' These are seven second appeals, namely, S. A. Os. Nos. 79 to 85 of 1976. These were heard together as common questions of fact and law arise in them.
2. The dispute between the parties relates to servant quarters which form part of a bungalow known as 32, Davis Road Lahore. These servant quarters are in the occupation of the appellants.
The bungalow was formerly an evacuee property and was transferred to the predecessors-in- interest of the respondents. On 5th November, 1973 the respondents instituted separate applications for eviction against the appellants before a Rent Controller at Lahore. In these applications it was alleged that the appellants were the tenants of the respondents at a rent of Rs, 10 per month, each and that they had failed to tender rent for the Period from 1st September, 1970 to 31st August, 1973. It was also pleaded that the respondents wanted to demolish the servant quarters and raise new construction at the site. These applications were resisted by the appellants on a number of grounds. On the pleadings of the parties the learned Rent Controller framed identical preliminary issues in all the applications. These issues were :
(1) Whether notice under section 30 of the Displaced Persons (Compensation and Rehabilitation)
Act, 1958 was required to be served upon the respondent ? O.R.
(2) Whether the relationship of landlord and tenant exists between the parties ? O.P.
(3) Whether the description of the property in dispute is correct, if not, to what effect ? O.P.
' The parties led evidence in support of their respective contentions and after considering the same the learned Rent Controller decided all the issues against the appellants. After that, instead of framing issues on merits, the learned Rent Controller directed the eviction of the appellants. In doing so he relied upon two grounds : first, by denying that the relationship of landlord and tenant existed between the parties the appellants had forfeited their tenancy rights, and, second, in their statements during the trial the appellants had admitted that they had not paid any rent after the institution of the ejectment applications. The appellants preferred appeals from the orders of the learned Rent Controller but these were dismissed by the learned Additional District Judge, Lahore.
Now they have come in second appeal to this Court.
3. It is common ground between the parties that before instituting the applications for eviction the respondents had not served any notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act upon the appellants. It is urged on behalf of the appellants that as they were old occupants of the servant quarters their relationship with the transferees, that is, the respondents, was governed by section 30 ibid ; this being so, before the respondents could complain of default in the payment of rent or seek ejectment on the ground of reconstruction it was incumbent upon them to serve notices under the said section upon them. Since this had not been done the applications for eviction did not lie. It may be mentioned that this objection was also raised by the appellants before the learned Rent Controller as well as the learned Additional District Judge but it was rejected on the ground that after the appeal of the Displaced Persons (Compensation and Rehabilitation) Act by the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance XV of 1974, non-compliance with the provisions of section 30 which were entirely of procedural nature was not fatal to the applications.
4. The learned counsel for the appellants argued that the Courts below were in error in holding that with the repeal of Displaced Persons (Compensation and Rehabilitation) Act the transferees of evacuee properties who had received their transfer before the repeal, had been absolved of the duty of sending notices to the statutory tenants. It was submitted that section 30 was not a provision of a procedural nature inasmuch as it created certain substantive rights in favour of the statutory tenants and that its operation was saved by section 6 of the General Clauses Act which stated inter alia that the repeal of an Act would not affect any right, privilege, obligation or liability acquired, created or incurred thereunder.
5. In these appeals it is unnecessary for me to consider the effect of the repeal of the Displaced Persons (Compensation and Rehabilitation) Act on the applications for eviction for I am of the opinion that on the evidence on record the appellants were not entitled to any notice at all under section 30 thereof. It may be mentioned that this section creates the relationship of landlord and tenant between a transferee of an evacuee property and only those of its occupants whose possession is of the nature defined in section 2 (6) of the said Act. In this context I may refer to Ayoob v. Masjid-eNoman (1) wherein Salahuddin Ahmed, J. Observed : "The 'possession' under section 30 of the Act is 'possession' within the meaning of section 2 (6) of the Act, which says" 'possession' means possession obtained in pursuance of an order passed on or before the 20th day of December, 1958 by Rehabilitation Authority or any other officer authorised or permitted by the Central or Provincial Governments. Provided further that the Central Government may, by order in writing direct that a class or classes of such persons as have not obtained possession aforesaid shall subject to such conditions as may be specified in the order, be deemed to be in possession for the purpose of this Act." The appellants are, there, fore, not in possession of the premises in dispute within the meaning of section 30 read with section 2 (6) of the Act."
' A Similar view was expressed by Qadeeruddin Ahmad, J. In Muhammad Tufail v. Barkat Ali (2) when his Lordship held : "The first contention that mere occupation of a premises makes the occupant a tenant of the transferee of the premises under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 is not correct, because the tenancy that is contemplated by the section is on the terms and conditions of the tenancy of the previous occupation. If, for instance, the previous occupant was a trespasser, he does not become a tenant merely because the premises is transferred by the Settlement Department."
(1) 1973 SCM R 604 (2) PLD 1967 Kar. 151
6. Section 2 (6) of the Displaced Persons (Compensation and Rehabilitation) Act defines 'possession' for the purpose of the Act in the following manner : "Possession means possession obtained in pursuance of an order passed on or before the 20th day of December, 1958 by Rehabilitation Authority or any other Officer authorised or permitted by the Central or Provincial Governments : ' Provided that if question arises whether an officer was authorised or permitted the decision of the Chief Settlement Commissioner in that behalf shall be final : ' Provided further that the Central Government may, by order in writing direct that a class or classes of such persons as have not obtained possession as aforesaid shall subject to such conditions as may be specified in the order, be deemed to be in possession for the purpose of this Act."
7. It was not the case of the appellants that they had been occupying the servant quarters in dispute in pursuance of any order of allotment issued by a Rehabilitation Authority or any officer authorised by the Central Government or Provincial Government in this regard. No doubt on 13th October, 1959 the Central Government acting under the second proviso to the definition quoted above did issue a notification whereby a certain class of persons who had occupied evacuee property without any valid orders of allotment were also deemed to be in possession for the purpose of the Act, but before any one could take advantage of this notification he had to show inter alia that he was either a claimant or that he had cleared all the arrears of rent payable on account of the property held by him. The appellants did not allege that they were claimants. They did say that they had applied for the transfer of the servant quarters but they did not specify the basis upon which they had sought the transfer. It cannot therefore, be said that they were claimants within the meaning of the notification. In their cross-examination they admitted that they had never paid any rent to the Rehabilitation Department. On the contrary their case was that they had throughout been paying rent to the respondents. In the circumstances they could not be treated to be in possession within the meaning of section 30 of the Act. I am, therefore, of the view that they were not entitled to any notice under that section. Issue No, 1 was therefore, rightly decided by the Courts below.
8. There is ample evidence on the record in support of the concurrent finding of the Courts below that the relationship of landlord and tenant existed between the parties. Some of the witnesses produced by the appellants admitted that the appellants had been paying rent regularly to the respondents. This was the position of the appellants themselves in their statements during the course of the trial. Sometimes prior to the institution c of the applications the appellants had jointly filed a suit for a mandatory injunction against the respondents to forbid the latter from ejecting them in an unlawful manner. In the plaint filed in that suit the appellants had admitted their status as tenants under the respondents. I have, therefore, no hesitation in holding that the appellants were in fact tenants under the respondents.
9. The preliminary issue No, 3 was not pressed by the appellants before the learned Additional District Judge and it has not been reopened before me also.
10. I am unable to support the view of the learned Rent Controller and the Additional District Judge that by denying the relationship of landlord and tenant between them and the respondents, the appellants had become liable to be straightaway evicted from the servant quarters. It is true that there is an equitable principle to the effect that where a tenant denies his landlord's title he forfeits his tenancy. But this principle can be D invoked only in such cases where the denial is in clear or unmistakable terms. In these cases the position of the appellants was not that the respondents were not the transferees of the servant quarters or that these were owned by a third person, all that they had stated was that the relationship 'of landlord and tenant did not exist between the parties because the respondents had not served any notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act upon them. This plea cannot be equated with the plea of denial of the title of the landlord. Apart from that it is a moot point whether a Rent Controller can base an order of eviction on grounds other than those specified in section 13 of the West Pakistan Urban Rent Restriction Ordinance. It is also doubtful whether the learned Rent Controller could himself direct the eviction of the appellants on the ground of denial of the landlord's title for it was laid down in Mahraja of Jeypore v. Rakmani (1) that denial of the landlord's title in a suit does not work forfeiture of which advantage can be taken in that suit because the forfeiture ought to have accrued before the suit was instituted. I am, therefore, of the opinion that this ground was not available to the learned Rent Controller and the learned Additional District Judge for directing the eviction of the appellants.
11. As already pointed out the learned Rent Controller ordered the eviction of the appellants entirely on his findings on the preliminary issues. In this regard he relied upon the admissions of the appellants that they had not paid any rent to the respondents after the institution of the applications and held that this was an admission of default. I do not think that the learned Rent Controller was justified in doing so. The respondents had sought the ejectment of the appellants on the ground that they had not paid the rent for the period from 1st September, 1970 to 31st August, 1973. This was the cause of action upon which they had come before the learned Rent Controller.
The learned Rent Controller could not substitute a new cause of action not pleaded by the respondents themselves. It is also to be noticed that on the preliminary issues the appellants had led evidence to show that they had paid the entire rent prior to the institution of the applications. In the circumstances the order of the learned Rent Controller which was affirmed by the learned Additional District 'Judge that the appellants were defaulters in the payment of the rent was entirely unjustified.
12. For the reasons stated above I set aside the orders of ejectment passed against the appellants and direct that the learned Rent Controller should decide the applications afresh after framing proper issues in accordance with the pleadings of the parties. The costs of these appeals shall abide the final event.
(1) A I R1919 P C 1