The dispute in this case is about a room in Building No.S/E-9-R-54, Brandreth Road, Lahore which is in possession of the appellant. This building was an evacuee property portions of which were transferred to various persons including the grand father of the appellants and the respondent. A PTO in regard to the portion transferred to the respondents were issued to them on the 26th January, 1960. It appears that there was some dispute about the actual demarcation of the portions transferred to one party or the other. On account of this, such a demarcation was held by the Deputy Settlement Commissioner in March, 1963 (vide order EX.A.1). He made it clear in it that Abdul Haq respondent was a transferee of a shop consisting of three rooms while a three room shop was transferred to Jan Muhammad grand father of the appellants. Since the shop of the respondent was bigger than that of Jan Muhammad the rental value for the purpose of assessing the price of the property was fixed at Rs.20 per month in case of portion transferred to Abdul Haq and Rs.l7 per month in the case of other portion transferred to the grant father of the appellants.
Thereafter, a P.T.D. Ex.A.5 was issued in favour of the respondent The respondent admittedly served a notice dated the 19th September, 1966 (Ex.A.4) upon Jan Muhammad, but since no rent was paid despite this notice he filed an application for his ejectment on the ground of default on the 5th January 1967.
2. This application was contested by Jan Muhammad mainly on the ground of want of relationship of landlord and tenant between the parties since the case of Jan Muhammad was that the room in dispute had been transferred to him rather than the respondent. It was, therefore, alleged that the respondent was the transferee of only the portion in his actual possession. The learned Rent Controller framed the following issues:-
(1) Whether the relationship of landlord and tenant exists between the parties ?
(2) Whether the notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 served on the respondent is valid ?
Both these issues were decided against Jan Muhammad by an order dated the 25th May, 1967. The same day an order as required by section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 was passed directing Jan Muhammad to deposit arrears of rent from the 26th January, 1960 to the 30th April, 1967, at the rate of Rs.13 per month amounting in all to Rs.975 by the 24th June, 1967, and also to continue depositing the monthly rent before the 15th of each succeeding month.
3. This order was challenged by Jan Muhammad before the District Judge who allowed the appeal on a finding that there was no relationship of landlord and tenant between the parties. He, therefore, set aside the order of the Rent Controller on the 31st October. 1967
4. The respondent filed S.A.O No.402 of 1967 in the High Court which was allowed on the 9th December, 1974. The issue of relationship of landlord and tenant between the parties was decided in favour of the respondent; and as a result of the finding the case was directed to be sent back to the Rent Controller for further proceedings in accordance with law
5. Since Jan Muhammad died during the pendency of the appeal before the High Court. Civil Petition for Special Leave-to Appeal No.282 of 1975 was filed by tile appellants which was dismissed on tile 21st June, 1976. It was held that in view of tile law laid down in Ibrahim v. Muhammad Hussain PLD 1975 SC 457 no appeal was competent under section 15 either before the District Judge against the interim order passed by the Rent Controller, nor such an appeal was competent before the High Court. Consequently, the petition was also incompetent. The effect of the observation of their Lordships of the Supreme Court is that the appellate order of the District Judge as well as this Court should be treated as a nullity.
6. During the pendency of the Petition for Special Leave to Appeal, the Kent Controller struck off the defence of the appellants on account of non---compliance with the order passed under section 13(6) and the appellants were ordered to be evicted from the room in dispute.
7. An appeal was filed against the order of the Rent Controller by the appellants. It was dismissed by the learned Additional District Judge on 30th July, 1977 on a clear finding of non-compliance with the order of the Rent Controller passed under section 13(6).
8. It was urged before the learned Additional District Judge that he should give a finding on the question of relationship of landlord and tenant between the parties but he declined to do so on the ground that he was bound by the order of the High Court which remained in the field after the dismissal of the Petition for Special Leave to Appeal.
9. The learned counsel for the appellants first disputed the correctness of this finding and I am in complete agreement with him that since the effect of the order of the Supreme Court was that the order of the High Court as well as the order of the District Judge was incompetent, the question of relationship of landlord and tenant between the parties was still open and the finding of the learned Rent Controller could be challenged in appeal before the learned Additional District Judge.
In view of this, I have gone through the record carefully and heard the learned counsel for the appellants.
10. I have already made a reference to the demarcation order Ex.A.1. There is another document Ex.
A.2 a certified copy of the site plan prepared at the time of demarcation. The other documents are Ex.A. 5 a P.T.D. Dated 20th January, 1906, and Ex.A. 4 a notice dated the 19th September, 1966, which was admitted by Jan Muhammad to have been served upon him not only in the written statement but also in the statement of the counsel dated the 24th May, 1967.
11. It is clear from the documents ExA. 1 and Ex. A 2 that the property in dispute stands transferred to the respondent. This was not contested by the learned counsel for the appellants but he made several submissions to challenge the validity of Ex.A1: He submitted that originally the respondent was transferred only the portion of the shop in his possession and consequently the order of demarcation can be treated to bean order passed in review by the Deputy Settlement Commissioner, a power which could not be exercised by him as such the said demarcation order should be treated to be a nullity.
12. Since the transfer order and the P.T.O are not exhibited on the record the learned counsel relied upon P.T.D. Ex. A.5 in support of his argument that only the portion in his possession was transferred to the respondent.
13. There is no substance in the argument of the learned counsel. The appellants have not even filed the order of transfer passed in favour of Jan Muhammad or the necessary documents of transfer issued in his favour. This argument that only the portion of the shop in actual possession of the respondent was transferred to him is without any basis.
14. The reliance on Ex. A.5 is misconceived in the presence of the earlierorder Ex-A. L It is admitted that the only shop where the business is being carried on is in possession of Abdul Haq respondent.
In these circumstances, the words "shop in possession" do not mean that whatever was not in actual possession of the respondent had never been transferred to him. As stated abode, this particular plea has been proved to be incorrect by the demarcation order.
15. The learned counsel argued that the appellant's predecessor had not been given an opportunity of being heard before the passing of the order Ex. A.1. It may be so but it is proved from Ex.A.4 that on the 19th September, 1966, the factum of this demarcation had been brought to his knowledge and if he had any grievance against it he would certainly have challenged that order by way of an appeal before the higher Settlement Authority. The fact that this course was not adopted goes to prove that the appellants' predecessor did not feel aggrieved against the order of demarcation which must have been in accordance with the actual transfer orders passed in favour of the appellants' predecessor and the respondent. This is a case in which there is ample evidence to prove beyond any shadow of doubt the transfer of the property in dispute in favour of the respondent while no documentary evidence in rebuttal has been produced. In my view, therefore, the finding of the learned Rent Controller about the relationship of landlord and tenant was unexceptionable.
16. The finding on the issue about the service of notice under section 30 was not challenged and it could not have been challenged because there appears to be no defect in the notice Ex. A.4 which, as stated above has been admittedly served upon the predecessor of the appellants.
17. The learned counsel lastly argued that the order of deposit of rent of more than three years prior to the institution of the application for ejectment was not warranted by law since the Rent Controller could pass only an order of deposit for a period of three years. He referred to Ashfaq-ur- Rehman v. Muhammad Afzal PLD 1968 SC. 230 in this connection.
18. The argument is correct. The Rent Controller could have passed only an order for deposit of rent for a period of three years. But in this case the order of ejectment is justifiable on the ground that this is not the appellants' case that any rent had been paid by them. If once it is held that there was relationship of landlord and tenant between the parties and the notice under section 30 served by Jan Muhammad was also valid, the question of default must be decided in favour of the respondent: In view of this, the appellants are liable to be ejected in any case. The order of ejectment is, therefore, maintained on this ground.
19. The appeal is without force and is dismissed with costs.