LPA is pending in this Court against the transfer order in favour of Abdul Majid. Non-service of notice under section 30 of the said Act, 1958, was also alleged. Following issues were framed by the learned Rent Controller:--
(1) Whether the petitioner is transferee of property in dispute? OPA.
(2) Whether the relationship of landlord and tenant exists between the parties? OPA.
(3) Whether notice under section 30 of Act XXVIII of 1958 has been served upon the respondents?
OPA.
(4) Whether the partition is barred under action 14 of the Ordinance VI of 1959? OPR.
' Evidence of the parties was recorded. The learned Rent Controller passed an ejectment order on 7-11-1977. A first appeal filed by the petitioners was dismissed by a learned ADJ, Lahore, on 19-7- 1983.
2. Before I proceed further I deem it appropriate to state the history of litigation pertaining to the said property on the settlement side. In the first instance, the entire property No,S-II-25-S-4 was transferred to Abdul Majid vide order, dated 20-4-1960. One Allah Banda, stated to be the predecessor-in-interest of the petitioners and Ali Hassan, filed appeals against the said order.
These appeals were accepted by the Settlement Commissioner on 23-1-1961 who remanded the case to the DSC. After remand the DSC transferred the entire property in favour of Allah Banda.
Against this order two appeals were filed including the one by Abdul Majid. The Advocate Supreme Court vide order, dated 31-7-1963 held only Abdul Majid to be entitled to the transfer of the entire property. Against this order, four revision petitions were filed, which were dismissed by the Settlement Commissioner on 14-12-1964. This led to filing of Writ Petition No, 256-R/65 by Abrar Hussain while Writ Petition No,825-R/66 by Ali Hussain while Writ Petition No,591-R/65 was filed by the petitioners. All these writ petitions were decided by this Court by means of a common judgment, dated 5-3-1971 (Copy of this judgment is Exh.A.6). Writ Petition No, 591-R/65 filed by the petitioner as also W.P. No,256-R/65 filed by Abrar Hussain was dismissed. However, Writ Petition No,825-R/66 filed by Ali Hassan was allowed inasmuch as it was held that the property shall stand transferred to Ali Hassan and Abdul Majid in the ratio of 3/4th to 1/4th. Against this common judgment, the petitioners filed LPA No,63/71, which was dismissed by a learned Division Bench of this Court on 15-7-2003. C.P. No, 2444-L/03 filed by the petitioners has been dismissed by the Hon'ble Supreme Court of Pakistan on 17-2-2009. I may note here that the findings upheld by the Hon'ble Supreme Court are that Allah Banda had failed to establish his possession over the property in dispute within the meaning of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. I may further note here that the said Fateh Muhammad was a son of said Allah Banda and as such a brother of petitioner No,l.
3. Sh. Khalid Habib, Advocate/learned counsel for the petitioners has contended that since a PTO had not been issued in favour of Abdul Majid,' he could not have filed the ejectment petition on the basis of a simple order holding him entitled to the transfer. He relies on the case of Shabbir Ahmad v. Mst. Kabir-un-Nisa and others (PLD 1975 SC 58). According to him, notwithstanding the repeal of the Evacuee Properties and Displaced Persons (Compensation and Rehabilitation) Act, 1958, a notice under section 30 thereof was an absolute pre-condition and the same having not been complied with, the ejectment application was not competent. He relies on the case of Muhammad Iqbal Ahmad Qureshi v. Mst. Jaleesa Begum (PLD 1980 Lahore 443). Alternately argues that notice was served only upon Fateh Muhammad and not upon Allah Banda the father of petitioner No,1 who was in possession before the year, 1958. Finally, contends that the PTO gives only 1/4th share to Abdul Majid and as such he could not file the ejectment application. On the other hand, the respondent No,5 in person supports the impugned orders. According to him, the PTO has admittedly been issued and a co-transferee can file an ejectment petition. According to him, only Fateh Muhammad was in possession at the relevant time and a notice was duly served upon him.
4. I have gone through the writ petition and the documents, appended therewith, with the assistance of the learned counsel for the petitioners. The history of the litigation had gone on for about 50 years terminating in the judgment, dated 17-2-2009 of the Hon'ble Supreme Court has already been stated above.
5. So far as the said first contention of the learned counsel is concerned, I find that there is no denial in the written statement regarding issuance of PTO in favour of Abdul Majid. The only objection is that he has been given 1/4th share in the property. The said judgment in the case of Shabbir Ahmad, also lays down that a person in whose favour a PTO has been issued is a transferee within the meaning of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. So far as the objection as to competency of. Abdul Majid to A file ejectment petition being only a co-transferee is concerned, the same has been correctly met with by the learned Rent Controller with reference to the case. Of Khalique Ahmed v. Abdul Ghani and another (PLD 1973 SC 214).
6. The contention of the learned counsel that notwithstanding the repeal of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, a notice under section 30 thereof is mandatory, does find support from the said case of Muhammad Iqbal Ahmad Qureshi. However, the Hon'ble Supreme Court of Pakistan has held otherwise in the case of Mst. Jaleesa Begum v. Iqbal Ahmad Qureshi (PLD 1982 SC 396). It has been held that protection from eviction envisaged by section 30 of the Act XXVIII of 1958 disappeared with the repeal of the said act upon promulgation of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. I may note here that although the said Act of 1975 (XIV of 1975) was enacted on 28-1-1975 yet under section 1(2) of the same it had to take effect on 1-7-1974. The ejectment application itself was filed on 9-9-1974 i,e, at a point of time when the said repealing Act had taken effect. I, therefore, do find that the petitioners were not having any protection under section 30 of the said Act (XXVIII of 1958) and there was no need to serve a notice as being claimed by the petitioners. Be that as it may, I find that it has been proved on record that a notice, in fact, was served under the said provision of law upon Fateh Muhammad while regarding Allah Banda, the predecessor of the petitioner No,1, the finding of fact upheld by the Hon'ble Supreme Court is that he was not in possession during the relevant time.
7. The transfer in favour of Abdul Majid having been upheld upto Hon'ble Supreme Court of Pakistan while the claim of Fateh Muhammad and Allah Banda having been rejected, the relationship of landlord and tenant being there, rent having, admittedly not been paid, no exception can be taken to the impugned ejectment orders. The writ petition is accordingly dismissed but without any orders as to costs.