1. ' IBADAT YAR KHAN, J.-This is the tenants' appeal against the order of ejectment passed against the appellants on the allegation of long default payment of rents. The order came to be passed by the learned Rent Controller, Larkana, on the 31st of March, 1983 in the following circumstances :- ' Plots bearing Survey Nos. 863/8,863/9-A, 863/9-B and 863/10 were purchased by respondents from the Settlement authorities in an open auction. Mutation was effected in their favour in the record of rights. This, they became owners/transferees of the property. The respondents sent a notice, dated 24th of May, 1981 through their Advocate to the appellants complaining that in spite of requests and reminders the appellants had neither paid any rents nor had vacated the premises. The notice concluded in these words : You are, therefore, hereby informed by this notice that you vacate the said premises and hand over the possession thereof to my client and pay the mesne profits due against you within 15 days from the receipt hereof, failing which my client will be constrained to seek remedy against you in the Court of law and you will be responsible for cost and other expenses, which may please note." There was no reply to this notice. The respondents, therefore, filed this application praying for ejectment of the appellants from the premises. After stating that they had purchased the property and were owners of the same, they put up their case against the appellants thus : "(3) That the opponents are statutory tenants thereof and possessed jointly and are defaulters in payment of the rent and made some illegal structure thereon temporary.
(4) That the applicant has served the notice upon the opponents in the month of May, 1981 and were also served in 1978 and demanded the rent from the opponents but neither rent was paid nor any reply were given by them.
(5) That the applicant bona fidely requires the said plot for personal use.
(7) That the opponents are fully defaulters and did not pay any rent since the applicant became owner and the written notices were served upon them but all are in vain.
(8) That the applicant is entitled to receive the rent arrears of last three years with the rate of rent fixed by the assessing authorities from the opponent of the said property.
(12) That the applicant prays for judgment and decree as under :
(I) This Hon'able Court be pleased to order directing the opponents to put the applicants (landlords) in the peaceful possession of plot bearing C. S. Nos. 863/8, 863/9-A, 863/9-B and 863/10 Ward 'C', Larkana.
(ii) Award costs of the suit."
2. ' The three appellants filed "objections" jointly. They admitted the ownership of the respondents but denied the liability to pay rents. They had taken a peculiar position and stuck to it till the end before the learned Rent Controller. I may, however, state that in this appeal before me they have deviated from the position they had taken and I will discuss this change in their attitude at a later stage after I have discussed pleas which were raised before the Rent Controller and which have been examined in his order under appeal before me. I would reproduce the stand taken by them in their objections :-
(2) "Para. (1) of the application is denied. It is submitted that the disputed property has been sold by the Shabir Ahmed real owner to me and other opponents at the rate of Rs, 3 per square feet before the witnesses, vide an oral agreement during 1978, as such he has taken the amount viz. Rs, 1,977 from me and Rs, 2,379 from Muhammad Moosa and Rs, 1,548 from Akhe Khan. The possession of disputed plots is lying with opponents, since 1959-60 which is evident from the receipt of drainage Tax paid by Muhammad Moosa (Copy of the same is enclosed herewith).
3. It is further added that plots in question were in zig-zag condition which were developed by opponents by spending huge amount on it and made the construction on it as such I have made the office into the same since 1970-71, hence the applicant has no right or title to recover the rent from opponents.
(3) Para. (3) of the application denied. It is submitted that Shabir Ahmed has not given the notice in stipulated period to opponents. Even after that he has sold the disputed property to me, and others, hence the question of default in payment of rent to applicant does not arise.
(6) Para. (6) of the application denied. It is submitted that Shabir Ahmed real owner has sold the disputed property to me and others hence he has no title over the property in dispute any more.
4. Therefore, the question of making the construction or developing by applicant does not arise. The applicant only intends to sell the disputed property to others illegally.
(7) Para. (7) of application is denied. It is stated that the disputed property is already sold by Shabir Ahmed to opponents hence never demanded the rent since 1978 as yet from opponents hence the question for default in payment made by the opponents does not arise. The opponents would file the suit for specific performance of contract against applicant."
5. ' The parties then led evidence. The applicants' attorney Muhammad Anwar filed an affidavit-in- evidence. He was cross-examined. In paras. 2 and 3 of his affidavit he made out the case of the respondents and I will quote his statement : "(2) That the property in dispute bearing C. S. No, 863/8, 863/9-A, 863/9-B and 863/10 Ward 'C', Larkana is the property of applicants and same is from a continuous one plot and the opponents are in joint possession thereof as statutory tenants thereof to the applicants.
(3) That the applicants have never sold out the premises in question to opponents through oral agreement or amount was received by the applicants or from any other person in respect of the premises in question. The alleged transaction and amount by the opponents is false, fabricated."
6. ' All the three opponents Muhammad Moosa, Deedar Hussain and Akhey Khan filed affidavits-in- evidence and were cross-examined. In addition to these supporting affidavits of Mehar Ali Sheikh, Shamsuddin Rajput, Roshan Ali Kalhoro and Muhammad Bux Kalhoro were also filed. The common feature of these affidavits is that the property has been purchased by the opponents under an oral agreement and the consideration has also been already paid. On these pleas and on this evidence the learned Rent Controller has passed the impugned order. He has formulated the following points for determination :- Point No,
1. Whether the applicants are the owner and landlords of the disputed property and the opponents are their tenants ?
7. Point No,
2. What is the rate of rent ?
8. Point No,
3. Whether the opponents have committed default in payment of rent ?
9. Point No,
4. Whether the property in dispute is required by the applicants for their personal use ?
10. Point No,
5. What should the order be ?
11. ' As the grounds of personal need have not been accepted by the Rent Controller nor any grievance has been raised before me I would confine the discussion on the point of default which has been examined by the learned Rent Controller and on which the adverse findings have been recorded against the appellants. The learned Rent Controller in his order has examined this position and I may quote a portion of his order which runs as follows :- "The only contention of the opponent is that since the property in the suit has been sold out to them by applicant No, 1, hence they are not tenants of the applicants. But this plea of the opponents is mis conceived and devoid of any force as for determining the question of landlord and tenant the primary thing is the ownership of the property which has been established by the applicants and further the applicants have proved to have been served notice of demand of rent served upon the opponents. As such mere transaction of sale if any does not absolve the tenants (opponents) from their liabilities to pay the rent and also the agreement to sell does not confer any right of ownership upon the vendee until and unless the registered sale-deed is not executed and then the liability to pay the rent comes to an end.
12. I, therefore, in view of my above reasons and the documentary proof brought on record by the applicants hold that the applicants are the landlords and the opponents are their tenants who are bound to pay the rent to the applicants and there existed their relationship between landlord and tenant. Point No, 1 is, therefore, answered in the affirmative."
13. ' These were the findings of the learned Rent Controller. But they are not challenged in this appeal.
14. Instead of arguing the case on this plea the learned counsel for the appellants has advanced lengthy arguments and has not even adverted to the plea of purchase of property during his arguments as was the case set up by him. According to him he is entitled to change his position and argue his case differently because as he puts it, it is a question of law and can be raised any time. The contention of the learned counsel is that admittedly the appellants are not the tenants of the premises by agreement of parties. They would surely become statutory tenant under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act but only if the requirements for creation of such a tenancy under the statute are fully complied with. The transferee landlord would be entitled to claim rents after he has served notice under section 30 of the Act. On the point of notice I may say that in para. 7 of the affidavit of Deedar Hussain, one of the appellants, it was denied that any such notice was ever served on them. Para. 7 is as follows :- "That Shabir Ahmed neither given notice nor demanded rent from us as he sold out the same to us to his own accord."
15. ' But in the cross-examination this witness made the following statement "It is a fact that I was served with the notice from the applicant's Advocate but no reply has been given to the applicant's Advocate.
16. ' Once the service of the notice is accepted there was hardly any point to deny the liability to pay rents but the learned counsel contends that the property involved is open plot and as such is not covered by the provisions of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act under which such statutory tenancy can be created. Section 30 of the Act runs as under :-
(1) Where any person is in possession of any evacuee house, or shop, or has been declared on or before the 20th day of December, 1958, by a Custodian to have tenancy rights from a date prior to the 14th day of August, 1947 in any industrial concern, cinema house or printing press which is transferred to any other person under the provisions of this Act, then notwithstanding anything contained in any other law such person shall without prejudice to any other right which he may have in that house, shop, industrial concern, Cinema house or printing press, be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held it immediately before transfer ' Provided that :-
(a) it shall be lawful for the transferee to charge a rent on the basis of the latest assessment carried out by the Municipality or Local authority, as the case may be, for other properties in the locality generally ; and
(b) it shall not be lawful for the transferee to eject such persons from the house or shop for a period of six years and from the industrial concern, Cinema house or printing press for a period of 3 years from the date of transfer, notice of which shall be given by the transferee to the tenant within one month of such transfer by registered post (acknowledgment due).
(2) Where the transferee does not give notice within one month, as required by proviso (b) to subsection (1), the period mentioned in that proviso shall count from the date of receipt of such notice by the tenant.
(3) Nothing in proviso (b) to subsection (1) shall apply to a tenant-
(i) who has not within 3 months from the date of receipt of a notice of demand sent to him by the transferee by Registered Post (acknowledgement due) paid or tendered the amount of rent or arrears of rent due for any period after the transfer ; or
(ii) Who after the transfer, has sublet or otherwise parted with the possession of the house or shop, industrial concern, Cinema house or printing press, or any part thereof, or has committed acts which are destructive or injurious to the property nor shall anything therein apply to the tenant of any house or shop, in any urban area within the same town or city, owns a house or shop, as the case may be.
(4) On the expiry of the period mentioned in proviso (b) to subsection (1) or on the contravention of any of the provisions of subsection(3), whichever is earlier, the relationship of landlord and tenant between the transferee and the tenant shall be regulated in accordance with the law for the time being in force relating to such relationship."
17. ' Learned counsel contends that the property in question is neither a house nor a shop but an open plot and as such would be out of ambit of the provisions of section 30 and as such the statutory tenancy could not be created in this case. In support of his argument the learned counsel has relied upon a case Ayoob and another v. Masjid Nauman (1). Before I examine the impact of this case, I would rather refer to some other cases relevant for this part of the argument.
18. ' Now shop has been defined in section 2(12) of the definition clause of the Act as shop means "evacuee business premises of any value in an Urban
(1) 1973 SCMR 604 area or of the value of ten thousrnd rupees or more in a rural area together with godowns or store- house, but does not include any building situated within the premises of an Industrial concern, or a building or premises declared under paragraph 16 of the Schedule to be a "Big Mansion" or hotel or such class of Business Premises in a rural area as may be declared by the Central Government, by Notification in the official Gazette not to be shops within the meaning of this clause."
19. ' The expression "business premises used in the definition of shop has been examined in a very well considered judgment of Mushtaq Hussain, J. In Shoukat All v. Abdul Hamid (1). At page 15 of the report the learned Judge explains this expression in the following terms :- "It is, therefore, not necessary to stretch etymology or imagination for the purpose of holding that the expression 'premises' also connotes land and would, therefore, cover an open plot, unless the statute, in which it is being used, treats it as word of art and it goes without saying that in such a case the interpretation clause of such statute will state the meaning with which it is to be clothed in that statute. The word 'premises' does not find any mention in section 2, which is the interpretation section of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. It is, therefore, proper that it should be given the meaning which it has in common acceptance."
20. ' In the end the learned Judge summarised his conclusions as follows :- "(a) the word 'premises' unless used as a term of art in a statute, is to be understood as including land whether as a part of a building or independently of it ;
(b) that this word has not been used as a term of art in section 2(12) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 ; and, therefore.
(c) evacuee land, which is being utilised as business premises and has been acquired under section 3 of the Act, is covered by the definition 'shop' for the purposes of section 30 of the said Act."
21. ' In the above case also the question involved was whether an open plot which was used for the purposes of tethering cattle and running a fuel wood business and was treated as an open plot could fall within the ambit of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act creating a statutory tenancy to which the provisions of sections 13 and 2 of Urban Rent Restriction Ordinance could apply and it was held that this plot was governed by the provisions of Rent laws and proceedings for ejectment from the plot filed before a Rent Controller were competent.
22. ' Another case relevant for the purpose of this case has been decided by Aftab Hussain,
5. And is reported as Zainab Bibi and 5 others v. Iqbal Begum (2). In this case it was held that a plot on which structure of temporary nature has been raised and which had been transferred by the Settlement Authority as a vacant building site should be treated as a house to which the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959 would apply and the Rent Controller would have jurisdiction to deal with such a plot and pass orders in disputes arising between the parties as disputes between landlord and tenant within the meaning of the
(1) PLD 1969 Lab. 12 (2) PLD 1974 Lah. 350 ' Ordinance. There is another short judgment reported in 1970 SCMR 498 in which Mr. Justice Muhammad Yaqub All sitting with late Mr. Justice Wahiduddin Ahmed observed that section 30 was applicable to a case of person occupying ..a flat in a big mansion although big mansion was not mentioned in section 30. It was held :- "A big mansion is no doubt excluded from the definition of a 'house' for the purposes of its transfer under the Displaced Persons (Compensation and Rehabilitation) Act, but it does not cease to be a house or a shop within the purview of section 30. A person in possession of a tenement in the big mansion, therefore, becomes a statutory tenant under the transferee and is entitled to the benefits provided therein."
23. ' Another case which may profitably be mentioned is a case reported in PLD 1971 SC 573 in which the property involved was an open plot bearing No, 5/333 situated in Sabzi Mandi, Gujrat. Ejectment proceedings were filed by the transferee against the occupant of this plot on the assumption that statutory tenancy was created between the parties on the basis of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act. The dispute developed regarding the quantum of rent and the matter went right upto .He Supreme Court. The following observations were made in the judgment which may be reproduced :- "As already stated under section 30 of the Displaced Persons Act, a person in possession of an evacuee property shall be deemed to be a tenant of the transferee on the same terms and conditions as payment of rent or otherwise on which he held it immediately before the transfer ...... ...In this background it cannot be said that the Rent Controller by fixing the tentative rent at Rs, 50 has acted arbitrarily or capriciously."
24. ' This is the state of law so far as the question of open plot is concerned. But a case reported in 1973 SCMR 604 has been relied upon by the learned Advocate for the appellant and it deserves a special mention. In this case open plot of land which was used for running a fodder business by the appellants was transferred to the respondent mosque namely, Masjid-e-Noman. On the failure of the appellants to vacate the plot for the use of the Masjid, the Masjid filed a suit for possession and mesne profits against the appellants/occupants. This suit was decreed by the trial Court and the first appeal as well as the second appeal preferred against the decree were dismissed. The appellants/occupant filed an appeal before the Supreme Court against these three concurrent judgments and the main contention raised there was that the property involved was transferred to the mosque under the Settlement scheme and they had become statutory tenants of the mosque in terms of section 30 and were entitled to the beneficial safeguards provided for a tenant under the second proviso of this section. In other words the contention was that the remedy of suit chosen by the mosque for the eviction of the appellants was misconceived. The contention was that the disputed land was a shop within the definition of section 2 (12) of the Act and as such the provisions of section 30 were applicable. The defence on behalf of the mosque was that it was neither a shop nor a house but an open plot in occupation of the appellants where they were running a fodder business in partnership. Moreover, their occupation of the plot was not "possession" which has been defined by section 2(6) of the Act. Dealing with these contentions the Court held as follows :- "Under section 30 of the said Act protection is given to a person in possession of any evacuee house or shop etc. The section contemplates a person who has come to occupy the property in question authorisedly. In the present case the finding of the learned Additional District Judge is that the appellants were not the tenants of the respondent in respect of the plot in dispute. The appellants do not claim that they came into possession of the property in dispute in pursuance of an order passed on or before the 20th day of December, 1958 by the Rehabilitation Authority etc. Or under any order of the Central Government as required under section 2 (6) of the Act. 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 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. The appellants are, therefore, not in possession of the premises in dispute within the meaning of section 30 read with section 2 (6) of the Act.
25. ' Besides section 30 applies only to an `evacuee house or shop' and the disputed premises as already held by us is not such a shop. The appellants' contention that `shop' under section 33 has a different meaning other than 'shop' under section 2 (12) is untenable on the accepted principles of construction of a statute. The appeal is accordingly dismissed without any order as to costs. We grant three months time from date to the appellants to vacate the premises in question."
26. ' The appeal was dismissed as shown above and the contention that the case was covered by section 30 was overruled primarily for the reason that it was a case of an open plot which was beyond the purview of section 30. The additional ground to exclude this plot from the operation of section 30 was that the possession of the appellants was not the possession as defined in section 2(6) of the Act and for this reason also the provisions of section 30 were inapplicable. This case should have concluded the controversy in favour of the appellants in spite of balance of authority and the weighty opinion of the Courts expressed in the cases mentioned in the earlier part of this judgment. But this case came to be examined very closely by Muhammad Afzal Zullah, J. (as he then was) in the case of Muhammad Iqbal v. Mehraj Din and another (1). In this case question arose whether a statutory tenancy was created between occupants and transferees of open plots under the Settlement Scheme by force of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act. If so, then the proceedings for ejectment of the tenants filed before the Rent Controller and an order of ejectment passed in those proceedings was sustainable, if not then the order of ejectment passed by the Rent Controller was without jurisdiction. The facts of the case were that two plots were transferred to Mehraj Din and others under the Settlement Scheme and P.T.Os and P.T.Ds. Were issued in their
(1) PLD 1976 Lab. 831 ' favour. Muhammad Iqbal appellant was in occupation of these plots which were used as a shop and a house. Finding default in payment of rents the Rent Controller ordered ejectment of Muhammad Iqbal and passed an order for delivery of possession to the transferees. The occupant denied relationship of landlord and tenant and questioned the validity of the order passed by the Rent Controller contending that there was no statutory tenancy between the parties as open plots were excluded from the provisions of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act. It was held that although the Settlement Authorities had transferred the premises as open plots but at the time and before the transfer there were structures at the spot which were used by the appellant for business as well as for a house. Originally there was Kacha construction but at some stage it was converted into Pucca construction at the appellant's own expense. It was held that though the transfer of plots by the Settlement Authority was made on the basis of the property being open plots but as there were structures they were qualified to be termed as shops and a house and fell within the purview of section 30. As such the proceedings before the learned Rent Controller were held to be competent and the order of ejectment passed by the learned Rent Controller was maintained. The case of Ayoob and another decided by the Supreme Court mentioned above was distinguished by Zullah, J and it is proper to produce this part of the judgment in extenso "No doubt prima facie the observation of their Lordships of the Supreme Court in the case of Ayoob and another (at page 605 of the report) relied upon by the learned counsel for the appellants to the effect that 'In order to be a shop it must be so treated by the Settlement Authorities and transferred as such' supports their position that plots transferred as such by the Settlement Authorities would not be covered by the provisions contained in section 30 of the Act. With respect, however, it is pointed out that this observation has to be read in the context of the facts mentioned in detail in the judgment. It was in the circumstances of the said case that the premises therein could not be treated as shop even on the factual side. Their lordships noticed some facts as follows :- 'It may be stated at the very outset that paragraph 1 of the plaint read with the written statement of the appellants shows that the disputed premises is a building site, and it has always been treated as such by the Settlement Authorities. This fact receives support from the letter, dated 29th of September, 1967, addressed by the appellant's Advocate to the respondent's Advocate, a copy of which was handed over to us by the respondent's Advocate, Mr. Ajmal Mian. The letter says that the appellant Ayoob Khan had been 'in possession' of the piece of land now under his occupation for the last 20/25 years and has been running fodder business in the partnership of his brother.The learned Additional District Judge on a consideration of the evidence found that the property in dispute had been transferred to the respondent as an open plot of land. The High Court has concurred with this finding for good reasons, and no fault can be found with the finding.'
27. ' Earlier at page 604 of the report, their Lordships noted a very important fact which has a direct bearing on the present discussion.
28. ' The relevant observation reads : "The High Court on a reference to the judgments of the trial Court and the first Appellate Court was of the view that the appellant's contention was primarily not that there was superstructure on the premises occupied by the appellants. Thus, the afore-quoted observations show that their Lordships after taking note of the findings of the High Court and the effect of the letter, dated 29th day of September, 1967 were of the view that at the time of the transfer there was no superstructure on the premises and that the possession was 'of the piece of land' where upon `fodder business" was being run. It is not denied that fodder business can and is often run without raising any structure.
7. In the present two cases it is an admitted position that on both the plots there were structures- one was being used as cattle shed and the other as residential premises. When read in the above factual context, the observation of the Supreme Court in the case of Ayoob and another relied upon by the learned counsel for the appellants would mean that if a building site is transferred by the Settlement Authorities as such, without there being any structures thereon, it will be treated as premises not covered either under sections 2(4) and 2 (12) or section 30 of the Act. This interpretation finds analogical support from their Lordships' ruling in the case of Nawab Syed Mohiuddin Ali Khan relied upon by the learned counsel for the respondents. It was held therein that a big mansion is no doubt excluded from the definition of a 'house' for the purpose of its transfer under the Displaced Persons (Compensation and Rehabilitation) Act, but it does not cease to be a house or a shop within the purview of section 30. A person in possession of a tenement in the big mansion, therefore, becomes a statutory tenant under the transferee, and is entitled to the benefits provided therein.
8. In the light of the above discussion while distinguishing the case of Ayoob and another and relying on the aforesaid ruling of the Supreme Court in the case of Nawab Syed Mohiuddin Ali Khan, I am in respectful agreement with the view taken in the Lahore case of Mst. Zainab Bibi and others, earlier noticed. The appellants are statutory tenants and having been found defaulters in payment of rent their ejectment through the impugned orders is unexceptionable."
29. Viewed in this context the case of the present appellant would also fall within the purview of section 30 because on his own showing in para. 2 o his objections he has raised constructions over the plots and he is using them for commercial and residential purposes. No doubt the premises hay been transferred to the respondents as open plots by the Rehabilitation Authorities but constructions have been raised thereon as early as 59/60, and they were being used for commercial and residential purposes at the time of transfer. Thus, the case would fall within the purview of section 30. If section 30 is applicable then statutory tenancy is created and, therefore, they become tenants of the respondents and their ejectment could be secured only through the forum of the Rent Controller under the provisions of the Sind Rented Premises Ordinance, 1979.
30. ' The other leg of argument of the learned counsel is that the appellants are not in possession of the premises within the meaning of section 30. Counsel contends that "possession" should not be read in its ordinary meaning implying "occupation" but should be interpreted in the restricted meaning as assigned to it in the definition clause of the Displaced Persons (Compensation and Rehabilitation) Act. As appellants were not in "possession" they do not become tenants of the respondents under section 30 and cannot be ejected by the Rent Controller under the Sind Rented Premises Ordinance. So, the counsel contented "possession" has been defined under section 2(6) of the Displaced Persons (Compensation and Rehabilitation) Act.
31. This definition has itself passed through evolutionary changes and before I examine the argument of the learned counsel on its intrinsic merit let us comprehend the changes.
32. ' The original form of the provision of section 2(6) was as follows : - "Possession" means possession obtained in pursuance of an order passed on or before the twentieth day of December, 1958, by Rehabilitation Authority or a Custodian or any other officer authorized or permitted by the Central or Provincial Government : 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 subject to such conditions as may specified in the order, be deemed to be in possession for the purpose of this Act."
33. ' Then a change occurred and its scope was enlarged by a notification issued by the Government on 13th October, 1959. Hence forth even such unauthorised occupants who had acquired possession without any order of the Rehabilitation Authority, Custodian or any authorised officer were deemed to be in possession of the premises provided they fulfilled certain other conditions.
34. The amended form of the provision stood as follows :- "No, F.I. (27)159-SI, 13th October, 1959, Gazette, Extraordinary, 26: October, 1959. -In exercise of the powers conferred by the second proviso to clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVII of 1958), the Central Government is pleased to direct that a claimant, a non-claiment displaced person or a local who has not obtained possession of a house or a shop in pursuance of an order passed by a competent authority on or before the twentieth day of December, 1958 shall, for the purpose of the aforesaid Act, be deemed to be in possession thereof, if he has been in undisputed occupation of the house or the shop since before the twenty-first day of December, 1958, and no other person is otherwise entitled to the transfer of such houses or shop in pursuance of a final order passed by a competent authority before that day: ' Provided that the rent and other public dues in respect of such house or shop have been paid by the occupant from the date of hi occupation and, if he is a claimant, such amount is adjusted against' his claim."
35. ' This change was followed by yet another amendment brought about by Notification No, F- 3(3)/60-51, dated 9th September, 1960 to the following effect :- "The allottee of a house or a shop for whose benefit ejectment proceeding have been ordered by a Court or a Rehabilitation Authority and who, through no fault or negligence of their own, have so far been unable to obtain physical possession of the house or the shop in question shall be deemed to be in possession thereof for the purpose of the same Act."
36. ' A bare reading of the definition of possession in section 2 (6) as it was in the original form as well as after the changes introduced in its text from time to time would indicate that it is germane to the disposal of pool property to the different classes and categories of persons to whom the property was to be transferred. One of the main considerations for disposal of such property among the claimants, the non-claimant displaced persons and the locals was "possession" of the units of property involved.
37. Possession could be authorised or unauthorised. Classification of various competing interests among the Transferees (the owners to be). Were made on the basis of their possession and quality of that possession. If this definition is read with sections 10 &16 of the Displaced Persons (Compensation and Rehabilitation) Act and the schemes framed thereunder the ex-1 pression "possession" with all its appendages squarely fits into the scheme of) things.
38. ' I would quote the following clauses of the schedule of the Act showing manner of disposal of urban evacuee property. Word "possession" has been used in these clauses :- #TBS (1) #TBE Houses. -A house in possession of a claimant or a parent, son, daughter or spouse of the claimant, being a house which such parent, son, daughter or spouse does not claim under the provisions of the schedule, and if there is more than one such house, then any one of the houses which the claimant desires to retain, shall be transferred to him at a price determined on evaluation basis.
(2) Non-claimants.--A house in possession of a non-claimant displaced person and which the non-claimant desires to retain shall be transferred to him on payment of the prevailing market value.
(3) Locals.-A house which is in the possession of a local and the price of which determined on evaluation basis does not exceed ten thousand rupees and which such local desires to retain shall be transeferred to him on payment of the prevailing market value.
39. ' Section 30 on the other hand relates to a totally difficult situation. It is designed to control ejectment of persons from property which was being disposed of by the Settlement Authority.
40. ' As soon as the property was disposed of by the Settlement Authority the transferees automatically became entitled to acquire possession and in the event of failure of the occupants to vacate they could be thrown out by resorting to the remedies provided in the Transfer of Property Act.
41. ' In cases of contractual tenancies the relationship of lessors and lessees was governed by the special statutes. The different Rent laws had provided safeguards and protection to tenants and curtailed the rights of the owners/ landlords which belonged to them under the T.P. Act. The rights to take back possession by terminating the contract of tenancy had been taken away from the landlords/owners and due to the overriding provisions of the Rent laws the tenants could not be ejected from the premises once they had been inducted under a contract of tenancy by the landlord, ' Multitude of occupants, who were living in the evacuee property now stood exposed to be thrown out by a new class of owners to whom the property stood transferred under the Settlement Schemes. Most of these occupants would have been uprooted and unsettled if similar protection was not provided to them as had been provided to the tenants against eviction in case of contractual tenancies. Section 29 and section 30 are aimed at achieving this objective.
42. Section 30 of the Displaced Persons Act is really a twin of section 1 of the Sind Rented Premises Act or corresponding sections in the Rent laws of other provinces. In reality it is a part of the Rent laws.
43. The only difference is that while the protective provision in the Rent laws covers case of existing contractual tenancies, this section 30 first creates the relationshi of landlord and tenant and then accords protection to such a tenant.
44. ' Section 30 (1) is as follows :- "Where any person is in possession of any evacuee house, or shop o has been declared by a Custodian to have tenancy rights from a date prior to the fourteenth day of August, 1947, in any industrial concern, Cinema house or printing press which is transferred to any other person under the provisions of this Act, then notwithstanding anything contained in any other law, such persons shall, without prejudice to any other right which he may have in that house, shop, industrial concern, Cinema house or printing press, be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held it immediately before transfer."
45. ' After creating such a tenancy the section proceeds to put an embargo on the right of the landlord from ejecting this statutory tenant. Clause (b) of subsection (1) of section 30 runs as under : - "It shall not be lawful for the transferee to eject such person from the house or shop for a period of six years, and from the industrial concern, Cinema house or printing press for a period of three years from the date of transfer, notice of which shall be given by the transferee to the tenant within one month of such transfer by registered post (acknowledgment due)."
46. ' The additional benefit allowed to the tenants under section 30 is that they would enjoy complete immunity from any attack on their possession of at least a period of six years. The transfer of house or shop is subject to the condition that for six years the transferees cannot invoke the right to claim possession even if they could make out a case for possession under section 16 of the Rented Premises Act. All the remedies to claim possession on the grounds enumerated in section 15 of the Rented Premises Act like personal requirement, reconstruction, nuisance etc. Which could form a basis for a ejectment application before the Rent Controller, would remain suspended for six years.
47. ' The above discussion would show that concept of "possession" under section 2 (6) and 2(12) is distinguishable from the concept of "possession" under section 30. There it determines the eligibility of an applicant to g claim/acquire a particular unit of property. Under section 30 "possession" is intended to ensure a safe and peaceful continuity of occupation by the occupant tenant for a period of six years. Reference may also be mad to subsection (3) (ii) of section 30 itself where "possession" has been used.
48. 30(3) (ii).-Nothing in proviso (a) to subsection (ii.) shall apply to a tenant.
49. "(i) Who after the transfer, has sublet or otherwise parted with the possession of the house, shop, industrial concern (sic) pa thereof, or has committed acts which are destructive of or injurious to the property nor shall anything therein apply to the tenant of an house or shop who, in any urban area within the same town or city, owns a house or shop, as the case may be."
50. ' Here again the term "possession" has been used and for obvious reason cannot be read as possession defined in section 2(6) quoted above.
51. ' I have ventured to analyses the situation to meet the points that were raised by the learned counsel, Before parting with the case I may add that it is common ground between the appellants and respondents that the pro- party involved was transferred to the respondents through a public auction under the Displaced Persons (Compensation and Rehabilitation) Act. None of the counsel was in a position to provide details about the date and particulars of the auction and orders of transfer passed by the Settlement Authority as a result of the auction. Nor indeed these particulars could be gathered from the record and proceeding of the lower Court. The extract filed by the respondents merely shows the dates of the P.T.O. And C.S.O. The learned counsel for the appellant has pitched himself on the interpret. Action of section 30 and definition of the word possession in the definition clause of the Displaced Persons (Compensation and Rehabilitation) Act. This appeal has, therefore, proceeded on the assumption that the case would fall within the scope of the Displaced Persons (Compensation and Rehabilitation) Act. The transfer in favour of the respondents was effected before the repeal of this Act. No other point except the contentions discussed above was raised by the counsel of the appellant.
52. ' In view of the discussion above I would dismiss this appeal with cost. Order of the learned Rent Controller is upheld. The appellant should vacate the premises and hand over the vacant possession to the respondent within one month of this Order.