1. ' Property bearing No, 1-A/12-121 situated in Kandiaro was purchased by the appellant in an open auction from the Settlement Department and Permanent Transfer Deed was issued on 30-6-1965.
2. The appellant filed ejectment case against the respondent and one Shahijram for ejectment on the ground that in spite of service of notice under section 30 of Displaced Persons (Compensation and Rehabilitation) Act the respondent has defaulted in payment of rent, and that he has made unauthorized construction and sublet the premises to Shahijram. It was also pleaded that he requires the premises for his personal use and of his children. The respondent denied that he is residing in the house which has been transferred to the appellant. He also denied the receipt of two notices purported to be notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and pleaded that Shahijram is not a sub-tenant, but he was his guest, has left the house and no longer resides there. It seems that during the pendency of the case Shahijram also filed his statement Exh.10 stating that he has vacated the premises. With the consent of the appellant by order, dated 9-10-1978 the learned Controller struck off the name of the respondent No,2. He framed 8 issues and held that the house bearing No,1-A/120-121 Kandiaro belongs to the appellant. He held that service of notice under section 30 the relationship of landlord and tenant between the parties and default by the respondents has not been proved. He further held that he has no jurisdiction to eject Shahijram, as he is a trespasser and the ejectment application is barred under Art. 124 of the Limitation Act. It may be noted that on the statement of respondent No,2 the case was withdrawn against him, therefore, there was no occasion for the learned Controller to hold that he has no jurisdiction against respondent No,2. As regards bar of limitation the findings of the learned Controller is completely erroneous. Having held that the disputed premises was transferred to the appellant by operation of law the respondent No,1 who was in possession of the said premises became the tenant of the appellant. Once the relationship of landlord and tenant is established the question of bar of limitation does not arise. Every default gives a cause of action. Further, they moment a landlord requires the premises for his bona fide need and occupation cause of action arises, and he can file an application for ejectment irrespective of the period of occupation by the tenant. tenant has a permissive possession, and therefore, question of adverse possession does not arise.
3. ' Mr. Maroof Ali Khan the learned counsel for the appellant has contended that after the appellant has been held to be the owner of the premises as the respondent No,1 was in occupation before the transfer by the Settlement Authorities, he became the statutory tenant of the premises.
4. ' Mr. Zaheeruddin Khan the learned counsel for the respondent contended that the respondent is not residing in the house which has been purchased by the appellant, and therefore, the question of his becoming a tenant does not arise. The dispute between the parties, therefore, revolves round the identity of the property. The appellant has produced P.T.D. in which property number mentioned above has been transferred to him. The accommodation available in the premises has also been sufficiently established from the P.T.D. as well as from the order of the Deputy Settlement Commissioner, dated 28-2-1974 in which the name of the building has been mentioned. This order is based on a report of the Inspector, dated 2-2-1974 which is part of Exh.31. It is an admitted position that on the ground floor of the premises, the appellant is residing whereas the first floor is occupied by the respondent No,1. There are other tenements in the same building which are occupied by other persons, whom the appellant claims to be his tenant. There is nothing on record to show that all those persons who are occupying different tenements in the same building have challenged the title or transfer of the appellant. The respondent claims that tenement in his occupation is not a part of the property transferred to the respondent. In view of the P.T.D. and the documents produced by the appellant, the respondent was duty bound to have produced such material evidence to show that it was neither auctioned nor transferred to the appellant. If the respondent claims the property to be his own property or of any other person, then he could have produced evidence to show in what manner the property was purchased or occupied by him or other persons. The property seems to have been surveyed and number has been assigned to it, but there is nothing on record to show that the premises occupied by the respondent bears a different survey number. The learned counsel for the respondent has referred to the averment made in the application, where it has been stated that there are 8 tenements in the premises, one of which is occupied by him. In his evidence he has stated that he is receiving rent from eight houses. Merely by this discrepancy the respondent cannot establish that the premises in his occupation does not fall within the premises transferred to the appellant.
5. ' Mr. Zaheeruddin Khan, the learned counsel for the respondent also referred to a report (Exh.24-A) of the Settlement Inspector, dated 19-10-1971 in which the name of the persons who are stated to be in occupation have been mentioned, but the name of the respondent No,1 does not find place in it. The learned counsel contends that if the respondent No,1 would have been in occupation of any part of the premises transferred to the appellant his name would have appeared in it. A perusal of the report makes it clear that it was prepared on the claim of certain persons occupying the premises for transfer of the property and the names of such persons making the claim on the premises have been mentioned in the report. It is possible that the respondent may not have tiled his claim in respect of the property, and therefore, genuinely his name does not appear in the list.
6. From these facts I am convinced that the respondent is occupying the premises which is a part and parcel of the building transferred to the appellant. The question arises whether he is a tenant and has defaulted in payment of rent?
7. ' Mr. Maroof All Khan the learned counsel for the appellant has referred to the two notices, dated 19- 7-1965 and 20-3-1975 purported to notice under section 30 issued by the appellant. In the first notice only intimation of transfer has been given, and the respondent was called upon to pay the rent, but no rate of rent has been stated. In the second notice the rate of rent has been mentioned as Rs,
125. The appellant's case is that both these notices were served, but no reply was sent, nor any payment was made by the respondent No,1. In support of this claim, the appellant has produced two postal acknowledgment receipts which are alleged to bear the signatures of the respondent. The respondent has denied these signatures and the learned Controller after comparing them with the admitted signature of the respondent came to the conclusion that signatures on the acknowledgment receipt do not resemble with the signature of the respondent No,1, and therefore, his finding is that no notice has been served.
8. ' Mr. Maroof Ali Khan the learned counsel for the appellant contended that in view of section 114 of the Evidence Act, section 27 of the General Clauses Act and section 3 of the Post Office Act the presumption is that a letter properly addressed and posted has been delivered to the addressee.
9. In this regard the learned counsel also referred to PLD 1965 Lah.
726. It is correct that if a letter is proved to have been posted and addressed correctly to the addressee in the normal course the presumption will be that it has been delivered to the .addressee, but such presumption is always rebuttable. In the present case in support of his claim the appellant has produced two receipts. Therefore, the question arises whether these receipts were signed by the respondent. The respondent has denied his signet on the receipt, and therefore, the burden is on the appellant to establish that as a matter of fact these receipts were signed by the respondent. The appellant should have examined the postman to show that the receipt was signed by the respondent, but no such evidence has been produced. The learned Controller has availed of the procedure provided under section 73 of the Evidence Act, and has noted the difference between the admitted and disputed signatures. I have also examined these receipts and compared with the respondent's signatures on Vakalatnama, affidavit, and written statement, and find that they differ from the admitted signatures. In these circumstances, the finding of the learned Controller that these notices were not served is correct and unexceptionable.
10. Faced with this situation the learned counsel for the appellant contended that after the repeal of Settlement Laws in 1974 no notice under section 30 was necessary, therefore, the application was maintainable. The contention of the learned counsel to the extent that after the repeal of Settlement Laws no notice under section 30 was necessary is correct. But the question arises whether in the absence of any notice the tenant can be termed as a defaulter. No notice has been served on the respondent calling upon him to pay the rent. In this situation as the transfer was made on 30-6-1965 section 13-A of the West Pakistan Urban Rent Restriction Ordinance will come into play which requires a landlord to serve a notice intimating him about the transfer and if the rent is paid within one month of the service of notice, he will not be deemed to be a defaulter. As no notice has been served on the respondent he cannot be termed as a defaulter.
11. The next question is about the bona fide use and occupation. The learned counsel for the appellant has feebly pressed this ground. He only contended that the appellant wants to bring his family from Karachi to Kandiaro, but he has not stated the number of family members, the pressing need, the accommodation in his possession, and has not explained in what manner the existing premises in his possession is not sufficient to cater his need. In the circumstances, the learned Controller has rightly decided this issue. No other point has been pressed. Consequently the appeal is dismissed.