NASIM HASAN SHAH, J.--This is a certified appeal against the judgment of our learned brother K. E.
Chauhan, J. dated 31-3-69 whereby he accepted the appeal of the respondent and remanded the case to the learned Rent Controller for fresh decision in accordance with law in the light of the observation made in the judgment.
2. The facts of the case have been stated at full length In the judgment under appeal and need not be repeated. Suffice it to say that the present appellants who claimed to be transferees of a big mansion under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter called the Act) which comprises inter alia the shop in dispute served a notice under section 30 of the Act on 8-11-65. On the respondent intimating that the big mansion had been transferred to them by the Settlement Department and that the tenant should pay rent of the shop in his occupation to them as he had become statutory tenant under them. The rent was demanded from 24-8-60. On this date the appellants had been intimated by the Settlement Department that their offer for the transfer of the said mansion had been accepted. As this notice was not complied . with the landlord filed an application under section 13 of the Rent Restriction Ordinance, 1959 for the eviction of the tenant from the shop in dispute. The tenant denied the relationship of landlord and tenant and pleaded that no Provisional Transfer Order (P. T. 0.) had been issued to the appellants and that they were not the transferees of the big mansion or the shop located therein. The validity of the notice issued by the landlords was also denied. The learned Rent Controller framed two preliminary issues, which are to the following effect : (1)Does the relationship of landlord and tenant exist between the parties?
(2)Did the applicants serve the respondent with a valid notice under section 30 of the Act, 1958?
By an order dated 7-10-67 the Rent Controller decided the preliminary issues against the tenant.
The tenant appealed against the above decision and the learned Additional District Judge by his order dated 18-10-67 dismissed the appeal observing that no appeal against mere findings of the Rent Controller is competent. The matter thereafter came up for further proceedings before the Rent Controller on 21-10-67 and the Rent Controller passed an order on the said date under section 13 (6) of the Ordinance, directing the tenant to deposit rent with effect from 24-8-60 to 30-9-67 at the rate of Rs, 100 per month and future rent and the same rate before the 15th of the month following the one for which rent was due. The tenant, thereupon, filed an appeal against the above order dated 21-10-67 but the Additional District Judge dismissed the same vide his order dated 23- 7-58. Dissatisfied with the said order the tenant moved this Court, in second appeal, which has already mentioned, was disposed of by our learned brother in the manner indicated above.
3. The learned Single Judge has held, in his impugned judgment, that in appeal filed against the order of deposit of rent under section 13 (6) of the Ordinance the finding regarding the existence of the relationship of landlord and tenant can be questioned. It has been observed that doing so does not amount to filing an independent appeal against mere findings but they constitute the basis for the order of deposit under section 13 (6) and as such they are liable to be scrutinised. An examination of the finding recorded on the question of the existence of the relationship of landlord and tenant, it is pointed out, is inherent in examining the propriety of the order under section 13 (6).
He has, therefore, found that the Additional District Judge had acted contrary to law in not allowing the tenant to contest this finding, in the appeal preferred before him. As regards the question whether the relationship of landlord and tenant existed between the parties, it was observed that in order to establish this fact the landlords must establish two things, namely :- -- (a)that they are transferees of the big mansion in dispute and (b)that they have served a valid notice on the tenant.
In this connection it has been pointed out that in order to establish the first point, the landlords relied upon two letters viz. Exh. A/1 dated 24-8-60, which is a Memorandum from Mr. I. A. Khan, Settlement Commissioner (Industries) to the appellants to the effect that their offer for the transfer of the big mansion in question had been accepted, subject to the terms and conditions prescribed for the disposal of big mansions by auction ; and, Exh. A/2, which is a Memorandum dated 14-10-65 from the Additional Settlement Commissioner (Industries) stating that notional possession of the property was being delivered as required in para. 18 of the terms and conditions, for the purpose of recovery of rent from the tenants of the property with retrospective effect from 24-8-60. These letters were proved by Muhammad Hussain, Record Keeper, who appeared as A. W. 1, and further stated that letter Exh. A/1 constituted the P. T. 0. The learned Judge doubted this statement and observed that it was a moot point whether mere communication of the acceptance of the offer made by the landlords to purchase the property, on a particular price "meant that the property stood transferred or provisionally transferred to the landlords or whether it constituted a mere agreement to transfer on that price". He was also of the opinion that the offer having been accepted only by the Settlement Commistioner (Industries), who was not delegated the powers of Chief Settlement Commissioner, through any Gazette notification, the latter was not competent to transfer big mansions by negotiation. The landlords, in order to satisfy the learned Single Judge that they were in fact the transferees attempted to produce before the learned Judge further material such as the order of Sheikh Muhammad Rafiq, Settlement Commissioner with delegated powers of Chief Settlement Commissioner dated 11-8-62 but this was disallowed on the consideration that as the matter was going to be remanded to the learned Rent Controller the fresh material should be produced before him. His own words are these: "Since the landlords want to adduce additional evidence and take up new pleas and also because the learned Rent Controller and the learned appellate authority have not adverted to the aspects of the case hereinbefore referred, I do not want to give my own adjudication on the status of the landlords as to whether they constitute valid transferees of the big mansion concerned or not, and I think, the interest of justice will be met if the aforementioned evidence (or such other which the landlord may wish to produce) is allowed to be led by the landlords before the learned Rent Controller, subject, of course, to all just exceptions and subject to giving the tenant due opportunity to meet the same or lead evidence in rebuttal".
4. As regards the question of the validity of the notice under section 30 of the Act, which was issued on 8-11-65, it was observed that this point would also have to be determined afresh after the point regarding the existence of relationship of landlord and tenant is redecided by the learned Rent Controller. It was also observed that he should inter alia examine as to when the transfer of property took place in favour of the landlords; when the notice was issued and from which date the tenancy, if at all, came into existence and whether the demands made in the notice were in accordance with law and if not what was its effect upon the validity of the notice in question.
5. The learned Single Judge also held that the order of the Rent Controller dated 21-10-67 directing the deposit of rent for the period beyond three years was in excess of his jurisdiction. Reliance for this finding was placed upon Ashfaq-ur-Rehman v. Chaudhri Muhammad Afzal , wherein it is laid down that no rent beyond three years can be directed to be deposited. In view of these findings the order passed by the learned Rent Controller dated 21-10-67 was quashed and the case remanded to him for decision afresh after adjudication of the point about the existence of the relationship of landlord and tenant between the parties.
6. This appeal was heard alongwith the L. P. A. No . 185 of 1965, Wali Muhammad v. Inam-ul-Hassan etc. wherein the orders of transfer passed by the Settlement Authorities in favour of the appellants had been questioned. By our judgment announced today in L. P. A. 185/65 it has been held that the order passed by Mr. I. A. Khan, Settlement Commissioner (Industries) dated 24-8-60 accepting the highest bid of the appellants in respect of this big mansion and the order of Sh. Muhammad Rafiq, Settlement Commissioner with delegated powers of Chief Settlement Commissioner, dated 11-8-62 refusing to review the said order, are not open to exception. In this view of the matter the doubt raised in the order of the learned Single Judge as to the validity of the orders passed by the Settlement Authorities on the ground that the offer of the appellants to constitute a valid acceptance should have been accepted by the Chief Settlement Commissioner whereas in this case it was only accepted by the Settlement Commissioner (Industries) who had not been delegated his powers action in the official Gazette, now stands removed on account of the judgment delivered in the aforementioned Letters Patent Appeal. The remand of the case to the Rent Controller for recording of evidence on this point is, therefore, not necessary. However, the other question raised in the order of the learned Single Judge, namely, "whether the mere communication of the fact that the offer of the landlords to purchase the property on a particular price has been accepted meant that the property stood transferred or provisionally transferred to the landlords or whether it constituted a mere agreement to transfer on that price" still requires examination.
7. In support of their contention that the property stood transferred in their favour reliance is placed by the appellants on two documents, namely, Exh. A/1 and Exh. A/2 and the statement of A. W. 1, Muhammad Hussain Record Keeper who described the document Exh. A/I as a Provisional Transfer Order (P. T. 0.). The question that requires determination is whether the appellants can in law on the basis of the said two documents dated 24-8-60 (Exh. A. 1) and dated 14-10-65 (Exh. A/2) be regarded as the "transferees" of the property within the meaning of section 30 of the Act so as to be able to deal with the occupant of the property as their statutory tenant and to serve a notice on him. It is contended on behalf of the appellants that in the case of transfer of Big Mansions, the issuance of P. T. Os. is not contemplated. It is submitted that issuance of P. T. 0. is only visualised in1 the Schemes relating to (a) the Transfer of Houses and Shops (Settlement Scheme No, 1, para. (37),
(b) the Rehabilitation of persons from Jammu and Kashmir (Settlement Scheme No, IV, para. 22) and (c) the Transfer of Houses to claimants by drawing of lots (Settlement Scheme No, V, para. (11) but for transfers to be made under Settlement Scheme No, 11 (Scheme for the Disposal of Evacuee Industrial Concerns and Unregistered Factories) and under Settlement Scheme No, III (Scheme for the Disposal of Big Mansions and Hotels) P. T. Os. are not to be issued. This last mentioned Scheme, which deals with the disposal of Big Mansions and Hotels, prescribes the procedure to be followed while disposing of Big Mansions through unrestricted public auction. The transfer made in the instant case is by private negotiations under the terms of the Central Government Order dated 30- 5-60 issued under section 10 of the Act and the provisions of Settlement Scheme No, HI are not applicable in terms unless they are made applicable to transfer to be effected under the order dated 30-5-60 passed by the Central Government under section 10 of the Act.
8. In order to appreciate the contention raised on behalf of the appellants, it is necessary to examine with care the terms of the memoranda relied upon by the appellants. The first of these (Exh. A/1) which is dated 24-8-60, reads as follows: "From Mr. I. A. Khan, CSP, Settlement Commissioner (Ind.), Lahore.
To Inam Hassan Khan and others, Dinga Singh Building, Beadon Road, Lahore. No, 4446-F&M-Reh.-60. Dated Lahore the 24th August 1960.
Subject:--Disposal of Big Mansion Dinga Singh Building, Beadon Road, Lahore.
Reference your application dated nil on the subject cited above.
Your offer for the transfer of big mansion bearing property No, S-37-R-161, Beadon Road, Lahore, at its 55 years' gross rent according to the assessment of Lahore Corporation made in 1946 has been accepted subject to the terms and conditions prescribed for the disposal of big mansion by auction. The price of the building will, however, have to be paid in lump sum within 30 days of the receipt of this Memo.
The gross rent of the building as available in the record of this department is Rs, 638-8-0 and as such the price comes to Rs, 4,21,410 (rupees four lacs, twenty one thousand four hundred and ten only). You are required to please accept this price subject to necessary adjustments, if any after verification of rent.
You are requested to please furnish the following documents so that detailed orders are issued:
(1) The names of joint transferees specifying their respective shares in the form of an agreement of association.
(ii)An affidavit of each claimant transferee individually stating that he has not availed of the amount of compensation due to him. If any amount has been availed of, it may please be indicated therein.
(iii)Compensation Books of all the claimant transferees. All these documents should please be furnished to this office within 30 days, otherwise the acceptance of your offer will be cancelled without giving any notice and appropriate action will be taken against you. (Sd.) Atta- Mohiuddin Khan Deputy Settlement Commissioner (Ind.) For Settlement Commissioner (Ind.) Lahore."
The facts which emerge from the above are:
(a) the offer for transfer was accepted at 55 years gross rent, (b)the acceptance was subject to the terms and conditions prescribed for the disposal of big mansions by auction, (c)the price was to be paid in lump sum withing 30 days, (d)the furnishing of further documents and particulars was desired to enable issuance of detailed orders such as the names of joint transferees, the share which they respectively wished to have in the property, the compensation books of all the transferees and information whether any amount out of it had been availed of.
9. In this background it is to be seen whether the memorandum, reproduced above, makes the appellants the "transferees" or the "provisional transferees" of the property in question.
10.According to this memorandum, except for the matters dealt with therein, the terms and conditions prescribed for the disposal of big mansions by auction are to apply. Settlement Scheme No, III which deals with the disposal of big mansions by unrestricted auction is in two parts. The first part contains the main Scheme while the second cart prescribes the terms and conditions of the auction. A perusal of the main Scheme shows that the first nine paragraphs thereof deal with the preparation of lists of big mansions, the auction programme and conduct of auction while paras.
Nos, 10 and 11 deal with the transfer of property. These paragraphs are in the following terms:-- "(10) When the Chief Settlement Commissioner has accepted the bid and the amounts payable by the auction-purchaser have been paid in accordance with the terms and conditions of auction, the Chief Settlement Commissioner will pass an order transferring the auctioned property to the purchasers.
(11) Where the order transferring the property has been passed and communicated to the transferee the proprietary rights in the property shall, subject to the terms and conditions of auction, stand transferred to him free from all encumbrances."
11.Coming now to second part of the scheme laying down the terms and conditions of auction the following conditions are pertinent for our purposes and to the extent relevant are reproduced hereunder : "(12) In case the highest bid made and accepted is that of a local or a non-claimant displaced person whether bidding singly or jointly with other locals or non-claimant displaced person, the whole amount of the bid money will be paid within thirty days of the date of receipt of the intimation of acceptance .
(13) In case the highest bid made and accepted is that of a claimant whether bidding singly or jointly with other claimants, each one of the claimants will be entitled to the benefit of deferred payment as well as to the facility of making payment in instalments in respect of his share in the property in accordance with the provisions of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958 as amended.
12.In the case in hand the appellants were required to pay the price of the building within 30 days, and were not allowed the facility of making payment by instalments and were required to pay the whole amount in lump sum within 30 days. It follows, therefore, that they were to be treated, for the purposes of payment of the price at par with the locals and non-claimants.
13.In these terms and conditions the question of delivery of possession of property is dealt with in para. 18 of the terms and conditions which states: "After the acceptance of the bid, the possession of the property will be given to the purchaser :
(I) On payment of the full price where the price is payable in lump sum; (ii)On payment of the first instalment where the price is payable in instalments after the adjustment of deferred pay-ment ; (iii)On acceptance of the offer by the Chief Settlement Commissioner where the amount is covered by deferred payment."
The above provisions make it clear that where price is payable in lump sum the possession of the property is to be given to the purchaser after the full price has been paid.
The question of transfer of property is dealt with in paras. 19 and 20 of the terms and conditions, which are as follows: "(19) (a) Where the purchase money has been paid in full, the property will be permanently transferred to the purchaser.
(b) Where payment of purchase money has been deferred either wholly or in part the property will be provisionally transferred to the purchaser.
(20) (a) Where a property is transferred permanently, the transferee will acquire full proprietary rights in it.
(b) Where a property is transferred provisionally proprietary rights will not vest in the transferee; but he will be permitted to lease out the property or to mortgage it or make additions and alterations in it on such conditions as may be prescribed by the Chief Settlement Commissioner."
A perusal of the above provisions would show that the question of provisional transfer, by virtue of which the purchaser is permitted to lease out the property, arises only where payment of the purchase money is allowed to be made by instalments and payment has been deferred either wholly or in part. Where payment is to be made in lump sum and instalments are not allowed the concept of provisional transfer is not envisaged.
15.In the face of these provisions it is not possible to accept the contention that the property was provisionally transferred in favour of the appellants by the memo. dated 24-8-60 (Exh. A/I) or that this was in the nature of a P. T. 0. In fact the price in this case was to be paid in lump sum and the benefit of instalments was not allowed and, therefore, on the wording of the memorandum itself there was no question of provisional transfer. Moreover, as the terms of Exh. themselves show this memorandum deals only with the matter of acceptance of the offer and the mode of payment and nothing more. However, under the relevant scheme it is only after the price has been paid in full or its payment is deferred wholly or in part, that the property is to be transferred permanently or provisionally, as the case may be, to the purchaser. The memorandum in question only conveys the decision of the Settlement Authorities to transfer the property in favour of the appellants and the transfer has not been effected under it. This could take place only after the conditions laid down in the memorandum dated 24-8-1960 (Exh. A/1) had been fulfilled.
16.As to the second document relied upon by the appellants in support of their claim to be treated as "transferees" of the property, within the meaning of that word in section 30 of the Act, it is necessary to examine Exh. A/2. This states:-- "From The Addl. Settlement Commissioner (Ind.), West Pakistan, Lahore.
To Messrs Inam Hassan Khan and others Khan Medicos, Beadon Road, Lahore.
Subject:--Big Mansion Bearing No, S-37-R/161, Beadon Road, Lahore. Reference your representation dated 8-10-65, on the subject noted above. You are hereby delivered notional possession of the property cited as subject, as required in para. 18 of the terms and conditions for the purpose of recovery of rent from the tenants of the property with retrospective effect from 24-8-60. (Sd.) M. Muqarrab Khan, Additional Settlement Commissioner (Ind.), West Pakistan, Lahore."
This memorandum purports to be issued under para. 18 of Settlement Scheme No, III. Under the said provision, as has already been noticed above, the possession of the property will inter alia be given to the purhaser on payment of the full price where the price is payable in lump sum. The necessary consequence of the payment of the full price under paras. 19 and 20 of the Scheme is that the property will be permanently transferred to the purchaser and the transferee will acquire full proprietary rights therein. It is not clear from the terms of Memorandum Exh. A/2 as to whether the full price had been paid by the purchasers and on what date. Moreover, if the condition as to payment of full price was fulfilled the appellants would automatically be entitled to the permanent transfer of the property under paras. 19 and 20 of the Scheme.
17.It is further to be observed that Scheme No, III has been framed under section 16(1)(b) and (c) of the Act but the power of transfer of property out of the compensation pool is conferred by section 10 of the Act. A reference to section 16 further shows that the Scheme made thereunder are subject to the rules framed under the Act. The rules of permanent transfer framed under section 10 of the Act were notified in the official Gazette on the 30th May 1961. These rules will, therefore, to the extent of repugnancy, prevail over the provisions of the scheme. A similar view has been taken in Mst. Bakho v. Mst. Sairan etc. . Under rule 3 of these Rules, the name of the "proposed transferee"
(i,e,, a person who is entitled to the transfer of the property under the Act) or a "provisional transferee" who has paid in full the transfer price, settlement fee and public dues will be entered in a record maintained for this purpose whereupon the property shall stand permanently transferred to the "proposed" or "provisional transferee". Thus, the provisions of para. 19 (a) and para. 20 (a) of Settlement Scheme No, III being subject to these rules. will stand superseded to the extent of any inconsistency. The result will be that the permanent transfer in the present case would take place in case the full price has been paid after the 30th of May 1961, not merely after the price has been paid in full as required under E para. 19 (a) of the scheme, but after the settlement fees under rule 3 of the Permanent Transfer Rules had been paid, because after the enforcement of those rules it will only be on the entry of the name of the "proposed transferee" in the register mentioned in rule 3 of the Rules that the permanent proprietary rights shall stand conferred on him.
18.The terms of the Memorandum Exh. A/2 wherein it is mentioned that "notional possession" has been given does not reveal the basis on which this has been ordered. Nor is the basis on which this order is grounded decipherable on the present record. If the full price was paid by 14-10-65, on which date the above memorandum was issued, the appellants would be entitled F not only to the possession of the property but also to its permanent transfer, subject of course to the payment of the settelment fees (if the price was paid after 30th May 1961) Thus rent would be payable to the appellants not on the basis of delivery of notional possession of the property but on account of its permanent transfer in their favour.
19.The meaning of the word "transfer" for the purposes of section 30 of the Act has been examined in a recent judgment delivered in the case of _Messrs Murree Hill Transport Ltd. v. Agha2 Ghulam Jillani (L. P. A. No, 217/68) and the view has been expressed that: "that word 'transfer' conveys different meanings in different contexts. In a broad sense it means 'dispose of or `sell'. In the law of property, it means passing of proprietary rights from one person to another. Under the permanent transfer rules a transferee in whose favour a record of permanent transfer has been made shall be entitled to hold and enjoy the property and all the rights, title and interests appurtenant thereto transferred to him and the right to transfer or alienate the same in accordance with the normal law (vile rule 4). It is true that under the provisions of Settlement Scheme No, I a property can also be deemed to have been transferred for certain purposes after the issuance of a P. T. 0. under paragraph 37 of the scheme namely, for purposes of leasing out the property or for mortgaging it. This concept has been explained by the Supreme Court in Rahim Bakhsh v. Ch. Ahmad Bakhsh etc. PLD 1964 SC 189 and the following observations in this connection are relevant. `Paragraph 37 of Settlement Scheme No, 1, framed under section 16(1)(b) and (c) of the Act gives express right to lease out and mortgage the property to a transferee.' Thus although the title in the property passes to the transferee only after the P. T. D. is granted and the property in question cannot be considered to have been transferred until then, a P. T. O. holder may be considered to be the transferee for certain limited purposes including the right to deal with the occupant of a premises as a statutory tenant. No such rights have been conferred by any provision whatsoever on the person in whose favour an order of transfer of a property has only been passed.
Such an order is in fact only an adjudication of the disputes as to the entitlement. Several further steps remain necessary before the title passes."
20. The question that was fiercely argued before us, but which does not seem material now, may, however, be noticed. It was urged with vehemance by the appellants that P. T. Os. are not issued in case of transfers of big mansions and therefore, the letter dated 24-8-60 (Exh. A/I) and the letter dated 14-10-65 (Exh. A/2) can be treated as equivalent to a P. T. 0. The view of the learned Single Judge was to the contrary. He considered that P. T. Os. in connection with the transfer of big mansions can be issued. Reliance for this view was placed on Memo. No, 3808/Comp-Reh/59 dated 19-11-59 printed at page 55 of the Settlement Manual, Law and Procedure (1st Edition) and also at page 564 of the second edition. In my humble opinion the memorandum cited in support of this view by the learned Single Judge is not really relevant. In the first place, as its subject shows, it relates to Settlement Scheme No, I. In the second place, it provides for issuance of P. T. Os." in all cases where any property is transferred to a "claimant" whereas big mansions can be transferred to non-claimants and locals as well. Furthermore, according to the above-mentioned Memo. P. T.
Os. are to be utilised only in the case of those claimants who have availed themselves of the benefit of deferred payment in full or in part adjustment of the transfer price of the property and that the P. T. 0. should be issued only after the entitlement of the claimant concerned to the transfer of the property has been determined and the transfer price of the property has neither been fully adjusted against the amount of the deferred payment admissible to him or the first instalment recoverable from him has been paid by him. In the present case, therefore, where the transfer price was required to be paid in lump sum and the benefit of deferred payment was not allowed the question of issuance of a P. T. 0. did not at all arise. This finding, however, is of no avail to the appellants because the document Exh. A/1 and Exh. A/2 cannot be equated either with a P. T.
O. or a P. T. D., nor has any provisions of law been shown under which they can be so treated. For the reasons already mentioned a person can be regarded as a "transferee" if he is entitled to hold or enjoy the property and all the rights, title and interests appurtenant thereto transferred to him or some specific rights and interests are expressly transferred to him under any provision of the Act or of a scheme made thereunder or of any rule.
21.I should not, however, be understood as having upheld the contention of the appellants that as P. T. Os. are not expressly mentioned under Scheme No, III they are not used in the case of transfers of big mansions. Paragraph 19(b) of Settlement Scheme No, III itself provides that where payment of the price has been deferred either wholly or in part, the property will be provisionally transferred to the purchaser ; and according to para. 20(b) where a property is transferred provisionally proprietary rights will not vest in the transferee but he will be permitted to lease out the property or to mortgage; it or make additions and alterations in it on such conditions as may be prescribed by the Chief Settlement Commissioner. A reference to the pro forma of the P. T. 0. shows that it contains exactly the above-entioned provisions. Thus were a big mansion is transferred provisionally there appears to be no bar to the issuance of a P. T. O. It is also not correct that the department has not been utilising P. T. Os. in the matter of transfer of big mansions. I find that in two Full Bench judgments of this Court, relating to the question whether the occupants of big mansions can avail of the safeguards contained in section 30 of the Act, namely, Bank of Bahawalpur Ltd. v. Chief Settlement and Rehabilitation Commissioner and Dr. Cowas C. Mehta v.
Additional Settlement and Rehabilitation Commissioner etc. , P. T. Os. had in fact been issued to the transferees of the big mansions in both cases. It is only on account of the terms on which the big mansion in question has been ordered to be transferred to the appellants that the question of issuance of a P. T. 0. in their favour does not arise.
22.The result of this discussion is that the appellants can't deal with the occupants of the property as their statutory tenants, if they can show that the property stood permanently transferred in their favour by 8-11-65, when the notice under section 30 of the Act was issued to the respondent.
23. I would, therefore, uphold the order of remand of the H. Malik case to the Rent Controller but for the limited purposes of .allowing the parties to lead evidence on the question of the date of payment of the full price of the property. If this was made after 30th May 1961, the learned Rent Controller should also allow evidence on the question whether the settlement fees has been paid and the requisite entry in the register mentioned in rule 3 of the permanent transfer rules duly made before the date of issuance of the notice under section 30, namely, 8-11-65 because the relationship of landlord and tenant between the parties shall be deemed to have come into existence only if the property stood permanently transferred in favour of the appellant before the said date.
24. I am also in respectful agreement with the finding of the learned Single Judge that the order of the Rent Controller directing the deposit of rent beyond the period of three years' was in excess of his jurisdiction, in view of the dictum of their Lordships of the Supreme Court in Ashfaq-ur-Rehman v. Ch. Muhammad Afzal .
25.The argument of the appellants that they were prevented from prosecuting their application before the Rent Controller owing to the stay orders granted by this Court, in connection with the writ petitions filed by certain parties to challenge the validity of the orders of transfer passed in their favour and, therefore, the time during which the proceedings remained suspended on account of this Court's orders should be excluded under section 15 of the Limitation Act, has no force. In fact the said provision of law has no application to the present proceedings as it only deals with the question of suits or applications for execution of decrees and not to proceedings of the present kind.
26.I may lastly mention that the finding of the learned Single Judge on the question of the competency of an appeal against the order of deposit under section 13(6) of the Rent Restriction Ordinance was not seriously questioned before us. The learned Single Judge in the course of his judgment has elaborately discussed this point and has rightly held that an order under section 13(6) of the Rent Restriction Ordinance being appealable, under section 15 of the Ordinance, the findings which constitute the substratum of such an order arc liable to be scrutinised in the course of the appeal proceedings.
26.The upshot of this discussion is that the appeal succeeds to the extent that the validity of the3 4 5 order dated 24-8-60 (Exh. A/1) whereby it was decided to transfer the property in question in favour of the appellants does not require further scrutiny. However, the said order does not make the appellants either the "transferees" or " provisional transferees" of the property so as to enable them to deal with the occupants of the property as their statutory tenants. I would accordingly uphold the order passed by the learned Single Judge, remanding the case back to the learned Rent Controller, subject to the modification mentioned in para. 23 above. As the appeal succeeds in part, I would leave the parties to bear their own costs.
ANWAR-UL-HAQ, J.--I agree. PLD 1968 SC 230 PLD 1963 Lab. 72 PLD 1966 Lah. 515 PLD 1963 Kar. 938 PLD 1968 SC 230