' This is a Revision Application under section 25 of the Provincial Small Causes Court Act hereinafter referred to as "the Act".
2. The facts leading to this Revision Application are that on 8-7-1976 the applicant filed a Distress Warrant Application bearing No. 178 of 1976 under section 27-A of the Act for recovery of rent of Rs.
1,750 due against the respondent for five months from 21-2-1976 to 21-7-1976, at the rate of Rs. 350 per month, in respect of the ground floor of Bungalow No. 37-B/2, P.E.C.H.S., Karachi.
3. The learned Judge of the Small Causes Court dismissed the said application by his order, dated 12-8-1976 which is reproduced below:- "Heard the Advocates for parties. It is admitted position that the property has been acquired by the Government and even award has been given. The proceedings regarding compensation only are pending. As such the applicant ceases to be owner of the property. Advocate for applicant relies on PLD 1955/570/573, (sic) which is not applicable to the facts. D.W. is dismissed."
4. Mr. Badrudduja, learned counsel for the applicant contends that the impugned order is illegal inasmuch as the learned Judge, while passing the impugned order, has not taken note of section 16 of the Land Acquisition Act, 1894 which reads as under:- "16. When the Collector has made an award under section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government free from all encumbrances."
5 It is submitted by him that so long as the possession of the acquired property has not been taken over by the competent authority, the acquired property does not vest absolutely in the Government and the right, title and interest of the original owner of the acquired property continues as before. Reliance was placed on a Full Bench decision of the Patna High Court (India) reported as State of Bihar v. Dr. G.H. Grant and another AIR 1960 Pat.
382.
6. In the Patna case the following question was referred for the decision of the Full Bench:- "In a proceeding under the Land Acquisition Act, does title to the land pass to the State as soon as award under section 11 is made and filed under section 12 or is it deferred till possession is taken under section 16 of the Act?"
' This question was answered in the following words:- "In a proceeding under the Land Acquisition Act; title to the land does not pass to the State as soon as award under section 11 is made and filed under section 12, but it is deferred till possession is taken under section 16 of the Act."
7. The submission of the learned counsel is fully supported by the above-cited case which finds further support from two other cases of Indian Jurisdiction reported as Assam Railways and Trading Co. Ltd. v. Union of India and North Eastern Railway AIR 1965 Assam 12; Vidya Sagar v. Union of India and others AIR 1980 Delhi 73 as also referred,to by him. It is, therefore; held that the owner of a property requisitioned continues to be its owner till possession thereof is taken by the competent authority whereupon the owner shall be divested of his rights, title and interest of the property and it shall vest absolutely in the Government.
8. There is also .a Division Bench decision of our Lahore High Court reported as Mst. Sardar Begum v.
Lahore Improvement Trust, Lahore and 3 others PLD 1972 Lah.
458. In that case at page 470 it has been held as under:- "The owner does not lose his title in the property on the announcement of the Award and it continues to remain vested in him till such time as the possession of the property is taken under section 16 which provides "When the Collector has made an award under section 11 he may take possession of the land which shall thereupon vest absolutely in the Government free from all encumbrances."
9. Mr. Z.U. Ahmad, learned counsel for the respondent, however, submitted only that the date of taking possession of the property in question by the Government is February, 1976. In this respect, he invited my attention to a copy of deposition of the applicant in Reference 5 of 1976 in this Court filed by him alongwith the Objections in respect of the Review Application No. 1 of 1977 filed by the present applicant in this Revision. He, therefore, submitted that the matter may be remanded to the lower Court to determine the actual date of possession. It will not be out of context to mention here that the above Revision Application had been earlier dismissed summarily and was admitted after the applicant filed a Review Application, referred to above.
10. It is true that the date as mentioned in the depositions made by the applicant in Reference 5 of 1976 in this Court on the original side in respect of the Award (which has been disposed of only last month) the applicant appears to have stated that "in February, 1976 the possession of this house was taken from us".
11. On the ether hand, Mr. Badrudduja invites my attention to "the Reply of the Objections" filed by him, and referred to the statement made in the Affidavit by the respondent himself that "the applicant vacated his portion on 22-2-1977 and he (respondent) vacated the portion in his occupation on 21-2-1977 and surrendered possession of the property in question to the Government of Sind." Besides, he refers to the copy of notice, dated 21st December, 1976 issued by the Office of Assistant Commissioner, Karachi calling upon the applicant to hand over the vacant possession of the premises in question within three days. There is also a certificate of handing over and taking over possession of the property in question duly signed by the appellant on the one hand and two Government officials, namely the Land Acquisition Surveyor and the Assistant Engineer, on the other, which verifies the fact that the possession was handed over to and received by the Government on 22-2-1977. In view of this documentary evidence and the respondent's own admission on affidavit, in the Court of Small Causes in the D.W. proceedings, referred to above, I agree with the submission of Mr. Badrudduja that there seems to be a clerical mistake in the deposition of the applicant wherein February, 1976 instead of February, 1977 has been recorded.
There is, therefore, no necessity for remanding the case to the lower Court. The possession of the premises in question having been taken by the Government in February, 1977 and the outstanding rent having been claimed by the appellant from the respondent in respect of the premises for a period from 21-2-1976 to 21-7-1976, during which the respondent was a tenant and in possession of the premises in question, the applicant is entitled to recover rent from the respondent. The order of the learned Judge Small Causes Court is, therefore, illegal and set aside.
7. In the result the Revision Application is accepted but with no order as to costs.