FAROOQ ALI CHANNA , J.---The appellant has filed this First Rent Appeal against the order dated 6- 6-2008, passed by Additional Controller of Rents, Faisal Cantt. Karachi, dismissing the ejectment application bearing Rent Case No,3 of 2012 (Abdul Khalid v. Ghulam Saghir), observing that the appellant had not put the respondent in possession of Shop No,8, situated in Cantt: Bazar, Drigh Road, Karachi as tenant, neither the respondent has paid rent to appellant, nor there is any tenancy agreement, the respondent was in possession of said shop at the time of issuance of transfer order of shop by Board of Revenue (Evacuee Property) Branch in favour of appellant, as such the relationship of landlord and tenant does not exist between them, in these circumstances proper course of action for the appellant would be to obtain the possession of the shop by filing civil suit.
2. The above findings of Rent Controller finds support from a case reported as Syed Aij az Hussain v.
Azimullah (1984 CLC 2908) relied upon by learned counsel for the respondent, wherein it has been held as under:-- "There is no evidence in writing to show that relationship of landlord and tenant existed between the parties. There is neither any tenancy agreement nor is there any evidence in writing about the payment of rent by the appellant to the respondent in the shape of money-order, counterfoil of any receipt, any letter from the appellant, any notice by the respondent to the appellant or any other document. There is only the testimony of the respondent and the witness, Juma Shah. The oral testimony of the appellant in this case is not sufficient in law to base a finding that the relationship of the landlord and tenant existed between the parties."
3. Learned counsel for the appellant while controverting the above aspect of the case has referred to section 30 of Displaced Persons (Compensation and Rehabilitation) Act, 1958 (referred to hereinafter as Act, 1958), which reads as under: "30. Protection of certain occupants. ---(1) Where any local or displaced person is in possession of any evacuee house or shop which is transferred to any other person under the provisions of this Act then, notwithstanding anything contained in any other law, such person shall, without prejudice to any other right which he may have in that house or shop, be deemed to be a tenant of the transferee, on the same terms and conditions as to payment of rent or otherwise on which he held the house or shop immediately before the transfer."
' Learned counsel has contended that in view of the above referred provisions of law the respondent became statutory tenant of the appellant who also served a notice upon the respondent within the stipulated time. In support of his contention learned counsel has also relied upon a case of Mst. Kaniz Fatima and 8 others v. Mst. Zubaida Khatoon reported as (1995 M LD 870).
The above case with profound respect is not applicable to the instant case as in the above cited case the occupier was paying rent to the custodian department before it was transferred to landlord, whereas in the instant case the respondent was not paying rent to any authority. Learned counsel has further contended that admittedly the respondent is not the owner of subject shop, occupying the same without any authority, in such circumstances it is settled law that the occupier will be deemed to be the tenant of owner of property, on this point he has relied upon a case reported as Fakhruddin Khan Syed and others v. Mst. Surriya Sultana and others (2005 YLR 349), wherein it has been held as under:- "where no rent agreement existed between the parties, law would assume that when a person, who was not owner of premises, occupied any portion thereof and had not setup a title which was adverse to owner of premises, then such a person by fiction of law would become a tenant of owner/landlord.
4. Conversely, learned counsel for the respondent has contended that mere transfer of property under P.T.D, in terms of section 30 of the Act, 1958 shall not create/establish relationship of landlord and tenant; unless it is proved that the occupier of property had been the tenant of custodian department before issuance of PTD. Learned counsel has relied upon a case reported as Haji Abdul Sattar v. Additional District Judge, Rawalpindi and others (1984 SCMR 925), which reads as under:-- "The property had been transferred under the PTD as an industrial concern and in the absence of a declaration given by the Custodian, as required under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, in regard to the existence of a tenancy right from a date prior to 14-8-1947, no statutory tenancy could be created merely by the issuance of the PTD. The view taken by the Additional District Judge as to the creation of a statutory tenancy by the PTD, was therefore, legally not tenable and had rightly been not expected by the High Court."
' Learned counsel has further contended that since there does not exist the relationship, of landlord and tenant between the parties, the Rent Controller Faisal Cantt. Karachi has no jurisdiction to pass eviction order in terms of section 17 of Cantonments Rent Restriction Act, 1963, as such he has dismissed the rent, application filed by the appellant correctly and judiciously.
5. Besides the above settled proposition of law regarding the status of occupier of premises as tenant or otherwise in terms of section 30 of the Act, 1958, the appellant in his ejectment application has stated that he is the owner of Property bearing No,GLRS-26/14,VIII-F11/8, (G-2) measuring about 100 Sq. Yards KNOWN AS SHOP No,8, which manifest that the appellant himself had no certainty to identify the premises transferred in his favour. Learned counsel for the respondent has contended that the property allotted to the appellant was not Shop No,8 and it might be some other property. His contention was that Shop No,8 was allotted by the Cantonment Board to one Muhammad Khan, the respondent has purchased possessory rights of said shop from Muhammad Khan and paying all taxes since 1985, lastly he has paid utility charges amounting to Rs,2038 on 5-12-2012 to Cantonment Board Faisal, in support of his contention, he has produced Photostat copies of receipts. In these circumstances the proper course of action for appellant would be to seek declaration of Shop No,8 to be the same property allotted to the appellant and its possession through competent civil court. The impugned judgment is based upon appropriate appreciation of law, it does not suffer from any infirmity or illegality requiring the interference of this Court.
' First Rent Appeal is dismissed.