' This revision application has arisen in the following circumstances :- ' Property bearing survey No, 252 situated in village Wagan Taluka Warah was transferred under the Settlement Scheme to the respondent in this revision vide P. T. D., dated 3rd May, 1968. It was in possession of Muhammad Khan the applicant in this revision. The respondent by a notice, dated 23rd January, 1970, which according to the respondent was served on the appellant on 26th February, 1970 called upon him to pay rents of the premises at the rate of Rs, 4 per month as the property had been purchased to him from the Settlement Department. This notice is Exh. 60 in the original record. In this notice the applicant was also requested to pay the arrears which remained outstanding against him at the time of the notice. As no rents were paid the respondents filed a suit being suit No, 69/73 praying for possession of the house and also a sum of Rs, 144 being an amount for use and occupation of the house in question. The defendant entered appearance and filed the written statement. The main plea raised in written statement was in para. 4 of the written statement which is as follows:- "4. As far para. 4 of the plaint, as submitted above the plaintiff is put to prove that the house transferred to her is the same which is in occupation of this defendant. If the house in occupation of this defendant is proved to be the same, then it is submitted that this house was agreed to be sold to this defendant by its previous owner for an amount of Rs, 4,500. This defendant had moved an application before the Deputy Custodian (Evacuee Property), Larkana who by his order, dated 7th June, 1952 created a charge of Rs, 4.500 over this house. Therefore it is submitted that in that case this defendant in addition to the right of statutory tenancy in the said house is entitled to all amount of Rs, 4,500 (charge created by Deputy Custodian). It is denied that the applicant served any notice dated. The question of payment of rent therefore did not arise."
' In para. 9 the plea of notice was also raised in the following words :- "9. That the suit is bad for want of statutory notice under section 30, Displaced Persons Act and that of section 106 of the Transfer of Property Act."
' On these pleadings the learned Civil Judge struck 11 issues on 15th January, 1978 which are as follows :- "(1) Whether plaintiff has purchased the suit property from the Settlement Department and P. T. D.
Has been issued in her favour ?
(2) Whether plaintiff is owner of the suit property and is entitled to realize its rent ?
(3) Whether the house in occupation of the defendant is the house purchased by the plaintiff from the Settlement Department ?
(4) Whether plaintiff served the notice dated 23rd January, 1979 upon defendant for paying the rent to the plaintiff ?
(5) Whether defendant has damaged the suit house and has impaired the same by removing its doors, windows and the walls and has diminished its utility ?
(6) Whether defendant is liable to be ejected from the suit property ?
(7) Whether plaintiff is entitled to receive rent at the rate of Rs, 4 p.m. From the defendant ? If so, for what period ?
(8) Whether suit is under-valued and insufficiently stamped?
(9) Whether suit is bad for want of notices under section 30, D. P. Act and under section 106 of T. P.
Act ?
(10) Whether this Court has got no jurisdiction to try this suit ?
(11) What should the decree be ?
' It is admitted position in the case that in spite of opportunities granted to the applicant between 30th November, 1977 and 23rd February, 1978 no evidence was examined on his behalf and therefore the contention raised in the written statement filed by him remained unsupported. I need not add that written statement is not a substantive evidence in a case and if the defendant) does not appear to support the pleas raised in the written statement A and offer himself for cross- examination on facts stated in the written statement the contentions raised in the written statement cannot be relied upon.
2. On behalf of the plaintiff his attorney Khawaja Abdul Kalam Exh. 56 was examined. This witness produced P. T. D. Exh. 58 and also Exh. 59, Exh. 60, Exh. 61 to support the title of the plaintiff/respondent in this property. On appreciation of the evidence produced on behalf of the plaintiff and in the absence of any evidence legally admissible on behalf of the applicant/defendant the learned trial Court gave a finding in favour of the respondent/plaintiff holding that the plaintiff was the owner of the property in question. On same considerations the learned trial Court decided issues Nos. 4, 7 and 9. Few lines from this judgment may be quoted to show that up to this stage the question of notice was not a serious defence.
"Whereas the defendant has not denied about the service of such notice while crossing the P. W. 1, nor lead any evidence in defence. So in view of above facts and reasons I hereby decide all the three issues in favour of plaintiff accordingly."
' I need not discuss other issues and the findings thereon because the subject matter of those issues has not been debated by the counsel before me today. The applicant appealed against the judgment and the decree dated 30th March, 1978 passed by the learned Civil Judge, Warah. This was recorded as Civil Appeal No, 13/78 and has been dismissed by the learned Ist Additional District Judge, Larkana by his judgment, dated 30th March, 1979. Against these two judgments and the concurrent findings in them the applicant defendant has failed this revision in the High Court.
2. Mr. Abdul Fateh Memon, learned counsel for the appellant, who argued the case of the applicant before me raised the following objections :-
(1) That even if the concurrent findings on the question of notice are accepted this was the notice under section 30 of the Displaced Persons Act under section 106 of the Transfer of Property Act which is mandatory provision of law to be complied with before a suit for possession is filed by a lessor against a lessee.
' The learned counsel has produced the following cases in support of his contention :-
(1) PLD 1962 Kar.
32.
(2) PLD 1961 Lah.
791.
(3) 1970 SC MR 387.
All these cases relate to the situation when the relationship of lessor and lessee is found to exist. In the present case the applicant on his own showing never for a moment accepted the title of the plaintiff/respondent in the property and these status of a lessee of the property vis-a-vis the respondent/plaintiff. In the absence of the relationship of a lessor and a lessee the applicability of provisions of section 106 is out of question. For ready reference section 106 may be reproduced :- "106. Duration of certain leases in absence of written contract or local usage.-In the absence of a contract or local law or usage to the contrary a lease of immovable property for agricultural or manufacturing purpose shall be deemed to be a lease from year to year, terminable on the part of either lessor or lessee, by six months' notice expiring with the end of the year of the tenancy : and lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee by fifteen days' notice expiring with the end of a month of the tenancy.
' Every notice under this section must be in writing signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.- ' The finding of the learned Judge on this point in his appellate order are contained in the last para. Of his judgment, dated 20th March, 1979 which I may reproduce below : - "The first contention that no valid notice has been served on the appellant is meaningless as the appellant has denied the title of the respondent over the property in dispute. Reliance is placed on PLD 1968 Dacca 795 so far the second contention of the appellant is concerned the respondent has given number of the property in dispute accordingly there is no force in this contention."
4. Mr. Abdul Fateh Memon, learned counsel for the applicant objects to this finding and relies on the discussion and findings of the trial Court while disposing of issues Nos. 1, 2,
3. His contention is that the affirmative findings on these issues itself, shows that the respondent was the owner of the property. I agree with him that the plea of his client claiming ownership of property has been rejected by the learned Court and the respondent's title to the property has been recognized. But there is no finding to the effect that this owner and the appellant had contracted a relationship of landlord and tenant at any time and if there is no such finding then the foundation for claiming a notice under section 106 disappears. The plain facts are that the ownership of the respondent to the property has been accepted by two courts below and the assertion of the applicant claiming ownership has been rejected. The relationship of lessee and the lessor being absent on his own admission the applicant must show some legal justification to remain in possession of the property. He has not been able to show any. As such the two concurring judgments cannot be disturbed.
' In the end I may discuss the case law. The first case I would like to mention is reported in 1970 SCMR 387. The decision in this case has no application to the facts of this case. I may reproduce the observations of the then Chief Justice Mr. Hamoodur Rahman on page 390. ... Once a person has been inducted as a tenant and a relationship of landlord and tenant is established, that relationship can only be terminated in accordance with law either by efflux of the stipulated period of the tenancy or where no such period is fixed by the service of a notice to quit.
In the case of a monthly tenancy in the absence of a contract or a local law or usage to the contrary, this can only be done by service of a notice to quit in terms of section 106 of the Transfer of Property Act, which applies when the tenant is in possession without evidence of the terms of the letting. It is admitted that in the present case the receipt fixed no period and no such notice to quit was ever served. In the circumstances the tenancy did not terminate merely by reason of the fact that after a certain point of time the landlord refused to accept rent. It is not possible to exceed to the contention that a landlord can by merely refusing to accept rent lawfully terminate a tenancy."
' Even a casual reading of this observation would show that this was a case of admitted tenancy where the landlord was receiving rents regularly from the tenant but abruptly refused to accept rents and called up for possession. In this context it was held that the tenancy could not be terminated without a notice under section 106 of the Transfer of Property Act.
5. PLD 1961 Lah. 791 has also been relied upon by the learned counsel but this was again a case of admitted tenancy.
' The third case relied upon by the learned counsel is PLD 1962 Kar.
32. This again was a case of admitted tenancy and the discussion proceeded on the assumption and it was held that a clear one month's notice must be given in compliance with the provisions of section 106 of Transfer of Property Act before a suit for possession could be filed.
6. The cases of disputed tenancy have been considered by the learned District Judge in his judgment. It may be added that it was a suit for possession and not a suit for ejectment of a tenant. The plaintiffs has paid ad valorem court-fee on the subject matter of the suit and the value disclosed in the plaint is the full amount of purchase price which he has paid to the Settlement Authorities. The other relief claimed by him is a decree in the sum of Rs, 144 "towards the use and occupation of the house for the past 30 years and continued to pay at the same rate of Rs, 8 per month till he vacates." Admittedly this is not a case of contractual tenancy. The tenancy could be by operation of law and the defendant/appellant could claim the protection of section 30 of the Displaced Persons Act if he wanted to explain the default in payment of rent but he took up an attitude by which he is neither accepting the title of the respondent/plaintiff nor he is claiming the benefit of section 30 on the basis of his tenancy under the Custodian. There can be no other position for him except a trespasser and as such the question of a notice under section 106 does not arise.
7. The two concurrent findings are maintained. This revision is therefore dismissed with costs.