' This Revision Petition has been filed by the applicant against the judgment and decree passed on 6th March, 1974 in Civil Appeal No,43/1971, whereby the learned District Judge, Sanghar, dismissed the said appeal and thus confirmed the decree passed on 31st August, 1967 in Suit No,3 of 1967 by the learned Civil Judge, Khipro.
' The brief facts of the case are that the plaintiff is the owner of plot bearing city Survey No,331, Block No,57, measuring 4260 Square feet, situated in Khipro Town (hereinafter referred to as the said property). The abovementioned property was transferred to the plaintiff as a plot, for which P.T.O. dated 11th March, 1965 (Exh.16) was issued to him and subsequently P.T.D. dated 31st March, 1965 (Exh. 17) was also issued to him. Thus being the owner of the said property, the plaintiff served notice (Exh.19) dated 11th June, 1966 upon the applicant above named and one Chatto informing them that the said property has been permanently transferred to him and that the said plot is in their joint possession and, therefore, they are jointly and severally liable to pay to him rent for its use and occupation. The rent was claimed from the date of issuance of P.T.O.(Exh.16) and they were also warned that in case they do not pay the rent. They should vacate the same and deliver its vacant possession to the plaintiff after 15 days of the receipt of the said notice. In the said notice it was stated that if the compliance was not made the plaintiff would file legal proceedings against them in due course of law. As no reply was received from the said occupants, the plaintiff filed Suit No,3/1967 against the occupants, i.e, Chatto and Mst. Faqir Shah Bano in the Court of the Civil Judge at Khipro. In the said suit after pleading his title and the transfer based upon P.T.D. (Exh.16) and P.T.D. (Exh.17) and after referring to the notice dated 11th June, 1966 called upon the defendants to pay rent for use and occupation of the abovementioned plot or to hand over its vacant possession. It was pleased that the defendants are in unauthorized possession of the plot and are liable to be ejected and possession delivered to the plaintiff it was his case that in spite of the said notice, the defendants neither paid any rent to him for its use and occupation nor handed over vacant possession of the plot.
' The suit was contested by both the defendants, who pleaded that they were not in unauthorized possession of the plot in dispute but that they were in possession of the said plot as the said property was a gift, awarded to Mst. Faqir Shah Bano (the present applicant) by one Sohag in 1956.
It was accordingly contended that the suit was liable to be dismissed. On the pleadings of the parties following issues were framed:- "(1) Whether the plaintiff is the owner of the plot in dispute?
(2) Whether the defendants are defaulters for not paying the rent for the use and occupation of Suit property?
(3) Whether the defendants are trespassers over the suit property, if so, what is its effect?
(4) Whether the notice under section 30, D.P. (C & R) Act has been served on the defendants?
(5) Whether the defendant No,12 has purchased the plot in dispute?
(6) Whether the defendants are in possession of the plot in dispute for period of more than 40 years?
(7) Relief?"
2. The learned trial court after recording the evidence and hearing the Advocates for the parties held that the plot in dispute was an evacuee property and rightly transferred in favour of the plaintiff by the Settlement Authorities. It was further held that the defendants failed to prove their title set up by them in the written-statement and that they were trespassers over the suit property.
It was further held that notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was not required as the property in dispute is a plot and does not attract the provisions of section 30 of the said Act. On the above findings (amongst others) under the issues framed in the suit, the learned trial Court passed a decree for possession in favour of the plaintiff against both the defendants but with no order as to costs.
' Against the above judgment and decree an appeal was filed by both the defendants in the Court of District Judge, Tharparkar at Mirpurkhas, which was subsequently transferred to the court of District Judge at Songhar and was registered there as Civil Appeal 'No,43/1971. It may be mentioned that in the meantime Chotto died and the appeal against him abated and his name was struck off by the order of the learned lower Appellate Court passed on 15th May, 1971.
3. The learned lower Appellate Court by judgment, and decree passed on 6th March, 1974, upheld the findings given by the learned trial Court and dismissed the appeal.
4. Against the above judgments and decrees, passed by the two courts below, this present petition under section 115 of Civil Procedure Code has been filed by the applicant/defendant invoking the revision jurisdiction of this court.
5. I have heard the learned Advocates for the parties. Mr.Muhammad All Shaikh, the learned counsel for the petitioner in his arguments raised the only contention that the respondent having given notice dated 11th June, 1966 (Exh.19) to Chotto (who died during the pendency of the appeal before the learned lower Appellate Court) and to Mst. Faqir Shahar Bano under section 30 of the Displaced Persons (Compensa tion & Rehabilitation) Act, 1958 intimating them about the transfer of the property to him and demanding rent at the rate of Rs,,30 per month for the use and occupation of the said plot from the date of issue of i.e, 11th March, 1965, cannot now in the proceedings in the Civil Courts, claim possession of the said property from the occupant/applicant. According to the learned counsel, the property in question though was transferred as a plot to the respondent but thereon existed structure and thus being not an open plot, the applicant would be deemed to be a tenant in respect of a house and thus she is entitled to claim protection under the said Rented Premises Ordinance of 1979. This argument of the learned counsel, however, cannot succeed as the perusal of the record shows that the applicant, according to her own case, in the written statement had set up a title to the property in question. It was not the case of the applicant or the then co- defendant Chotto that they or either of them were in occupation of the plot/the property as tenants of the custodian. Both the Courts below have found that the defendants had failed to prove their title to the plot in dispute and that they are trespassers over the said property and thus liable to be dispossessed as such.
6. The plea raised before this Court for the first time that possession of the applicant is as a tenant and that her possession is protected under the Rent Law was neither taken before the trial Court in the pleadings or evidence nor before the learned lower Appellate Court and as such the same cannot be allowed to be raised for the first time at this late stage.
Furthermore, in view of the findings of the two courts (below that the applicant and Chotto (since deceased) both were trespassers on the property in dispute, the possession of the applicant, a trespasser would not be protected under section 30 of the Displaced Persons (Compensation & Rehabilitation) 'Act, 1958 or under the Sind Rented Premises Ordinance of 1979. I am fortified in the view taken as above by the case reported as Suleman v. Qazi Muhammad Mian and another 1982.
CLC 1071 wherein on the findings concurrently given by the two courts below that the occupant was only a licensee and not in possession of the premises in his own right, it was held by me after considering the law on the subject that section 30 of the D.P. Act and the notification dated 13th October, 1969 issued under the D.P. Act of 1958 did not intend to create any tenancy right or give protection to a licensee or unauthorised occupants of premises.
' Reference may also be usefully made to the case of Ayub and C another v. Masjid-e-Nauman 1973 SCMR 604, wherein the Honorable Supreme Court held that section 30 applies only to an evacuee house or shop, and not to a building site. For this reasons as well, the property having been transferred to the respondent as a plot (building site) no protection under section 30 of the D.P.Act of 1958 as a tenant could be claimed by the applicant.
7. Thus, the only contentions raised by the learned counsel for the applicant as above have not succeeded.
8. No other point was urged in support of the petition by the learned counsel for the applicant.
Mr.Muhammad Ali Shaikh lastly submitted that his client is prepared to pay rent to the respondent.
Mr.Alvi, the learned counsel for the respondent, however, in the absence of any instructions from his client, showed his inability to accept the offer thus made. Mr.Alvi rightly submitted that the applicant may approach the respondent he is not in position to make any statement.
9. The upshot of the above discussion is that this petition is without any merits and is accordingly dismissed.