1. ' This appeal has arisen from the order of Senior Civil Judge and Rent Controller, Mehar, dated 25=4-1982, whereby the ejectment application filed by Abdur Rashid, predecessor-in-interest of the respondents, was allowed and Bagh Ali, predecessor-in-interest of appellants 1(a) to 1(d) and other two appellants were directed to vacate the premises in dispute within one month of the order.
2. ' The dispute between the parties relates to a building bearing No,C-363 which situates in Khairpur Nathan Shah, District Dadu. The said building was transferred to Abdur Rashid, the predecessor- ininterest of the respondents by Settlement Authorities and P.T.D. Was issued in his favour. The case of the respondents is that subsequent to the transfer of the building in favour of their aforesaid ancestor, the appellants took over possession of the building from previous occupants thereof. The said transferee/landlord demanded rent from the appellants but they in spite of service of notice on them on 24-10-1975 did not make the payment. It, was also alleged against the appellants that they had caused damage to the disputed proper y by removing some costly materials. On the above two grounds the said transferee landlord sought ejectment of the appellants from the disputed premises.
3. ' Bagh Ali, the predecessor-in-interest of appellants 1(a) to 1(d) and Merajuddin contested the ejectment application. The third apponent Hameed son of Bagh Ali was, however, made ex parte.
4. The plea taken by the contesting opponents was that they were unaware of the transfer of the disputed building to the above transferee. Abdur Rashid until notice of ejectment application was served on them. They denied the allegation that they avoided to pay the rent, as according to them, it was never demanded from them. They also denied having caused any damage to the disputed property. According to them they have been occupying the disputed premises for 25 years.
5. ' The learned Rent Controller after considering the evidence led by the parties allowed the ejectment application on the ground of default, deciding the issue relating to damage against the respondents.
6. ' After hearing the arguments of the learned counsel for the parties, the appeal was dismissed with no order as to costs by short order, dated 22-12-1985. Following are the reasons in support of the said order.
7. ' The learned counsel for the appellants made following submissions:-
(1) That the appellants being in possession of the disputed premises at the time of its transfer to Abdur Rashid, were entitled to notice under section 30 of Displaced Persons (Rehabilitation and Compensation) Act, 1958 but the same was not given to them.
8. ' That the appellants are in occupation of upper floor of the building which has not been transferred to the said Abdur Rashid and as such the ejectment application filed by him is not competent. _
(3) That Bagh Ali, the predecessor-in-interest of the appellants 1(a) to 1(d) was dead at the time of announcement of the impugned Judgment and, therefore, decision of the case against the dead person was bad in law.
9. As regards notice under section 30 of the said Act, learne Rent Controller has rejected the argument for good reasons. No doubt the appellants entered into the possession of the disputed premise prior to its transfer in favour of Abdur Rashid. Accordingly their contention is that they were entitled to notice under section 30 of th said Act. The ejectment application was filed on 29-1-1976, much afte the repeal of the said Act. The learned Rent Controller was, therefore, right in holding that in such a case notice under section 30 was not necessary.
10. ' Taking up the second argument of the learned counsel for the appellants, it may be noticed that no such plea has been taken by the appellants in their written statement. They have not even casually mentioned in their written statement that they are occupying the upper floor which has not been transferred to Abdur Rashid. If that had been the case, they would have surely taken such plea that would have even denied the relationship of landlord and tenant between them and the respondents. It is an admitted position that the upper floor does not bear separate survey numbers. Moreover it is not denied that the P.T.D. Under which the disputed premises was transferred to Abdur Rashid does not indicate that the premises transferred to him does not include the upper portion. It is also not shown that in custodian office the upper portion and ground floor were treated as separate houses bearing separate number. The appellants have also not proved this fact from the entries made in the mutation record. The learned counsel for the appellants has merely laid emphasis on the-evidencne of Ghulam Nabi, Clerk of Settlement Office.
11. He has produced a true copy of Inquiry Form which, according to him, relates to only ground floor as there was separate Inquiry Form for first and second floors. He has, however, not produced that Inquiry Form. It is, however, admitted by him that in Inquiry Form there is some over-writing in column of accommodation. It is also admitted by him that in C.S.C. Register there is no mention of upper storey being separate. If the inquiry made by the Custodian Office in respect of the disputed premises had revealed that upper and lower portions of the building had separate existence, they would have surely been assigned separate numbers and transferred separately. The fact that until the office clerk came to give evidence on 21-3-1982, the upper portion was still available for transfer belies the plea of separate existence of the two portions of the building. The learned counsel for the appellants referred to the application form submitted by the appellants for transfer of the upper portion of the house. First of all the application form (N.0 .H . Form) submitted by the appellants is shown to have been made on 31-10-1966. Since the appellants have been in possession of the upper storey and had even applied for its transfer, there was no reason why it should not have been transferred to them if the same had a separate existence and was available for transfer. The fact that they had made' application for transfer of the upper storey nearly twenty years ago and yet the same has not been transferred to them only shows that the plea of that storey being separate from rest of the house has no truth in it. It is for the first time that the appellant Merajuddin in his affidavit-inevidence stated that the applicant (Abdur Rashid) is the owner of only ground floor. Nevertheless he has added in the same breath that the P.T.D. Which has been issued in respect of property bearing No, C-363 is silent in this regard. It is admitted on behalf of the appellants that they came to know about the transfer of the disputed premises to Abdur Rashid only after the notice was served on them. Thus, they were informed about the transfer by notice given to them by respondents. It is an admitted position that not a single paisa has been paid by the appellants to the respondents as rent in respect of the disputed premises. The appellant's only plea in this regard is that the rent was never demanded. This is obviously inconsistent with their case set up by appellant Merajuddin in his affidavit-in-evidence that the upper storey in their occupation has not been transferred to Abdur Rashid suggesting thereby that the respondents are not entitled to demand any rent from them. After giving my best thought to the material available on record and the arguments addressed at the Bar, I am of the view that the learned Rent Controller has come to the correct conclusion that upper storey in possession of the appellants is part and parcel of the building bearing No,C-363 which has been wholly transferred to Abdur Rashid. Since the appellants have not paid any rent, they have committed default for which they are liable to eviction.
12. ' The last argument of the learned counsel for the appellants was that the learned Rent Controller has given his decision against the dead person. According to the learned counsel, Bagh Ali, predecessorin-interest of appellants 1(a) to 1(d) was dead at the time of announcement of impugned Judgment. This fact, is, however, controverted by the learned counsel for the respondents. There is no independent evidence to prove that Bagh All had died before announcement of the impugned judgment. It is admitted by the learned counsel for the appellants that the point relating to Bagh Ali's death was not agitated in the Court of learned Rent Controller. If Bagh Ali had died during the pendency of ejectment proceedings in the Rent Controller's Court, the appellants themselves would have taken steps for substituting his L/Rs, but no such move was admittedly made by them when the case was still pending in the lower Court. Again when appeal was filed for the first time on 26-5-1982 Bagh Ali was shown as one of the two appellants, the other appellant being Merajuddin. It was subsequently that in the amended memo. Of appeal, that appellant Bagh Ali was substituted by his L/Rs, the respondents 1(a) to 1(d). In these circumstances, it is difficult to hold that Bagh All was not alive at the time of announcement of impugned judgment and as such the argument of the learned counsel for the appellants in this connection has no force.
13. ' In view of the above discussion, the appeal was dismissed as stated above.