' This second Appeal has been filed by the appellant/tenant against the order dated 30th June, 1971, passed by the Rent Controller in Rent Case No, 63/68 filed by deceased Respondent No, 1 Waliullah against the appellant on the ground of default and personal use. By the said order dated 30th June, 1971, the ejectment application was granted on the ground of default in the payment of rent but the ground relating to personal use was not accepted by the Rent Controller, the appellant/tenant filed First, Appeal No, 70/1971 which was dismissed by the learned District Judge Larkana vide his order dated 5th February, 1972, which order is also impugned by the present Second Appeal.
2. The point urged before me by Mr. Mohammad Ashraf, learned counsel for the appellant, is that the appellant was a statutory tenant of the premises and as he was in occupation of the same from a date much prior to December, 1958, he was entitled to be served with a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. It is an admitted position that no notice under section 30 was served. There is a concurrent finding of fact by the Rent Controller as well as the learned District Judge that there was no evidence before the Rent Controller that the appellant was in occupation of the premises from a date prior to December, 1958, and that he did not produce any documentary evidence to that effect and on the contrary there were three tent agreements admittedly entered into between the appellant and deceased respondent No, 1 all of which were signed much after December, 1958. It was on the basis of this state of record that the Rent Controller held that the appellant was not a statutory tenant and, therefore, not entitled to a notice under section 30. This finding was confirmed by the learned District Judge, Larkana. It was admitted by learned counsel for the appellant that except for the word of the appellant that he. Was in occupation of the premises from a period prior to December, 1958, no other evidence is available on the record in his favour. In th face of this position. On record it is not possible to disturb or interfere with the concurrent findings of facts arrived at by the two Tribunals below.
3. It may be noticed here that Mr. Abdul Fattah Memon, learned counsel for the legal representatives of deceased Respondent No, 2, had contended that during the proceedings before the Rent Controller respondent No, 2 had applied for being joined as a party and by consent of Respondent No, 1 he was joined as an opponent in the rent proceedings. The said application had been made on the ground that the deceased Respondent No, 2 was a non-evacuee and he was the owner of the property in question. It was further pointed out by the learned counsel that the last order of the Custodian authorities is in favour of respondent No, 2 and confirmation proceedings before the learned Custodian are pending and the same have not yet been finalized on account of service not being effected on the legal representatives of Respondent No, 1 who had claimed the property as transferee from the Settlement Department. It was further pointed out by the learned counsel for the legal representatives of Respondent No, 2 that by an ex parte order the name of deceased Respondent No, 2 was struck off from the proceedings before the Rent Controller and in the First Appeal before the learned District Judge, Larkana, Respondent No, 2 was not made a party.
The precise contention of Mr. Abdul Fattah Memon is that Respondent No, 2 and now his legal representatives are the rightful owner of the property in dispute and they are, therefore, entitled to get possession of the same. It was further pointed out by Mr. Memon that in the present II Appeal the appellant had made the legal representatives of Respondent No, 2 as a party and an application had been moved on behalf of the Respondent No, I that their names should be struck off but the same was dismissed. Mr. Anwar Shere, however, pointed out that the said application moved on behalf of the Respondent No, 1 was dismissed in default on 23rd September, 1974.
4. As the appellant has not made out any case for interference with the impugned orders of the Rent Controller and the learned District Judge, Larkana, the present II Appeal is dismissed with no order as to costs. However, the appellant is granted time till 31st March, 1982 to vacate the premises.
5. As observed earlier, proceedings are pending before the learned custodian regarding the final status of the property in question and the proceedings could not be finalised on account of service not being affected on legal representatives of respondent No, 2 as informed by Mr. Abdul Fattah Memon. Mr. Muhammad Abid Siddiqui son of Respondent No, 1 is present in person in this Court today and he states that his mother Mst. Hamida Khatoon expired in 1979, and, apart from the other legal representatives of Respondent No, 1 who are already on record in this appeal, she left behind no other heirs. It is further stated by Mr. Muhammad Abid Siddiqui that he is residing now at 496/8.
Azizabad, Karachi, , after retirement and that he is the attorney of all other legal heirs of deceased Master Waliullah and Mst. Hamida Khatoon, namely Mst. Shakila Khatoon, Mst. Laiqa Khatoon Mst.
Baddarunnisa, Mst. Husna Siddiqui and Mst. Farhat Hussain Sididqi (daughters and son of the deceased). Mr. Muhammad Abid Siddiqui further states that apart from the aforesaid person there are no other legal heirs of late Master Waliullah and late Mst. Hameeda Khatoon. He further states that in the Custodian case he will engage Mr. Anwar Shere as the Advocate on his behalf and as attorney on behalf of all other heirs and if notice of the Custodian case is served upon Mr. Anwar Shere Advocate or upon him, he will accept service on behalf of himself and all legal heirs of late Mr. Waliullah and late Mst. Hameeda Khatoon.
6. The other question which requires consideration is that in case the learned custodian finally confirms that deceased Respondent No, 2 was a non-evacuee and the property in question belonged to him the possession of the property in question should not remain with the legal representatives of Respondent No, 1 as then Master Waliullah and now his legal representatives would no longer remain the owners of the property in question. In the circumstances learned counsel appearing on behalf of the legal representatives of Respondent No, 1 was asked whether his clients are ready to give any undertaking. In response an undertaking in writing has been given by Mr. Muhammad Abid Siddiqui son of deceased Respondent No, 1 on his behalf and as attorney of all the other legal representatives to the following effect :- "UNDERTAKING"
' I Muhammad Abid Siddiqui son of (late) Mr. Waliullah on my behalf and as Attorney of other L. Rs, do hereby give undertaking that after receiving the possession of the house in dispute that is House No, 7/B Old Badah Distt. Larkana shall not sell or mortgage or part with the possession of the said house till the final decision of the Custodian declaring the above property to be of Mr. Lakhimal and further undertake that I shall hand over the vacant possession of the said property to him.
However this undertaking is subject to the condition that the above L. Rs, are made parties to the case, if any filed by Mr. Lakhimal regarding above property.
(Sd.)
Karachi. (Muhammad Abid Siddiqui)
Dated 1st December, 1981. Respondent."
' A copy of the above undertaking has been given by Mr. Anwar Shere to Mr. Fattah Memon and in my view this undertaking protects the interests of the legal representatives of both the Respondents. The above undertaking is accepted and it is made clear that a breach of this undertaking will be treated as a breach of injuction of this Court.