' This second appeal is directed against the judgments and decrees of Additional District Judge, Khairpur dated 14-11-1975 in Civil Appeals No,4/72 and 16/73 whereby the judgment and decree of the Civil Judge 3rd Class, Khairpur dated 30-11-1972 in Suit No,14/72 was set aside and the suit of the respondent Naimatullah was decreed.
2. The relevant facts are that Naimatullah filed civil suit against All Muhammad and Ghulam Nabi for declaration and recovery of possession and mesne profits for House No,I.A.436/G.3 situated at Khairpur. The allegations in the plaint were that Naimatullah was a transferee of the said house from the Settlement Department whereas Ali Muhammad was a statutory tenant of the same, but later on All Muhammad was evicted by Rent Controller in pursuance of ejectment proceedings filed against him by one Moula Bux, who was an assignee/nominee from Naimatullah. After ejectment of Ali Muhammad the house was given on lease to one Mitho. All Muhammad had tried to get allotment and transfer of the said house from the Settlement Authorities, but eventually Naimatullah was declared as the final transferee of the house. The defendant Ali Muhammad had trespassed into the said house and continued to be in illegal possession. The defendant All Muhammad had denied the allegation and had submitted that the plaintiff had never filed NCH Form for the house in dispute, but had filed form for House No,I.A .436/G-4 and that Settlement Authorities had later on transferred the house to him and that suit was not maintainable. The Court framed various issues in respect of non-maintainability of the suit and whether the house had been transferred to the plaintiff and whether the defendant had taken forcible possession of the house. The Civil Judge held that the suit was not maintainable as the plaintiff could only file and application for ejectment and not a suit for possession. It was also held that the Court had no jurisdiction to try the suit and that since Mitho had not been joined, therefore, suit was not maintainable. It was further held that section 30 of the Displaced Persons Act has given protection to the tenant. Surprisingly, it was also held by the Civil Judge that the house had not been permanently transferred to the plaintiff and finally it was held that tenant had not taken forcible possession of the house.
3. In appeal the Additional District Judge held that P.T.D. had been issued by the Settlement Authorities in favour of the respondent Naimatullah and Rent Controller had given a finding that Naimatullah was a landlord in respect of the house in dispute and All Muhammad was the tenant of Naimatullah and he had been ejected from the house in dispute in pursuance of the said judgment and that Mitho had handed over the possession of the house to the appellant All Muhammad and hence the possession of Ali Muhammad could not be held to be legal as Ali Muhammad knew that the house is property of Naimatullah. It was further held that Ali Muhammad had obtained possession of the house from Mitho on misrepresentation or fraud by showing himself as the owner of the house. It was further held that PTD to Naimatullah had been finally issued after contest by the Settlement Authorities and consequently the suit was held to be maintainable and hence the judgment and decree of Civil Judge was set aside and the suit was decreed and order for appointment of Commissioner to determine mesne profit was made.
4. Mr. Dastagir, learned counsel for the appellant submitted that the appellant was in the position of a statutory. tenant as he was in occupation of the house since before 20th of December, 1958 and hence it was only when proceedings under Rent Restriction Ordinance were initiated that he could be evicted from the possession of the house and not a suit for possession. The arguments does not appeal to me at all. The appellant had in fact been treated as a statutory tenant and it was in Rent Controller proceedings initiated by Moula Bux on behalf of Naimatullah that the appellate Court had passed ejectment order on 25-11-1968 in R.C.No,23/66 and the appeal against that order of ejectment Was dismissed on 12th February, 1968 by District Judge, Khairpur.
Consequently the relationship between the appellant and respondent based on statutory tenancy under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 came to an end. The appellant continued to remain out of the possession of the said house for about more than a year. After the ejectment of the appellant one Mitho had been admittedly inducted as a tenant in the said house by the respondent and it is the case of the appellant himself that he secured the possession of the house from Mitho on the basis that he was the transferee of the said house from the Settlement Department. This possession of the appellant which he secured from Mitho on 19-4-1969 under a mis-representation was therefore, quite rightly found to be illegal. In any case the possession of the respondent from 19-4-1969 was not in his capacity as statutory tenant of the premises because that relationship and finally come to an end on 25-11-1968, when the appellant was ejected, or at least on 12-2-1968, when the appeal of the appellant against the order of ejectment was dismissed. The second possession (sic) the appellant from 19-4-1969 was obtained in his capacity as the alleged owner of the house and the same was quite adverse to the respondent and in any case it was not as a tenant of the respondent and hence there was absolutely no relationship of landlord and tenant between the appellant and the respondent on 19- 4-1969 or thereafter. Consequently the suit for possession filed by the respondent was quite in order and should have been decreed because the possession of the appellant was illegal and secured from a tenant without consent of the landlord and in fact the possession of the appellant was in pursuance of his alleged right in respect of the said house as the owner of the same, therefore, there was no question of his having again became the tenant of respondent in respect of the said house. Consequently I am of the view that the judgment and decree of Additional District Judge is unexceptionable.
5. Incidentally I may mention that the Settlement Authorities have finally held after contest between the parties and after hearing them that House No,I.A/436/G-3 stood transferred to Naimatullah, who had transferred it to Moula Bux and the Settlement Authorities have cancelled the transfer of the said house from the name of All Muhammad. Consequently this second appeal is found to be without merit and is hereby dismissed and, therefore, it was dismissed by a short order on 9-10-1984 after hearing the learned counsels.