The petitioner in this Constitutional Petition filed an eviction petition under section 13 of the Rent Restriction Ordinance, 1959, for eviction of respondent No. 1 describing the rented premises as House No. 910/246-D, on grounds of default, personal need and reconstruction. Respondent No. 1 (tenant) asserted in the reply filed before the Rent Controller that the property was transferred by the Settlement Department through auction as a plot and as such relationship of landlord and tenant does not exist between the parties and that he is in possession of the plot in his capacity as owner of the malba (superstructure). Necessary issues were framed and the parties produced their respective evidence before the Rent Controller. In evidence A. W. 1 stated inter alia that before transfer Faqir Muhammad respondent was in possession of the house in dispute. It was katcha a room which had now fallen down and the respondent had removed the malba of the said room about 8/9 years ago. The petitioner, Muhammad Akbar, in his statement, however, admitted that the premises in question were transferred to him as a plot by the Settlement Department and that P. T. D. Had also been issued in his favour. Faqir Muhammad son of Ali Muhammad appeared as R.
W. 1 on behalf of the respondent and deposed that Faqir Muhammad respondent is occupying the plot in dispute for the last 25/30 years as owner and, that there was a dispute between the parties in respect of the ownership of the plot. In cross-examination he, however, admitted that due to rains the two rooms had fallen down and now the plot is lying vacant. Mst. Umri, were of Faqir Muhammad respondent appeared as his Special Attorney and in her statement she deposed that the respondent is occupying 'this place' for the last 15/25 years as an owner and not in the capacity of a tenant. She in cross-examination admitted that P. T. D. Was issued by the Settlement Department in respect of the plot in favour of the petitioner. It was also admitted that no rent was ever paid to the petitioner. The learned Rent Controller holding that the relationship of landlord and tenant subsisted between he parties and that the provisions of the Rent Restriction Ordinance were attracted, ordered eviction of the respondent.
2. This eviction order was challenged by the respondent in appeal before the learned Additional District Judge, Faisalabad, who vide his judgment dated 11-2-1981 accepted the appeal and set aside the order of eviction. The learned Appellate Court was of the view that evacuee plots are not covered by subsection (1) of section 30 of Act XXVIII of 1958, hence no statutory relationship of landlord and tenant came into being though Faqir Muhammad respondent was in possession on the plot before the date of its transfer to Muhammad Akbar petitioner.
3. It was now the turn of Muhammad Akbar petitioner to challenge the order of the Additional District Judge, whereby the ejectment petition was dismissed, by filing the present constitutional petition.
4. Learned counsel for the petitioner argued that notwithstanding the fact that the property was transferred as a plot but as it had katcha construc--tion over it at the time of transfer the property is to be treated as residential house for the purpose of section 30 of Act XXVIII of 1958, as well as for the purposes of Urban Rent Restriction Ordinance, 1959. Reliance is placed on Mst. Zainab Bibi v.
Mst. Iqbal Begum (PLD 1974 Lab. 350), Muhammad 1qbal v. Mehraj Din and another (PLD 1976 Lah.
831), Noor Din and another v. Sardar Muhammad (1979 CLC 155) and Wali Muhammad v. Shabbir Ahmed (1980 CLC 835). The view taken in the precedent cases is that a site on which a building, which is not permanent building, is constructed and exists will still be deemed to be a vacant site. If the property is, therefore, transferred by auction under Paragraph 14 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, it would be transferred inclusive of the building on it provided the build--ing is not permanent. The construction over an evacuee property is to be treated as accretion to the property and the person in occupation would be a tenant of the transferee and would be deemed to be in occupation of a house under Ordinance VI of 1959.
S. Learned counsel for the respondent relied on Syed Muhammad Murtaza v. Rehman's etc. (NLR 1980 Lah. 515), and contended that the Rent Controller had no jurisdiction to order eviction from a plot which is used for purposes other than commercial as such a plot does not fall within the definition of the term rented land' as defined by section 2(f) of the Rent Restriction Ordinance. In the precedent case it was held that the evidence led by the appellant proved that the construction was of post transfer period. Even in the ejectment petition in the precedent case it was stated that Katcha Kothas and Chhapper over the site were built after issuance of the P. T. D. On the contrary in the instant case the assertion was that before the transfer Katcha Kothas existed on the site but the said construction fell down due to rains thereafter and that now i.e., at the time of recording of the evidence in the year 1980 the disputed premises were lying vacant. It may be noted that the transfer was made in the year 1969, and the application for ejectment was filed on 14-10-1969 and the evidence was recorded in the year 1980. It, therefore, stands established on record that at the time of transfer a well as filing of 'the ejectment petition the premises in dispute were being used as residential premises and as such the provisions of the Rent Restriction Ordinance read with section 30 of the Act XXVIII of 1958, were fully attracted. The learned Additional District Judge while accepting the appeal failed to notice that the application for ejectment as filed sought eviction from the residential premises and not from a plot. The view taken by the learned Appellate Court was thus clearly misconceived and as such the impugned order is not sustainable in law.
6. The net result of the above discussion is that the impugned order dated 11-2-1981 passed by the learned Additional District Judge, Faisalabad is hereby declared as having been passed without lawful authority and as such of no legal effect. In this view of the matter the order of eviction passed by the learned Rent Controller is upheld. There will be no order as to costs.