Messrs KHAWAJA AUTO CARS LIMITED vs MUHAMMAD YOUSUF And Other

ZAFFAR HUSSAIN MIRZA, J.-----This appeal by leave of this Court arises out of Suit No.267 of 1968, which was instituted in the Court of the Civil Judge, at Karachi by M/s. Khawaja Auto Cars Limited a company registered under the Companies Act through its Managing Director Ramzan Khan, the appellants herein, against the respondents seeking a decree for a mandatory injunction directing the respondents "to remove the platform and obstruction in front of the gate and passage of compound, and godowns and open the gate forthwith restoring to its original condition". A further prayer for prohibitory permanent injunction against the respondents was also sought to restrain them "from further blocking the gate and passage and to interfere with the free enjoyment of legal rights of the plaintiffs".

The dispute in the suit relates to the premises consisting of the entire ground floor with compound of the building erected on Plot No.31/5, Survey Sheet No.PR 2, in the Preedy Quarters, Victoria Road, Karachi. The case of the appellants was that the suit property was purchased by the respondents from the Settlement and Rehabilitation Department, Government of Pakistan, Karachi, and therefore, they were the landlords of the same, whereas the appellants claimed to be the statutory tenants in respect of the same. Giving the background of the facts leading to their acquisition of the rights of statutory tenancy, the appellants pleaded that the suit premises was purchased alongwith the running business by the said Managing Director of the appellants/company on 30th October, 1947, on the terms and conditions reduced into writing in an agreement of the same date entered between Motiram Kerplani of Krips Auto Mobile Company and Ramzan Khan son of Raja Khan on the same terms on which the property was held by the former from the landlords of the building. It was averred that the property comprising the premises in dispute was subsequently allotted in favour of Ramzan Khan on 19th May, 1952. The cause of action for filing the suit described in the plaint was that the respondents blocked the passage and entrance to the compound and godowns being used since 1947 by the appellants.

The respondents resisted the suit and denied the claim of the appellants of being statutory tenants of premises in dispute and asserted that Muhammad Ramzan Khan was the statutory tenant of the defendants in the said premises. Some other pleas were also raised but it is not necessary to refer to them. The legal plea raised by the respondents was that the appellants had no locus standi to institute the suit.

The main controversy between the parties centred round the question whether the appellants are the statutory tenants of the suit premises which was framed as the first issue by the trial Court.

Muhammad Ramzan Khan the Managing Director of the appellant/company himself appeared in evidence and has recounted the antecedent facts whereby he had come into possession of the premises. He deposed that when the running concern was purchased from the Hindu owner it was purchased by the partnership concern in which he was a partner of Khawaja Auto but he had executed the agreement in his personal capacity. Subsequently in 1956, the concern was incorporated as a company. The trial Court held on the first issue that as the appellants are a limited company with Ramzan Khan as its Managing Director, the said company is a distinct entity from Ramzan Khan who had acquired the tenancy rights under the agreement Ex.P.W./1 and in whose favour the allotment order was issued by the Rehabilitation Authorities. From these facts the learned trial Court concluded that the appellants cannot claim to be the tenants and mere acceptance of rent by the landlord did not have the effect of creating tenancy in their favour.

Accordingly the suit was dismissed by the IXth Civil Judge, 2nd Class, Karachi, by judgment, dated 18th August, 1969.

Being aggrieved the appellants went up in appeal but their appeal was dismissed by the Vth Additional District Judge, Karachi, vide judgment dated 7th August, 1978.

Still being dissatisfied the appellants ultimately challenged the judgments and decrees passed by the Courts below in a civil revision before the High Court of Sindh at Karachi, which was also dismissed by the judgment, dated 1st October, 1987.

Leave was granted in this case in order to examine inter alia, the contention that the Courts below had failed to appreciate that the appellants/company have been all along in undisputed possession of the premises ever since 2nd September, 1956, much before the target date viz., 20th December, 1958, and were in possession of the property within the meaning of section 2(6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and thus I tenants under the law.

Before adverting to the contentions and the arguments of the learned counsel for the parties, it will be useful to refer to the conclusions arrived at by the learned Single Judge in the High Court and the reasons that prevailed with him. It was urged before the learned Judge on behalf of the present appellants that they had acquired the tenancy rights under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act), because they were in possession of the premises since 1956, from the time when the appellants were incorporated as a company, therefore, they had the locus standi to file the suit. Referring to the evidence on the record learned Judge observed that there appears no dispute that Ram7an Khan was carrying on business in the premises under the name and style of Khawaja Auto Cars. He was, therefore, the tenant of the respondents in the year 1956. He subsequently converted his business into a limited company under the name and style of Khawaja Auto Cars Limited of which he was the Managing Director. On behalf of the respondents it was conceded that cheques for rent issued by the appellants/company were accepted but at no point of time, the appellants, were acknowledged as tenants, and therefore, tenancy rights cannot be claimed on the basis of the acceptance of rent cheques issued by the appellants. A further argument was advanced on behalf of the respondents that in any event the right of statutory tenancy under section 30 did not devolve upon the appellants by operation of law because their possession was not in terms of section 2(6) of the Act. Learned Single Judge accepted the argument advanced on behalf of the respondents and recorded his conclusion which is reproduced in his own words hereinunder:-- "It is thus clear that as the applicants claim to be the tenants by virtue of section 30 of the Act, they should have established that they are in possession of the premises in terms of section 2(6). Their claim is that they are in possession through their Managing Director who was Ramzan Khan at the time when the suit was filed. Independent of Ramzan's right the applicants have not filed any document to establish their claim. From the applicants' own assertion it is evident that their possession does not fall within the ambit of section 2(6)."

The alternate argument on behalf of the present appellants before the learned Single Judge was that as the rent was paid by the appellants through cheques which were accepted by the respondents, tenancy rights were created in their favour. This argument was also repelled by the learned Single Judge on the line of reasoning which appears from the following passage of the judgment:-------- "In this regard certain facts may be mentioned. Ramzan Khan was the tenant and carried on business under the name and style of Khawaja Auto Cars. He converted his business into a limited company in the year 1956 under the name and style Khawaja Auto Cars Limited. The contention of the respondents is that even after incorporation of the company, Ramzan Khan remained in possession and carried on the business. The learned counsel for the respondents has referred to the written statement filed by Ramzan Khan in Suit No.173 of 1964 in which he admitted that he was the tenant of the premises and that he was in possession of the premises. No assertion was made that Khawaja Auto Cars Limited are the tenants. In reply to a notice of the respondents, dated 20th April, 1964; Ramzan Khan asserted that he was in actual possession of the premises from the year 1947, and that he has changed the name of his business as Khawaja Auto Cars Limited. No plea was taken that the applicants are in possession and have become statutory or contractual tenant.

This shows that before the riling of the suit by the plaintiffs Ramzan Khan has been treated to be the tenant and in possession of the premises. In these circumstances the learned counsel for the respondents contended that mere occupation by the applicants and payment of rent through cheques will not confer any right of tenancy on them. The learned counsel referred to Boman Abadan Irani and others v. Jahangir J. Mobed and others (PLD 1960 Kar. 276) where it was observed that mere payment of rent by lessee or friend of lessee does not constitute sub-lease or assignment of lease. This judgment was challenged in appeal in Boman Abadan Irani v. Jahangir J.

Mobed (PLD 1967 Kar. 449) where Division Bench held that mere accepting cheques issued by the company could not signify consent to a sub-lease."

The final conclusion reached by the learned Judge was summed up in the following words:------ "From the facts and circumstances of this case it is apparent that the respondents had not signified their consent for assignment of lease or subletting or transfer of lease in favour of the applicants. It was Ramzan Khan who was the tenant and was treated as such. Merely because letters were written by the Accountant and rent was sent and accepted does not confirm that the respondents had consciously acknowledged the applicants as their tenant. As the applicants are not the tenant they had no right to file the suit."

Mr. S. Sharifuddin Pirzada has raised the following contentions:-----

(i) That the meaning and scope of the word `possession' in section 30 of the Act has not been properly construed by the learned Judge, in the light of the definition of the term `possession' in section 2(6) of the Act read with notification issued by the Central Government under the second proviso thereof.

(ii) That the learned Single Judge had erred in holding that acceptance of rent in the facts and circumstances of this case did not rate the tenancy in favour of the appellants.

(iii) That the learned Single Judge had erred in law in relying upon the written statement of Ramzan Khan in Suit No.173 of 1964 and the reply to the notice sent by the respondent on 20th April, 1964, as these two documents were not admissible in evidence and their contents could not be looked into.

In order to appreciate the argument of the learned counsel it will be advantageous to refer to the relevant part of section 30 of the Act which reads as follows:------ "Section 30. Protection of certain occupants.--(1) Where any person is in possession of any evacuee house or shop or has been declared on or before the twentieth day of December, 1958, 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 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) . .........................................................

(b). .........................................................

(2) .........................................................

(3) ..........................................................

(4). ..........................................................

Clause (6) of section 2 of the Act which defines the word "possession' reads as follows:-- `possession' means possession obtained in pursuance of an order passed on or before the twentieth day of December, 1958, by a Rehabilitation Authority or a Custodian or any other officer authorised or permitted by the Central or Provincial Government: Provided that if a question arises whether an officer was so authorised or permitted, decision of the Chief Settlement Commissioner in that behalf shall be final: 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:"

It may be pointed out that the second proviso to the definition of the term "possession" was inserted by Ordinance No.LIII of 1959 with effect from 28th September, 1959. In pursuance of the power conferred on the Central Government under the said second proviso Notification, dated 13th October, 1959, was issued which is in the following terms: "No.F.l. (27)/59-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 (XXVIII of 1958), the Central Government is pleased to direct that a claimant, a non-claimant 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 house or shop in pursuance of a anal 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 his occupation and, if he is a claimant, such amount is adjusted against his claim."th The consideration of the contentions raised on behalf of the appellants may now be taken up in seriatim. Referring to the first contention advanced on behalf of the appellants the question is whether the appellants as an incorporated company were in possession of the disputed premises within the meaning of section 30 of the Act. The grievance on behalf of the appellants was that the word "possession" as used in the said section 30 has not been properly construed in the light of the definition of the said term in section 2(6) of the Act read with the notification issued by the Central Government, dated 13th October, 1959. It as argued that the High Court was not justified in holding that the appellants were not in possession within the meaning of section 2(6) on the basis of Ayoob and another v. Masjid-e-Noman (1973 SCMR 604), the facts of which were distinguishable. In that case the appellants were claiming statutory tenancy, in respect of a building site, and the claim was rejected on the ground that section 30 of the Act extends protection to a person in possession of any evacuee house or shop and more importantly the case considered the definition of "possession" under section 2(6) with respect to the enacting part of those provisions without reference to the Central Government Notification, dated 13th October. 1959, issued under the second proviso to section 2(6) which extended the definition by a deeming provision to a person in unauthorized occupation since before the target date It may be pointed out that in this case the respondents admittedly purchased the property in dispute from the Settlement Department in the year, 1959. It is quite plain from the reading of section 30 that statutory tenancy is created by operation of law on the happening of the event of transfer of evacuee property of the nature described therein in favour of any person under the provisions of the Act. If, therefore, the premises in dispute were transferred in favour of the respondents in October, 1959, the extended meaning of possession as envisaged in the Notification, dated 13th October, 1959, would be directly attracted in this case if it is shown that the property comprising the premises was transferred in favour of the respondents after the date of the notification.

From the copies of the evidence on the record, all that appears is that the respondents had purchased the property in the year 1959. There appears nothing on the record to indicate as to on what date the transfer was actually effected in their favour by the Settlement Department.

However, reference has been made to a document placed on record (page 78 of the paper book) which is a photostat copy of a letter, dated 2nd December, 1959, by the Deputy Settlement Commissioner (Auction) addressed to (illegible) wherein it has been stated that the property was purchased by Muhammad Yousaf and others in public auction, which has been confirmed by the Chief Settlement Commissioner. Therefore, the letter advised that the rent may be paid to the auction-purchasers with effect from 13th November, 1959 (forenoon) the date on which the possession of the building had been handed over to the auction-purchaser. A copy of the names of tenants was also attached with regard to each tenement in the building to the auction purchasers for their information.

Mr. H.A. Rahmani, learned counsel for the respondents objected to the consideration of this document on the ground that this document was not produced in the evidence or exhibited in the proceedings of the suit but was produced in the ejectment proceedings between the parties. In the list attached with the documents the name "Mr. Ramzan Khan, Khawaja Auto Cars Limited", is shown as the tenant and allottee in respect of tenement G/1. However, this document also does not give the date of the transfer of the property, although rent has been said to be payable with effect from 30th November, 1959. The question is whether this document be relied upon for the purpose of deciding the legal question whether the extended meaning of the term "possession" can be applied in this case, and since the authenticity of the document has not been challenged and no argument was advanced that the notification was not applicable because the transfer had taken place on an earlier date, it will be reasonable to hold that the transfer was effected after the Notification, dated 13th October, 1959. Clearly the learned Judge in the High Court did not take into consideration the said notification, while determining the question as to the possession of the appellants in the premises and relied upon the case of Ayoob and another v. Masjid-e-Noman (1.973 SCMR 604), which was also decided without reference to the said notification. The submission to the extent that the definition of "possession" in section 2(6) was applied without reference to the notification is, therefore, well founded. However, on behalf of the appellants reliance was placed on three judgments which need to be considered, namely Muhammad Iqbal v.

Mehraj Din and another (PLD 1976 Lah. 831), Muhammad Moosa and others v. Shabbir Ahmad and another (1984 CLC 3227) and Barkat Ali v. Muhammad Sharif (PLD 1966 SC 817). The Lahore case was referred to show that the rule laid down in Ayoob's case was not applied to the case of premises raised on a plot of land which was transferred as a plot under the Settlement Scheme, but for purpose of section 30 was treated as a house. In this case also, view was taken that although Department transferred the property as open plot since at the time of transfer, permanent constructions were raised, and were being used as shop and house, they were held to be properties within the purview of section 30, whereby the relationship of landlord and tenant was created by the statute. In the case of Moosa from the Sindh High Court, similarly tenant had raised constructions over plot transferred to the landlord and was using them for commercial and residential purposes. The question whether tenancy right was created under section 30 of the Act, was decided in favour of the tenant. It was, however, held in this case that the connotation of the term "possession" under section 2(6) was different in scope from the said word used in section 30 because the former provision is intended to determine the eligibility of an applicant for transfer of a particular unit of property whereas 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". This construction was fortified by reference to section 30(3)(ii) of the Act where the word "possession" has been used and it was held that there it cannot be read as possession as defined in section 2(6) of the Act. Supreme Court cases of Barkat Ali cited by the learned counsel for the appellants is relevant for interpretation of the words "final order" in the Notification, dated 13th October, 1959. It was held in this case as under:-----

(i) `It is true that unless the occupation of a person falls within the definition of `possession', as extended by the notification in question, he would have no right to claim transfer of the property under the Schedule to the Act. An essential condition of entitlement under the Schedule is `possession'. It seems to me, however, that the idea behind the extended definition of `possession', contained in the notification, was to confer a benefit on those who were in undisputed occupation of the property before the twenty-first day of December, 1958, even though they held no allotment order in their favour. It would amount to taking away with one hand what is given by the other, if the notification is interpreted to mean that, although the person concerned may be in undisputed occupation of a part of the premises since before the relevant date, he could be defeated by another person in possession albeit a local, provided he relied on an allotment order. This does not appear to be in consonance with the scheme of the Act and the Schedule which evinces a distinct solicitude for claimants as against non-claimant displaced persons and locals.

(ii) The condition, mentioned in the notification, that there should be no person in existence holding a final order passed by a competent authority' entitling him to transfer of the property in question, may be intended to refer to such possible cases or it may even have been inserted therein by way of abundant caution. If the intention, as is suggested, was to protect the alleged rights of allottees alone, it is unintelligible why a simpler and a clearer formula could not have been adopted to achieve that result. It would have been sufficient to say in that case; `arid no other person is otherwise satisfied to the transfer of such a house or shop in pursuance of an allotment order passed by a competent authority before that date'. That would have removed all ambiguity from this clause and placed the matter beyond doubt."

From the cases cited on behalf of the appellants it would appear that the question whether the appellants were in possession of the disputed premises at the time of their transfer in favour of the respondents, can either be decided in the light of the definition of the term "possession" under section 2(6) as a term of art or the said term in its ordinary dictionary meaning. It was urged on behalf of the respondents that possession of the appellants was not in terms of section 2(6) of the Act and that the notification, dated 13th October, 1959, issued under the second proviso to the aforesaid provisions was not applicable to the case of the appellants. The submission was that the second proviso to section 2(6) has to be construed as a proviso in the light of the enacting provisions of section 2, clause (6), so as to conform with the principles postulated in this behalf by this Court in M/s. East and West Steamship Company v. Pakistan (PLD 1958 SC 41), as under: "In principle also, the words of a proviso are to be construed strictly and confined to the special case which its words enact; it would be wrong to construe those words as being co-extensive with those used in the purview, particularly where the effect might be of bringing about a repeal of the purview."

The sum and substance of the argument of the learned counsel was that the second proviso was designed to empower the Central Government for the benefit of a "class" or "classes" of persons who had not obtained possession in the manner prescribed by the enacting provisions, i.e. According to the learned counsel, in pursuance of an allotment order issued before the 28th December, 1958. He submitted that this proviso by use of the word "class or classes" of persons actually refers to paras. (1), (2) and (3) of the Schedule to the Act, and therefore, this proviso and the notification issued thereunder only related to possession for purpose of transfer. In this behalf he further referred to the use of the words "a claimant, a non-claimant displaced persons or a local" and the words "and no other person is otherwise entitled to the transfer of such house or shop in pursuance of a final order passed by a competent authority before that day", in the notification, dated 13th October, 1959. On this basis it was submitted that although the main provisions of section 2(6) are applicable for the purpose of section 30 of the Act but the notification was not relevant in the context of section 30. He also referred to The Construction of Statutes by Crawford, and relied on the commentary with regard to the construction of proviso, particularly relying on the rule referred to by the author that since the function of the proviso is not to repeal the main provisions but to limit their application no proviso should be so construed as to destroy those provisions.

After careful consideration of the arguments advanced by the learned counsel for the parties, it may be stated that it is difficult to accept the construction sought to be placed by Mr. HA. Rehmani, on the enacting provisions and proviso in the manner canvassed by him. It is not possible to construe the enacting clause of the statute as applicable to the term "possession" for the purpose of section 30 but exclude the proviso from application to the said section or for that matter exclude the notification issued in exercise of power conferred by the said proviso from application to section 30. There is force in the contention of Mr. H.A. Rahmani that the language of the notification does indicate that the intention behind the notification was to relieve the three classes of persons, namely, claimants, non-claimants displaced persons or locals from the requirement of obtaining possession of a house or a shop in pursuance of an order passed by a competent authority before the target date by means of the deeming provisions of the notification for purposes of transfer of such properties. But Mr. S. Sharifuddin Pirzada, learned counsel for the appellants pointed out that the power conferred under the second proviso was exercisable in respect of possession for the purpose of the Act, as the language of the said proviso clearly shows. Therefore, it cannot be readily construed to be not applicable to section 30 which is a part to the Act. Similarly the notification also has expressly stipulated that the deeming provisions of the second proviso were being extended to the said class of persons "for the purpose of the aforesaid Act." In the same book referred to by Mr. H. A. Rahmani, the author has stated the general rule for the construction of a proviso thus:------ "As a general rule, however, the operation of a proviso should be confined to that clause or portion of the statute which directly precedes it in the statute. This position, as suggested in Clay 19 Center State Bank v. Mekevie (19 Fed. (2) 308), is in accord with the rules of grammatical construction: "Its grammatical and logical scope is confined to the subject-matter of the principle clause----- While it is sometimes used to introduce independent legislation, the presumption is that it is used in accordance with its primary purpose and refers only to the provision to which it is attached." , In view of the above it is not possible to hold that for the purpose of creation of statutory tenancy under section 30 the enacting provisions of clause (6) of section 2 will be applicable but the proviso will not be applicable, which will be confined to the provisions of the Act relating to transfer of properties from the compensation pool. The presumption is that the subject-matter of the enacting clause and the proviso is the, same. There are no compelling reasons to hold that the proviso is an independent enacting provision. However, as observed above it is possible to hold that the entire provisions of section 2(6) were intended to apply only in the context of provisions relating to transfer of properties under the Act and the word "possession" occurring in section 30 is not controlled by the definition clause contained in section 2(6). Indeed it was so held in Muhammad Moosa and others v. Shabbir Ahmad and another (1984 CLC 3227). But there are decisions to the contrary in which for the purpose of section 30 reference has been made to section 2(6) as for instance the case of Ayoob and another v. Masjid-e-Noman (1973 SCMR 604).

However, there is no authority on the proposition advanced by the learned counsel for the respondent that the second proviso only should be excluded from application to section 30.

It is not necessary to pursue this point any further, because the crucial question, if section 30 is controlled by section 2(6) as a whole, would be whether on the target date viz., 20th December, 1958, the appellants were in possession of the premises. Obviously if section 2(6) is not applicable to section 30, it would be sufficient for the appellants to show that on the date of the transfer in favour of the respondents, they were in occupation of the property.

It has been argued on behalf of the appellants, that on both these dates they were undisputedly in possession of the property. In this connection it would be pertinent to refer to the evidence on record. Ramzan Khan, the Managing Director of the appellants who was admittedly the allottee of the premises by virtue of an allotment order, dated 20th May, 1952, has in his evidence deposed that the appellants are the tenants of the premises. A suggestion was made to him in the cross- examination, which he has accepted to say that the limited company was incorporated in 1956, but before that a firm was running the concern in the premises. This witness has also stated, that he was partner of Khawaja Auto Cars at that time. The other witness on behalf of the appellants examined was Abdul Wahid, Accountant of the appellant-company. He has asserted that rent was being paid to the Custodian by Khawaja Auto Cars and subsequently to the respondents by means of cheques. He has produced acknowledgments signed by respondent No.2. He has also asserted that the respondents never objected to receiving the rent from the appellants. The only witness examined on behalf of the respondents was Muhammad Yousaf respondent No.1. He had no knowledge about the possession of the premises prior to 1959. He has only stated that they were informed that Ramzan Khan was their tenant. He has produced two documents which were written statement of Ramzan Khan in Suit No.173/64, and the reply to a notice on his behalf allegedly to the effect that he was the person in possession of the premises since the year 1947. The question of the admissibility of the statements made in these two documents will be considered a little later.

But for the present suffice it to say that respondent No.1 in his evidence has not asserted or produced any other document tending to show that the appellants were not in possession of the premises on the relevant dates mentioned above. On the contrary he has admitted that cheques were issued by the appellants, although signed by Ramzan Khan as Managing Director, which were received by them alongwith the letters. The letters produced in the evidence were clearly from the appellants forwarding the cheques of rent and were signed on behalf of the appellants by the Managing Director or the Accountant. On a preponderance of the evidence which is the rule of decision in civil cases, the appellants were able to prove that they were in possession on the crucial dates mentioned above. Even the learned Single Judge did not in clear terms hold that the appellants were not in possession, but only held that their possession was, through the Managing Director, Ramzan Khan, and therefore, it .Was not possession within the meaning of section 2(6), apparently referring to the enacting part of that provision and not to the notification, dated 13th October, 1959. In the view that has been taken of the true construction of section 2(6), it was essential for the learned Judge to refer to the notification, and as held by this Court in the case of Barkat Ali (supra) the obvious intention thereunder was to confer benefit on those who were in undisputed occupation of the property before 21st December, 1958, even though they held no allotment order in their favour. Learned counsel for the respondents vehemently contended that as the appellants were not in possession in pursuance of an allotment order before the target date, they cannot claim the benefit of statutory tenancy under section 30, as the allotment was in favour of Ramzan Khan. This, however, is not in consonance with the true construction of the extended meaning of the term "possession" by virtue of the notification as held in Barkat Ali's case. It was in pursuance of the aforesaid premises that the learned counsel for respondents further argued that the status of the appellants, put into possession of the premises by the allottee was that of mere licensees. Learned counsel relied on Afzal Mirza and others v. Ahmad Saeed Khan (1985 SCMR 1138) and Muhammad Sadiq v. Mir Ajam Khan etc. (1.978 SCMR 214) but these cases proceed on distinguishable facts with regard to the question of entitlement to transfer, between the allottee himself and the person claiming possession through him or as a partner. In the present case there is no rival claim between the allottee himself and the company of which he was himself the Managing Director. He himself acknowledges to have formed a limited company in 1956, obviously, therefore, he had put the company into possession long before the target date, and abandoned all claims to personal tenency. In such circumstances it is not for respondents, who were transferees to raise objection to the status of the appellants as regards their possession of the premises. It was also argued that the allotment order of Rannzan Khan was not modified so as to recognize the possession of the appellants as such. However, as already discussed this was not necessary. 1n somewhat similar circumstances, although in the context of transfer under the Settlement Scheme in Muhammad Anwar Khan v. The State and others (PLD 1967 Lah. 642), it was held that a person who was already in an unauthorized possession of the property and obtained an allotment order subsequently, can give up his stand on tic basis of allotment and rely upon possession as amplified in the notification of the Central Government, dated 13th October, 1959.

It now remains to examine whether the respondents could rely upon the so-called admissions in the written statement of Ramzan Khan in Suit No.173/64 and reply on his behalf to the notice given by respondents' Advocate, dated 4th May, 1964. In the first document reliance was placed on averments made in para.3 of the written statement filed by Ramzan Khan in the proceedings of another Suit No.173/64 to the effect that he was the tenant of the premises until the transfer of the same in favour of the respondents who also accepted him as their tenant. Similarly in the reply to the notice by his Advocate it was asserted that Ramzan Khan was in actual possession of the premises since 1947. It was urged on behalf of the appellants that both these documents cannot be looked into without confronting Ramzan Khan with the so-called contradictory statements as was required under section 145 of thef Evidence Act. He relied on Mst. Khair-ul-Nisa v. Malik Muhammad Ishaque (PLD 1972 SC 25) and Sikandar Hayat v. Fazal Karim (PLD 1971 SC 730).

In the first mentioned case this Court rejecting a written statement of the deceased-defendant from consideration observed:----- "Written statements cannot be the exhibits in the case without the person who filed the same being examined in the Court. The statements made in the written statement are not on oath. They are only verified, and therefore, they cannot be treated as evidence in the case."

Although Ramzan Khan was examined as a witness by the appellants this document was not got exhibited through him by proving his signature on the same or obtaining his admissions by confronting him with the document. Apparently the purpose for which the respondents relied upon these documents is to contradict the statement of Ramzan Khan on oath in the Court in the proceedings of this suit. This could only be done as held in the second case mentioned above by putting the document to the witness in cross-examination in order to contradict him. In the light of these two decisions, therefore, the two documents cannot be taken into account as legal evidence and used for any purpose. In view of these reasons and conclusions the appellants have successfully established that they were statutory tenants of the premises in dispute under section 30 of the Act on the date of the suit. As this case can be disposed of on the aforesaid point it is not necessary to consider the alternative plea taken by the appellants that they had acquired the right of tenancy by their acceptance as tenants by the respondents by accepting rent from them.

It was stated at the bar by the learned counsel for the appellants that the grievance of the appellants set out in the plaint is no longer a live issue between the parties but their right as tenants in the premises is very much a contentious issue between the parties. This statement was not contradicted on behalf of the respondents. I would, therefore, modify the relief and declare that the appellants are the statutory tenants of the premises in dispute. I would accordingly allow the appeal in these terms and decree the suit of the appellants granting them declaratory relief as above, with no order as to costs.

AJMAL MIAN, J.---I have had the advantage of reading the proposed judgment written by my learned brother Zaffar Hussain Mirza, J. With all due respects to his Lordship, I am unable to agree to the conclusion arrived at by his Lordship and, therefore, I intend to record my own reasons for taking a different view.

2. My learned brother has referred to the facts of the case in detail and the question on which leave has been granted and, therefore, it is not necessary to restate the same in detail. However, it will suffice to observe that Ramzan Khan son of Raja Khan on or about 30-10-1947 entered into an agreement of purchase with the one Motiram Kerplani, purchasing Krips Auto Mobile Company alongwith the tenancy of the suit premises. After some time, he started the business in the name of Khawaja Auto Cars. It appears that he obtained allotment of the suit premises on 19-5-1952 from the Rehabilitation Department (Ex.l/3) in his own name. It also appears that in 1956, he converted the firm Khawaja Auto Cars into a Limited Company, of which he became the Managing Director. In or about November, 1959', the respondents purchased the, building in which the suit premises are situated from the Settlement Department in a public auction. It further appears that the respondents also owned a plot of land adjacent to the building in question. When the respondents started raising construction on the adjacent plot, the appellants i.e. The Private Limited Company filed Suit No.145 of 1965 (New No.257 of 1968) in the Court of IVth Civil Judge, First Class, Karachi, on 26-1-1965 for a mandatory injunction on the basis of averment that they were the statutory tenants of the suit premises and that the respondents, by raising construction on the adjacent plot, were interfering with the appellants' right of enjoyment. The above suit was resisted by the respondents and inter alia it was pleaded that the appellants had no locus standi to file the suit, as the tenant of the suit premises was said Ramzan Khan: On the basis of the pleadings of the parties, the following issues were framed:-----

(1) Whether the plaintiffs are the statutory tenants of the suit premises?

(2) What is the accommodation in tenancy of the statutory tenants?

(3) Do the plaintiffs have any right of access from the rear side of the suit building?

(4) Whether proper court-fee has been paid?

(5) Relief.

3. In support of the suit, Ramzan Khan examined himself and P.W.2 S. Abdul Wahid, Accountant of the appellants-company, whereas respondent No.1 was examined on behalf of the respondents.

The learned trial Court, after hearing the arguments, recorded the following finding on above Issue No.1:----- "Issue No.1.---P.W.1 Ramzan Khan has produced the agreement Ex.P.W./1 which shows that tenancy rights had been purchased by Ramzan Raja Khan. Ex.P.W./3 is the allotment order in favour of Ramzan Raja Khan. But the present plaintiffs are Khawaja Auto Cars Ltd., which is a limited company with Ramzan Khan as its Managing Director. As held in PLD 1967 Karachi 449 a similar case, the present plaintiffs are a different person from Muhammad Ramzan and cannot claim to be the tenants and mere acceptance of rent by the landlords would not create tenancy in favour of the plaintiffs. The issue is answered in the negative."

In view of the above findings, the appellants' suit was dismissed by the judgment and decree dated 18-8-1969. Thereupon, the appellants filed Civil Appeal No.257 of 1969, but the same was dismissed by the learned Vth Additional District Judge, Karachi, by a judgment and decree dated 7-8-1978, whereby the above finding of the learned trial Court was concurred with inter alia by holding as follows:----- "6. It will be observed that Ex.l/4 which has been relied upon by the learned counsel for the appellant for his assertion that he was occupying the premises as a tenant was prepared after 1947 and more probably after June, 1950. In the column regarding particulars of occupation, of this document, Ramzan Khan s/o Raja Khan of Motor Works is shown to be occupant. Side by side name of Khawaja Auto Cars is also mentioned. This document does not show that Khawaja Auto Cars as distinct from Ram7an Khan was treated as tenant. At any rate the allotment order Ex.l/3 which was subsequently issued on 19-5-1952 shows that the allotment was obtained by Mr. Ramzan Khan s/o Raja Khan in his personal name, in spite of the fact that `Khawaja Auto Cars' was being run by him in the said premises in those days also. It is, therefore, clear that Ramzan Khan s/o Raja Khan did not divest himself of his rights under the allotment order. It would, therefore, be reasonable to presume that Ramzan Khan continued to be the tenant of the Custodian department. EX.P.W.1/1 shows that the tenancy rights were acquired by Ramzan Khan in his personal capacity. The learned trial Judge was, therefore, eminently right to hold that Khawaja Auto Cars Ltd. With Ramzan Khan as its Managing Director is different person from Muhammad Ramzan Khan and cannot claim itself to be the tenants of the respondent. Mere acceptance of rent by the landlord from the appellant No.1 would not create tenancy in favour of the appellant. The learned counsel for the appellant has candidly admitted that he does not claim any contractual tenancy with the respondent. This means that he does not attach much importance to the acceptance of rent from the appellant by the respondent:'

4. Against the above judgment and decree, the appellants filed Civil Revision No.354 of 1978, which was dismissed by a learned Single Judge of the High Court of Sindh at Karachi by his judgment dated 1-10-1987, whereby the above concurrent finding of the two Courts below was affirmed as follows:----- "From the facts and circumstances of this case it is apparent that the respondents had not signified their consent for assignment of lease or subletting or transfer of lease in favour of the applicants. It was Ramzan Khan who was the tenant and was treated as such. Merely because letters were written by the Accountant and rent was sent and accepted does not confirm that the respondents had consciously acknowledged the applicants as their tenants. As the applicants are not the tenants, they had no right to file the suit:"

5. In the above background of the facts leave to appeal was granted by this Court to consider inter alia the question, whether the Courts below have failed to appreciate that the appellant-company has been all along in an undisputed possession of the premises ever since 2-9-1956, much before the target date, namely, 20-12-1958, and was in possession of the property in the meaning of section 2(6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, hereinafter referred to as the Act, and thus were the tenants under the law.

6. From the plaint, the above-quoted issues framed in the suit, judgments of the Courts below, and the leave granting order, it is evident that the appellants had pleaded statutory tenancy and not contractual tenancy, which fact was even conceded by the learned counsel for the appellants before the learned first appellate Court. The only question which requires consideration is, as to whether the Courts below have wrongly held that the appellants have failed to prove their status as statutory tenants.

7. Mr. S. Sharifuddin Pirzada, learned counsel for the appellants in support of the appeal, has heavily relied upon the definition of the term "possession" given in section 2(6) of the Act read with notification dated 13-10-1959 issued thereunder by the Central Government and section 30 of the Act to contend that the appellants are the statutory tenants.

On the other hand, Mr. HA. Rahmani, learned counsel for the respondents, has urged that the statutory tenant was Ramzan Khan as has been held by the three Courts below and not the appellant and, therefore, the above appeal merits dismissal.

8. In order to appreciate the respective contentions of the parties, it may be pertinent to reproduce the definition of the term "possession" given in section 2(6) of the Act, section 30 of the Act, and the above notification dated 13-10-1959, which read as follows:-- "Definition of the term `Possession' under section 2 6 of the Act.-- `Possession'. --`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 that if a question arises whether an officer was so authorised or permitted the decision of the Chief Settlement Commissioner in that behalf shall be final: 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.

Sectio130 of the Act.---(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 (acknowledgment 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 of or injurious to the property; nor shall anything therein apply to the tenant of any house or shop, who 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.

(5)------- Omitted by virtue of Ordinance XIII of 1965.

(This sub-clause related to the transfer of properties to Jammu and Kashmir refugees)."

Notification No.F. 1.(27)x/59-SI, dated 13th October, 1959. "No.F.l., (27)/59-SI, 13th October 1959, (Gazette, Extraordinary, 26th 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 (XXVIII of 1958), the Central Government is pleased to direct that a claimant, a non-claimant 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 house 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 his occupation and, if he is a claimant, such amount is adjusted against his claim."

9. A perusal of he above-quoted definition of the term "possession" given in section 2(6) of the Act indicates that in order to constitute possession within the purview of the above clause, the possession must be obtained in pursuance of an order passed on or before 20th day of December, 1958, by Rehabilitation Authority or by any other officer authorised or permitted by the Central or Provincial Governments. It may also be noticed that the second proviso to the above clause empowers the Central Government by an order in writing to direct that a class or classes of such persons as have not obtained possession in the aforesaid manner, shall subject to such conditions as may be specified in the order, be deemed to be in possession for the purpose of this Act.

It may also be pointed out that pursuant to the above proviso, notification dated 13-10-1959 quoted hereinabove was issued which shows that the Central Government by the above notification directed that a claimant, a non---claimant 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 the conditions contained therein are met, namely:-

(i) he has been in undisputed occupation of the house or the shop since before the twenty-first day of December, 1958;

(ii) no other person is otherwise entitled to the transfer of such house or shop in pursuance of a final order passed by a competent authority before that day; and

(iii) the rent and other public dues in respect of such house or shop have been paid by the occupant from the date of his occupation and, if he is a claimant, such amount is adjusted against his claim.

10. It may be observed that section 30 of the Act seems to have been incorporated for the benefit of the persons in possession of any evacuee house or shop etc. Subsection (1) thereof provides that 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 the Act, then, notwithstanding anything contained in any other law such person 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 the payment of rent or otherwise on which he held it immediately before transfer. It may also be noticed that first proviso to the above subsection entitles a transferee to claim 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; whereas the second proviso to the above subsection provides protection to a person in possession of an evacuee house or shop against an ejectment for a period of six years and to a person in occupation of an industrial concern, or a cinema house or a printing house for a period of three years from the date of the transfer provided the notice of the transfer by the transferee is served within one month of such transfer by registered post (acknowledgment due). It may be pointed out that subsection (2) of above section 30 provides that if the notice of the transfer is not served by a I transferee upon the person in possession of any of the evacuee properties referred to hereinabove within one month's period, the above period of six years and three years was to be counted from the date of receipt of such notice.

It may also be noticed that subsection (3) entitles a transferee to obtain ejectment on the following grounds:-----

(i) non-payment or non-tender of rent within three months from the date of receipt of a notice of demand sent by the transferee under registered post (acknowledgment due);

(ii) transfer, subletting or otherwise parting with the possession of any of the evacuee properties; and

(iii) committing acts which are destructive or injurious to the property.

It may further be noticed that subsection (4) provides that on the expiry of the period referred to in above 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 law for the time being in force relating to such relationship.

11. It was vehemently contended by Mr. Sharifuddin Pirzada that in view of the above notification dated 13-10-1959, the appellants were not required to prove that they had obtained possession in pursuance of an order passed on or before 20th day of December, 1958, by Rehabilitation Authority or any other officer authorised or permitted by' the Central or Provincial Government, whereas Mr. H.A. Rehmani has urged that the above notification can be pressed into service by a claimant, a non-claimant displaced person or a local, for the purpose of applying for the transfer of an evacuee property and not by a person who may be using the evacuee property for establishing his statutory tenancy.

12. From the above-quoted notification dated 13-10-1959, it is evident that it can be pressed into service by a claimant, a non-claimant displaced person or a local, for the purpose of claiming transfer of an evacuee property on the basis of his undisputed possession from a date prior to 20th day of December, 1958. The terms `claimant', `displaced person' and `local' have been defined by subsections (2), (3) and (5) of section 2 of the Act. The above terms have been used besides the term `non-claimant' in the First Schedule to the Act and the Schemes framed thereunder for categorizing the persons in possession of evacuee properties for determining their eligibility inter se for claiming transfer of such properties and not for, conferring status of statutory tenant. Even otherwise, the appellants do; not fall in the categories of the above three classes of persons referred to in the notification, namely, a claimant, a non-claimant displaced person, and a local.

However, Mr. Sharifuddin Pirzada has submitted that the above second proviso to clause, (6) has used the words "such persons" and, therefore, the above expression would include a legal person like the appellants. In furtherance of his above submission, he has referred to the case of Mst.

Sughran Begum v. Assistant Collector, Central Excise and Land Customs, Sukkur and another PLD 1965 (W.P) Karachi 337, in which a learned Single Judge of the erstwhile High Court of West Pakistan held that the word "person" used in section 30 would cover the Government for the purpose of claiming protection.

13. There cannot be any cavil to the proposition that the term "person" includes a legal person which may be a registered firm or a private limited company or any other corporation or body having the status of a legal entity, but in the present case in the above notification the term "person" has not been used but the benefit has been extended to the three categories of persons referred to hereinabove and that too for the purpose of claiming transfer of an evacuee property on the basis of undisputed possession from a date prior to above target, date. My above conclusion finds support from the case of Ali Muhammad v. Haji Hussain and 2 others PLD 1975 Karachi 971 referred to by Mr. Sharifuddin Pirzada, in which it has been held that for the purpose of claiming transfer, the possession need not be under a tenancy recognised by the Custodian in view of the above notification if the applicant is in undisputed occupation of the premises on 20th December, 1958.

14. At this juncture, it may be pertinent to point out that the Evacuee I Properties and Displaced Persons Laws (Amendment) Act, 1973, enforced in I July, 1973, inter alia omitted the definition of the term "possession" given in clause (6) of section 2 of the Act, but the above omission is not material as the present suit was filed on 26-1-1965 and the rights of the parties arc to be decided according to the law which existed at the time of commencement of the above suit in the absence of any contrary express or implied intendment on the part of the Legislature. In this behalf, reference may be made to the case of Hassan and others v. Fancy Foundation PLD 1975 SC 1.

15. Since I have held that the above notification dated 13-10-1959 cannot be pressed into service by the appellants who were neither a claimant nor a non---claimant displaced person nor a local, as a corollary, it must follow that for the purpose of claiming possession in terms of above clause (6) of section 2 of the Act, the appellants were required to prove that they had obtained possession in pursuance of an order passed on or before 20th day of December, 1958, by the Rehabilitation Authority or any other officer authorised or permitted by the Central or Provincial Government, which admittedly they failed to prove. According to the concurrent finding of the Courts below factually Ramzan Khan in his personal capacity, obtained allotment of the suit premises on 19-5- 1952 (Exh.l/3). The appellants have not produced any document to indicate that the above allotment in favour of Ramzan Khan has been superseded by any competent authority in favour of the appellants or that the Custodian Department had ever recognised them as the tenant. Ramzan Khan in his examination-in-chief first stated that "I am tenant", then he slated "i.e. The plaintiff is tenant of the defendants in the building". However, alongwith the petition for leave, the appellants had filed a Circular dated 2-12-1959 purported to have been issued by the Deputy Settlement Commissioner (Auction) to the occupants of the building alongwith an annexure containing the names of the persons in possession of various portions of the building (pages 78 and 78-A at the paper book). The above Annexure at S.No.1 contains the following entry:--- "G/1 Mr. Ramzan Khan, Khawaja Auto Cars Ltd.Rs.269/- 8/-- Allottee"

16. Mr. HA. Rehmani objected to the above documents on the ground that the same were not filed before any of the three Courts below. Thereupon, Mr. Sharifuddin Pirzada's submission was that the above documents were in fact filed by the respondents in the rent case for ejectment filed by them against the appellants. Strictly speaking, the above documents cannot be treated as a part of the evidence but even if I were to rely upon the same, it does not, in my view, improve the appellants' case. The name of the allotlee shown is Ramzan Khan though after his name, the name of the appellants is mentioned. Admittedly the allotment was made in 1952- when the appellant- company was not even incorporated and, therefore, reference to the allottee is, reference to Ramzan Khan. It may be stated that the appellants even in their plaint have averred the factum that the allotment of the suit premises was made in favour of Ramzan Khan. They have not averred that at any point of time, the same was substituted in their favour. They have pleaded statutory tenancy on the basis of section 30 of the Act.

It may be pertinent to mention that the appellants filed ExhS.P.W.1/6 dated 12-6-1965, P.W. 1/7 dated 21-7-1965, and P.W.I/8 dated 1-6-1966, which arc letters on the letter-head of the appellants, whereby the cheques were sent to the respondent towards the rent. The Courts below have held that the above payment of rent does not create any tenancy right. It may again be pointed out that before the learned first appellate Court, it was conceded by the learned counsel for the appellants that he did not claim any contractual tenancy. Thereupon, the learned first appellate Court observed that "this means that he does not attach much importance to the acceptance of rent from the appellant by the respondent". In this regard, it may be observed that even in the plaint, the appellants had not pleaded any contractual tenancy on the basis of the above payment. It may be pointed out that above three letters arc of dates subsequent to the filing of the suit. Though the cheques were sent by the appellants through the above covering letters, but no rent receipt was issued by the respondents in favour of the appellants. This position has been admitted by the appellants' witness Ramzan Khan in his cross-examination by stating "The defendant did not issue any receipt in the name of Khawaja Autos but acknowledged cheques."

The learned trial Court and the High Court have relied upon the judgment of a Division Bench of the erstwhile High Court of West Pakistan at Karachi Bench in the case of Boman Abadan Irani and others v. Jehangir, J. Mobed and others PLD 1967 Kar. 449, whereby the judgment of a learned Single Judge reported in PLD 1960 Kar. 276 was set aside. The High Court has quoted the following observation on the above Division Bench judgment as to the effect of acceptance of rent:----- "Admittedly, the defendant No.1 did not obtain the permission of, the plaintiff for letting the company take over the concern and the premises. His idea was that this was not necessary because the share-holders of the company were his own members of the family. In order that en inference as to consent or waiver could be raised it had to be shown that the plaintiff had acted in consciousness of the fact. Mere accepting the cheque issued by the company would not signify consent to a sub-lease."

The above judgment was affirmed by this Court through the judgment reported in PLD 1974 SC 351 (Menak J. Mobed and another v. Shah Behram and others).

17. At this stage, it may be appropriate to observe that the mere fact that Ramzan Khan had incorporated the appellants i.e. a private limited company in which his family had majority shares, would not make any difference in respect of the tenancy of the suit premises, as a company is a different legal entity from its shareholders or its Directors. In this behalf, reference may be made to the above Division Bench judgment, namely, Boman Abadan Irani and others v. Jehangir J. Mobed and others (supra), in which following observation was made:--- "The fact that the company consisted of himself and members of his family does not, in our, opinion, make any difference to the result. The Supreme Court in the case of Ikram Bus Service v.

Board of Revenue and others PLD 1963 SC 564 quoted with approval the dictum of Lord MacNathen in the case of A. Salomon & Company Ltd. 1897 AC 22 which ran thus:- "The company is at law a different person altogether from the subscribers to the memorandum; and, though it may be that after incorporation the business is precisely the same as it was before, and the same persons are managers, and the same hands receive the profits, the company is not in law the agent of the subscribers or trustees for them."

Their Lordships further noted the decision of the Privy Council in the case of Avolin Scott Ditcham AIR 1931 PC 203 where the general notion that Company need not be regarded as a corporation distinct from the persons composing it was dispelled (PLD 1974 SC 351)."

This Court, while affirming the above judgment in which it was held that the individual lessee by parting with the possession in favour of a company incorporated by him and his members of the family, committed the breach of the terms of a lease, made following observation:----- "If a person obtains (case hold rights in his own name and subsequently assigns them to a firm or to a private limited company consisting of family members it cannot be said that no change has taken place in the status of the tenant or that it is not a case of subletting or assignment of leasehold rights."

18. Reverting to the question, whether the appellants could claim the benefit of section 30 of the Act in spite of the fact that Ramzan Khan was the allottee and the tenant of the suit premises, it may be observed that I have already held hereinabove that the appellants' possession does not fall within the definition of the term "possession" given in clause (6) of section 2 of the Act, nor it comes within the purview of the above notification dated 13-10-1959. At this juncture, it may be pertinent to refer some of the case-law on the above provisions of the Act.

(i) EA. Evans v. Muhammad Ashraf PLD 1964 SC 536; in which section 30 of the Act has been analysed by this Court while deciding the question, whether a person in possession of an evacuee properly transferred to some other person can dispense with the service of a statutory notice in his favour, dealt with the nature of tenancy created by the operation of the above section. Suffice to quote from the opinion of Hamoodur Rahman, J. (as his Lordship then was), which reads as follows:- "It will be observed that the provisions of the said section are to apply `notwithstanding anything contained in any other law' and `without prejudice to any other right' which a person in possession of an evacuee house may have in that house, shop etc., and under them he is to `be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which lie held it immediately before transfer.' It would thus appear that this section by its own force created a statutory Tenancy in favour of such persons who were in occupation of evacuee premises at the time of their transfer. This statutory tenancy was to be in addition to any other right which they may have in such premises but upon the same terms and conditions upon which they occupied the premises before their transfer:"

(ii) Khawaja Abdul Qayyum v. Mr. Justice Shamim Hussain Qadri and 6 others 1973 SCMR 353; In the above case this Court, while allowing an appeal against the judgment of the Lahore High Court, held that the protection under section 30 of the Act cannot be claimed by a person members of whose family were residing in the suit property as licensees. It may be pertinent to quote the relevant observation, which reads as follows:--- "Khawaja Mushtaq Ahmad, learned counsel for respondent No-5, argued that his client has acquired statutory tenancy under the Displaced Persons (Compensation and Rehabilitation) Act for a period which will extend to six years from the date on which the appellant serves on him the notice of transfer. It was admitted by the learned counsel that respondent No.5 is not in occupation of portion 36-B and is residing in the United Kingdom. Past history of the case shows that respondent No.5 has been residing in the United Kingdom since long and has not occupied personally 36-B since before its transfer to the appellant. Some members of his family are residing in the portion 36-B, but as licensees, they arc not entitled to notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act. Indeed, they have already taken advantage of the dispute between the appellant and respondents 1 to 4 and remained in occupation of the portion 36-B for more than ten years since its transfer to the appellant without payment of rent."

(iii) Ayoob and another v. Masjid-e-Noman 1973 SCMR 604; in which this Court, while dismissing an appeal against the judgment of the High Court maintaining the ejectment order against the appellants who were in possession of a portion of evacuee land transferred to the respondent, commented upon section 30 of the Act 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 said 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."

(iv) Osman and another v. Hajiani Mariam Bai 1978 SCMR 209; In the above case this Court, while dismissing a petition for leave, held that in order to claim protection under section 30 of the Act, the petitioners had to establish that they were the recorded tenants of the premises. The relevant observation reads as follows:-- "As for the second contention, the learned Single Judge in the High Court rightly held that the petitioners cannot now take the benefit of section 30(1) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, as it was neither pleaded in support of their claim nor was it raised before the First Appellate Court. No exception can be taken to it, for, before taking advantage of this legal provision, the petitioners had to establish that they were the recorded tenants of the premises. Not having done so, there was no scope for applying this provision."

(v) Muhammad Sadiq v. Mir Ajam Khan etc. 1978 SCMR 214; in which the question was, whether a partner with the allottee of the shop who were carrying on business therein, was entitled to seek transfer of the shop. It was held that he, being the licensee, had no independent status as to possession of the shop and, therefore, was not entitled to apply for the transfer. It may be advantageous to reproduce the relevant portion of the judgment, which reads as follows:----- "The main ground urged for review is that this Court overlooked the fact that the petitioner was in possession of the shop in his own right in accordance with the definition given in section 2(6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958; and that he was, in fact, the adopted son of Muhammad Shari and on that account also entitled to preference over the respondents. .

There is no merit in these submissions. All the Settlement Courts have found that the allottee of the shop was Muhammad Shari, and, therefore, the petitioner's partnership with the allottee in the business being carried on in the shop could not give him an independent status as to possession of the shop, as he would at best remain a licensee:"

(vi) Abdus Salaam and another v. Ch. Noor Muhammad NLR 1979 Civil SC 646; in the above case this Court, while declining a petition for leave against the judgment of the Lahore High Court, held that a sub-tenant was not entitled to a notice and the protection under section 30 of the Act. The relevant observation reads as follows:--- "As such we are inclined to agree with finding of the learned Judge of High Court that Abdur Rashid had been introduced as a sub-tenant in the property by Abdus Salam without the consent of the landlord and further that Abdur Rashid sub-tenant was not entitled to any protection under section 30 of the Act and the landlord was, therefore, not required to send him a notice under clause (b) of subsection (1) of section 30 of the said Act. It may also be mentioned that it is provided' in subsection (3)(ii) of section 30 of the Act that nothing in proviso (b) to subsection (1) (regarding notice) shah apply to a tenant `who after the transfer, has sublet or otherwise parted with the possession of the house or shop or any part thereof: Consequently, as observed by the learned Judge of the High Court, even Abdus Salam lost the protection of section 30 of the Act because he had introduced a sub-tenant in the premises and, as such no notice under section 30 of the Act was required to be sent even to him."

(vii) Afzal Mirza and others v. Ahmad Saeed Khan and others 1985 SCMR 1138; In the above case this Court, while dismissing an appeal against the judgment of the Lahore High Court, held that a licensee was not entitled to claim transfer of the evacuee property as he cannot be considered to be in possession in terms of "possession" as defined in section 2(6) of the Act or under the extended definition of the term "possession" given in the notification dated 13-10-1959.

The relevant observations read as follows:---- "We have carefully perused the record and also fully considered the submissions made before us, by all the learned counsel appearing in these appeals. We are inclined to agree with the view taken by the learned Judges of the Letters Patent Bench that Ejaz Ahmad Siddiqui and Afzal Mirza were merely licensees since they had entered the premises either as an employee of Seth Ghulam Ali Mandviwala or as a member of his family and neither had any independent status of his own and that mere licensees cannot be considered to be in `possession' as the said term is defined in clause (6) of section 2 of the Displaced Persons Act or under the extended definition of that term given in the notification dated 13-10-1959. It is true, as pointed out by Mr. Bashir Ahmad Ansari that the decisions of this Court referred to by the learned Judges viz. Mirza Bashiruddin Mahmud Ahmad v. Settlement Authority 1977 SCMR 123 and Muhammad Sadiq v. Mir Ajam Khan etc. 1978 SCMR 214 were cases in which the licensee was in competition with his licensor and, therefore, these cases might be distinguishable from the present case in which the licensor was not challenging the status of his licensee and seeking the transfer as against him. But here too, according to the learned counsel for the respondents, the heirs of Seth Ghulam Ali Mandviwala did submit an L.H.

Form for the transfer of the property, which was later on withdrawn, which indicated that they too had asserted their own independent right in the matter of transfer:'

(viii) Abdur Rehman through his Legal Heirs v: Prof. Ghulam Rasool Tanvir and another PLD 1987 SC 45; in which this Court, while dismissing .An appeal against the judgment of the 't---. Lahore High Court, observed as to the creation of relationship of landlord ands, tenant between the transferee and the person in possession as follows:---- "The scheme of section 30 is to create by the use of a deeming clause a relationship of landlord and tenant between the transferee and the person in `possession' of the property. Again, on the strength of the same deeming clause, this relationship is `on the same terms and conditions as to payment of rent or otherwise on which he held it immediately before ': transfer':'

19. From the above-referred cases, it is apparent that this Court has consistently held that a licensee's possession of an evacuee property does not fall within the purview of the definition of the term "possession" given in clause (6) of section 2 of the Act as to entitle him to apply ,for the transfer of the evacuee property in his possession. It may also be noticed that in the above case of Ayoob and another v. Masjid-e-Noman (supra), it has been held that in order to claim protection under section 30 of the Act, the possession should be in terms of clause (6) of section 2 of the Act. It may further be noticed that in the above case of Osman and another v. Hajiani Mariam Bai (supra), it has been observed by this Court that in order to claim protection under section 30, the petitioners were required to establish that they were recorded tenants. It may also be noticed that from the tenor of the judgment in the case of Abdus Salam and another v. Ch. Noor Muhammad (supra), it seems that this Court was inclined to take the view that a sub-tenant cannot press into service section 30 of the Act. It is also evident that this Court, while construing section 30 of the Act, inter alia in the cases of EA. Evans v. Muhammad Ashraf and Abdur Rehman through his Legal Heirs v.

Prof. Ghulam Rasool Tanvir and another (supra) held that by virtue of section 30 of the Act, a person in possession of an evacuee property becomes statutory tenant upon service of a notice of the transferee concerned on the same terms and conditions as to the payment of rent or otherwise on which he held it immediately before the transfer on the basis of the language of the above provision. The use of the above expression "on the same terms and conditions as to the payment of rent or otherwise" clearly indicates that the person in possession of an evacuee property should have the status of a tenant as has been held by this Court in the above case.

If it is to be held that the definition of the term "possession" given in clause (6) of section 2 of the Act cannot be read into section 30 thereof, which will be contrary to the view taken by this Court in Ayoob and another v. Masjid-e---Noman (supra), one can urge that the distinction between clause (6) of section 2 and subsection (1) of section 30 of the Act, seems to be that the former contemplates possession in pursuance of an order passed on or before the 20th day of December, 1958, subject to the second proviso of the above clause which empowers the Central Government to dispense with the requirement of an order as pointed out hereinabove, whereas under the latter provision the possession is not required to have been obtained in pursuance of an order passed on or before the 20th day of December, 1955, by the authorities mentioned in clause (6) of section 2 of the Act, but the requirement is that he should be holding the possession on certain terms as to the payment of rent or otherwise. In other words, if the Custodian Department was receiving rent from an occupant of an evacuee property, notwithstanding that he did not occupy the evacuee property in pursuance of an order of the Rehabilitation Authority etc. He shall be deemed to be a tenant.

20. It may be observed that if a term is defined in the relevant statutes, the general rule of interpretation is that the definition given is to be read in the relevant provisions wherein such a term is used. In this regard, reference may be made to the case of Pramatha Nath Chowdhry and 17 others v. Kamir Mondal and others PLD 1965 SC 434, relied upon by Mr. Sharifuddin Pirzada.

However, if the context and the language of the relevant section indicates otherwise, the definition may not be imported for construing a provision of a statute. In this regard, it may be pertinent to quote the relevant observations from the judgment of this Court in the case of Iftikhar Ahmad and others v. President, National Bank of Pakistan and others PLD 1988 SC 53, which read as follows:--- "10. It is difficult to subscribe to the view taken by the learned Judges in the High Courts. No doubt, the award given by the Wage Commission is not included in the definition of the term `award' as given in section 2(ii) of the Ordinance, but then as the governing clause of section 2 itself states the definitions given therein arc to be read subject to anything repugnant in the context in which the defined terms occur. Apart from that, as held by this Court in Bank of Bahawalpur v. Chief Settlement and Rehabilitation Commissioner PLD 1977 SC 164 that although normally an expression if defined in a Statute has to be given the same meaning wherever it occurs therein, yet there is ample authority for the principle of interpretation that a definition of a term in a Statute is merely declaratory in nature and should not be unnecessarily inflicted where it does not fit in with the subject or context."

21. Mr. Sharifuddin Prizada has referred to the case of Muhammad Moosa and 2 others v. Shabbir Ahmad and another 1984 CLC 3227 decided by a Division Bench of the Sindh High Court, wherein it has been held that the concept of "possession' under sections 2(6) and 2(12) is distinguishable from concept of "possession" under section 30 of the Act. The relevant observations read as follows:---- "The above discussion would show that concept of `possession' under sections '(6) and 2(12) is distinguishable from the concept of `possession' under section 30. There it determines the eligibility of an applicant to 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 made to subsection (3)(ii) of section 30 itself where 'possession' has been used 30(3)(ii) -Nothing in proviso a) to subsection (ii) shall apply to a tenant.

"(i) 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 of or injurious to the property; [nor shall anything therein apply to the tenant of any house or shop who, in any urban area within the same town or city, owns a house or shop, as the case may be].

Here again the term `possession' has been used and for obvious reason cannot be read as possession defined in section 2(6) quoted above:'

22. Even if I were to examine the appellants' case on the assumption that the definition of the term "possession" given in clause (6) of section 2 of the Act cannot be imported for the purpose of construing section 30, it would not improve the case of the appellants as already pointed out hereinabove that even for the purpose of section 30, the person in possession of an evacuee property should have the status of a tenant. In the present case, the three Courts below have held on the basis of the material on record that factually Ramzan Khan was the statutory tenant. He, as the Managing Director of the appellant-company, permitted it to use the suit premises and, therefore, the status of the appellants qua the suit premises is that of a licensee or at the most of a sub-tenant, which is not recognised by section 30 of the Act as manifested by the above-referred cases decided by this Court. In this regard, it may be pertinent to point out that section 29 of the Act authorises the Chief Settlement Commissioner or his delegatee to eject or cause to be ejected any person in possession or occupation of any evacuee property or any property acquired under section 3, whose possession or occupation is not authorised by any of the provisions of the Act or who contravenes or may have contravened any of the terms and conditions under which the property is held by him or who, when called upon, has' failed to pay public dues or has wilfully caused damage to any such property allotted to or occupied by him and for the purpose of such ejectment, he ' may use such force as may be considered necessary. The above section indicates that the Act does not recognise every possession or occupation and, therefore, the possession or occupation should be in terms of clause (6) of section 2 or section 30 of the Act as pointed out hereinabove, if I were to hold that possession referred to in section 30 need not be in terms of above clause (6) of section 2 of the Act. The above section 29 supports the view which I am inclined to take.

23. The appellants came into exclusive possession of the suit premises in September, 1974, when Ramzan Khan sold all his shareholdings to the present management i.e. Raja Abdur Rehman and his associates, which fact is reflected in the judgment of the learned VII th Senior Civil Judge/Rent Controller, Karachi (South), passed on 25-2-1987 in Rent Case No.791 of 1975, the copy of which has been filed by the appellants with the paper book at page 62 and at page 69, the following observations have been made by the learned Rent Controller:---- "Opponent No.2's witness Raja Abdul Rehman has stated that it is correct to suggest that from September, 1974, opponent No.1 Ramzan Khan ceased to have any affairs in the company or its management, and vide agreement, dated 17th September, 1974 (Exh.0/20) Mr. Ramzan Khan sold and transferred all his shareholdings to Raja Abdul Rehman and his associates."

24. It may be pointed out that after the above transfer of shares by Ramzan Khan in September, 1974, in favour of Raja Abdul Rehman, the respondent filed aforesaid rent case for ejectment on the grounds of default and subletting. The above case has been allowed by the learned Rent Controller through the above judgment, which matter is under appeal pending before the High Court. The cause of action which prompted the appellants to rile the suit under reference, is no longer alive for the relief of a mandatory injunction etc. But since the concurrent finding of the Courts below on the question that the appellants are not statutory tenants, still holds good and has been relied upon by the Rent Controller, the appellants have prosecuted the above appeal. It is, therefore, evident that till September, 1974, the appellants were using the suit premises with the permission of Ramzan Khan who was the Managing Director of the appellant-company and thereafter even Ramzan Khan ceased to have interest in the appellant-company by transferring his shares. It may further be observed that at the time of transfer of the building in question by the Settlement Department to the respondent, Ramzan Khan was legally in possession of the suit premises being the allottee and tenant of the Custodian. The respondents recognised Ramzan Khan as their tenant in term of section 30 of the Act.

25. Before concluding the above discussion, I may observe that the respondents had filed Suit No.173 of 1964 against Ramzan Khan in the Court of Civil Judge, First Class, Karachi, in which he filed written statement (Exh.D.W.l/2) on or about 28-8-1864, wherein he admitted the factum fact that he was the tenant and that after the transfer of property to the respondents, they admitted his tenancy rights. The above written statement was exhibited by the trial Court in the suit through the respondent's witness. In the cross-examination of Ramzan Khan, he was asked a question by the respondents' counsel about the filing of a suit against him but he was not confronted with the above paras 2 and 3 of the written statement. The learned trial Court and the first appellate Court have not relied upon the above written statement in their judgments. However, the High Court has made a reference to the above written statement. It was contended by Mr.Sharifuddin Pirzada that in the absence of putting the above written statement to Ramzan Khan in his cross-examination, the same could not have been relied upon by the High Court. In support of his above submission, he has referred to the case of Mst. Khair-un-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25, in which this Court inter alia held that a written statement cannot be exhibited. In a case without the person filing the same being examined in Court and, therefore, cannot be treated as evidence in the case under section 32 of the Evidence Act. There cannot be any cavil to the above proposition and, therefore, it was not proper for the High Court to have taken into consideration the above written statement. While arriving at the above conclusion, I have not taken into consideration the above written statement. The finding of the learned trial Court and the first appellate Court on the question that Ramzan Khan was the statutory tenant, was not based on the above written statement but founded on the other evidence inter alia referred to by the learned first appellate Court in the above-quoted portion of the judgment.

26. The above irregularity on the part of the High Court, namely, to have referred the above written statement, could not vitiate the above concurrent finding which is supported by the material on record. I am, therefore, of the view that the above concurrent finding cannot be interfered with by this Court in this appeal. The appeal is dismissed with no order as to costs.

NASIM HASAN SHAH, J.---This matter has been placed before me because a difference of opinion has arisen between the two learned Members of the Bench who heard this appeal.

The relevant facts are that the respondents are the landlord and transferees of building on Plot No.31/5 Sheet No.PR-2 Preedy Quarters Victoria Road, Karachi, having purchased the same in auction from the Settlement and Rehabilitation Department in October, 1959. The appellants claiming to be the statutory tenants of the respondents in respect of the entire ground floor filed a suit for mandatory injunctions against the respondents restraining them from blocking the gate and passage and interfering with the free enjoyment of their legal rights. Mandatory injunction was also sought for a direction to remove the platform and construction in front of the gate and passage of the compound and godowns and to open the gates so as to restore it to its original condition. Their case was that the appellants are tenants carrying on business, through their Managing Director Ramzan Khan and the compound premises was used as a workshop by their predecessor --the firm which was purchased by Ramzan Khan. Previously, the firm was run under the name and style of Krips Automobiles but Ramzan Khan had apparently changed its name to Khawaja Auto Cars and thereafter he converted it into a Limited Company in 1956.

The respondents denied that the appellants were their tenants, asserting that it was Ramzan Khan who was their tenant and, accordingly, the appellants had no locus standi to rile the suit.

The learned trial Court upheld the above plea and dismissed the suit. The First Appellate Court upheld the judgment and decree passed by the learned trial Court. The High Court too, on revision, found the said judgments to be unexceptionable and dismissed the revision petition. Hence this appeal, by leave of this Court.

This appeal came up for hearing before a Bench of this Court consisting of Mr. Justice Zaffar Hussain Mirza and Mr. Justice Ajmal Mian. However, the learned Members of the Bench differed on the crucial question arising therein, namely, whether the appellants could be deemed to be the statutory tenants of the respondents under section 30 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958? According to Mr. Justice Zaffar Hussain Mirza "the appellants have successfully established that they were statutory tenants of the premises under section 30 of the Act on the date of the suit". But Mr. Justice Ajmal Mian, the other learned Member of the Bench differed from this view. According to him, the conclusion to which the three learned Courts below had arrived at, namely, that the appellants could not be deemed to be the statutory tenants of the respondents and, therefore, had no right to file the suit, was correct and that the plaintiffs' suit, therefore, had rightly been dismissed. Hence this reference before me.

In his judgment Mr. Justice Zaffar Hussain Mirza has opined that the finding of the High Court to the effect that the appellants were not statutory tenants under the respondent was arrived at without taking into consideration the extended meaning given to the term `possession' defined in section 2(6) of the Act by the notification of 13-10-1959, According to my learned brother Zaffar Hussain Mirza, J. Ramzan Khan admittedly had constituted a limited company with himself as Managing Director in 1956 and put the said company into occupation of the premises long before the target date, abandoning all his claims to the tenancy. In the circumstances, the respondents, who were transferred the premises on a much later date could not object to the status of the occupants (i.e. The appellants herein) and question the nature of their "possession" after becoming the transferees of the premises. The mere fact that the allotment order of Ramzan Khan was not modified so as to recognise the possession of the appellants was m the circumstances immaterial because their possession was not being disputed by Ramzan Khan. On this view of the matter it was held that the appellants had succeeded in establishing that they were statutory tenants of the premises m dispute, under section 30 of the Act on the date of the suit.

Mr. Justice Ajmal Mian, on the other hand, has expressed the opinion that the notification dated 13- 10-1959 was of no avail to the appellants. Since all the three Courts below had found concurrently that admittedly Ramzan Khan had obtained the allotment of the suit premises on 19-5-1952 in his personal capacity (Exh.l/3), no document whatever was produced by the appellants to show that the said allotment in favour of Ramzan Khan was ever superseded and the premises allotted in favour of the appellants or that the Custodian Department had ever recognised them as the tenant. In the evidence led at the trial, Ramzan Khan in his examination-in-chief had stated, in the first instance, that "I am tenant", but then amplified his statement by stating "i.e. The plaintiff is tenant of the defendants in the building;. No documentary evidence in support of this statement was adduced at the trial. It was years later that the appellants filed a Circular dated 2-12-1959 purported to have been issued by the Deputy Settlement Commissioner (Auction) to the occupants of the building alongwith an annexure containing the names of the persons in possession of various portions of the building alongwith the petition for leave in the Supreme Court (pages 78 and 78-A of the paper book). In the Annexure to the Circular undoubtedly the following entry exists at Serial No.1: "G/1 Mr.Ramzan Khan, KhawajaRent P.MAllottee"

Auto Cars Ltd. RS.269 8 This document, according to the learned Judge, was of no avail. Apart from the fact that the admissibility of this document at this stage was seriously disputed, the entry even at face value showed Ramzan Khan as allottee, while the names of the appellants (Khawaja Auto Cars Ltd.) was mentioned subsequently. It was observed that since the allotment to Ramzan Khan was made in 1952 much before the appellant-company was incorporated; the word "allottee" in the document referred to Ramzan Khan alone. In so far as the question that the appellants could be deemed as tenants under the amplified definition of "possession" by virtue of the notification dated 13-10-1959 was concerned it was observed that this plea too was not tenable. The reason was that the occupation visualized in the notification of October 13, 1959, was "undisputed occupation" and according to the learned Judge "licensees" are not included within the ambit of this expression. In this connection, it was observed that a company being a legal entity different from its shareholders or its Directors, the appellants could not be deemed to be in "possession" of the premises only because Ramzan Khan the Managing Director of the new Company was the allottee and that it was he who had put them into possession. The new Limited Company the appellants herein remained merely licensees under Ramzan Khan allottee, and enjoyed no independent status of their own. A large number of authorities were referred to in support of the view that a Company or Firm is a different legal entity from its shareholders or its partners and where an allottee allows the Company or Partnership Firm of which he is Director/Share-holder/Partner to enter into the property, the latter are only his licensees and in point of fact in allowing them to occupy the premises the allottee is guilty of committing a breach of the terms and conditions on which he was granted the allotment of the property.

The learned Judge summed up his discussion on this aspect of the matter as follows: "In the present case, the three Courts below have held on the basis of the material on record that factually Ramzan Khan was the statutory tenant. He, as the Managing Director of the appellant- Company, permitted it to use the suit premises and, therefore, the status of the appellants qua the suit premises is that of a licensee or at the most of a sub-tenant, which is not recognised by section 30 of the Act as manifested by the above-referred cases decided by this Court. In this regard, it may be pertinent to point out that section 29 of the Act authorises the Chief Settlement Commissioner or his delegatee to eject or cause to be ejected any person in possession or occupation of any evacuee property or any property acquired under section 3, whose possession or occupation is not authorised by any of the provisions of the Act or who contravenes or may have contravened any of the terms and conditions under which the property is held by him or who, when called upon, has failed to pay public dues or has wilfully caused damage to any such property allotted to or occupied by him and for the purpose of such ejectment, he may use such force as may be considered necessary. The above section indicates that the Act does not recognise every possession or occupation and, therefore, the possession or occupation should be in terms of clause (6) of section 2 or section 30 of the Act."

My learned brother Ajmal Mian, J. Has further observed that as Ramzan Khan was legally in possession of the suit premises being the allottee and tenant of the Custodian at the' time of the transfer of the premises to the respondents by the Settlement Department; accordingly, the respondents were justified in law to recognize Ramzan Khan as their tenant and none else in terms of section 30 of the Act. Hence all the three Courts below held rightly that Ramzan Khan alone was the statutory tenant and this finding did not call for any interference.

Extensive arguments have been addressed before me by the learned counsel for the parties in regard to the question on which my learned brothers have differed. After bestowing my most careful attention to all that has been urged before me, my opinion is stated hereinafter very briefly is as follows: The calamitous disturbances attending the creation of the two Independent Dominions of India (Bharat) and Pakistan involving transfer of population on an unprecedented scale created horrendous problems for the newly-created Dominions necessitating the enactment of special laws to deal with the situation. One of these laws was `The Pakistan Rehabilitation Ordinance (XIX of 1948) which was promulgated "to make the provision for the restoration and maintenance of the social and economic life of Pakistan and the orderly settlement of persons who have taken refuge therein". Under this Ordinance, Rehabilitation Commissioners, Additional, Deputy and Assistant Rehabilitation Commissioner were appointed with the power and duty to secure an orderly entrance of refugees into social and economic life of the Dominion. In this connection, specified kind of the evacuee property could be pooled and allotted to persons residents in Pakistan, whether refugees or not and any person in possession of any abandoned land, building, business or undertaking, whose possession thereof was not authorised by the Rehabilitation Authority could be summarily ejected. These were some of measures envisaged to normalise the social and economic life of Pakistan and secure the orderly settlement of persons who had abandoned land, buildings, business or undertaking in the Dominion of India while migrating to Pakistan. Needless to say that the allotment of the evacuee property to the refugees and some others under the provisions of this Ordinance was designed basically to secure the orderly settlement of persons who had taken refugee in Pakistan.

The next important legislation to secure the orderly settlement of the refugees and some others was the law enacted for registration and verification of claims of the displaced persons in respect of the property abandoned by them in India or areas occupied by India namely Registration of Claims (Displaced Persons) Ordinance (II of 1955) replaced shortly thereafter by Registration of Claims (Displaced Persons) Act (IIIof 1956).

After the claims had been registered and verified, the stage was set for payment of compensation for the losses suffered by them on account of the expropriation of their rights in the property in India by the Government of India or in the areas occupied by it. The manner by which they were to receive compensation was prescribed in the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958). Under the provisions of this Act, a Compensation Pool was to be created for the purpose of granting compensation to claimants in respect .Of immovable property (other than agricultural land) abandoned by them to non-claimant displaced persons who had been displaced from their homes and hearths and other specified category of persons.

The intention being to compensate the claimants from tile Compensation Pool for the losses suffered by them on account of expropriation of their properties in India and to utilize it for rehabilitation of others. The Chief Settlement Commissioner for implementing this design was authorised, subject to the provisions of the Act and rules made thereunder to transfer or dispose of any property out of the compensation pool on evaluation basis or by sale or by means of auction or otherwise in accordance with the provisions of the Schedule to the Act. Under the said Schedule, houses and shops in possession of the claimants-displaced persons, non-claimants displaced persons could be transferred to them. Locals in possession of houses of modest value could also be transferred the houses in their possession. But this privilege could be availed of only if they were in possession as defined by the Act of the evacuee properties occupied by them. The term "possession" in the Act was defined to mean "possession obtained in pursuance of an order passed on or before the twentieth of December, 1958, by a Rehabilitation Authority or a Custodian or any other officer authorised or permitted by the Central or Provincial Government". However, a large number of claimants and non-claimants displaced persons as well as locals though in "possession" as defined in the Act were still unable to obtain transfer of the houses and shops in their possession for various reasons. Some relief was also bestowed on them by allowing them to continue in occupation of the premises in their possession for a period of six years during which period the new transferee of these premises could not eject them if they continued to pay rent to the new transferee/landlord as from the date he informed them of the factum of the transfer. This protection was conferred by the provisions of section 30 of the Act and indeed it is with regard to the question whether the appellants were entitled to claim it, under the provisions of section 30, that my learned brethren have differed.

According to section 30, where any person is in possession of an evacuee house or shop on or before 20ih day of December, 1958 then notwithstanding anything contained in any other law such person shall be deemed to be a tenant' of the transferee on such terms and conditions as to payment of rent or otherwise on which he held it immediately before the transfer and such person cannot be ejected by the transferee for a period of six years from the date of transfer (notice of which shall be given by the transferee to the tenant within one month by registered post acknowledgment due).

The respondents were transferred this premises which was a "Big Mansion" by the Settlement Department, through auction in November, 1959. And the question that arose in this case was whether the appellants had become tenants in law of the premises, in so far as Ramzan Khan, who was regularly allotted these premises in 1952 but later, in 1956, formed the Company (the appellants) with himself as its Managing Director had allowed the Company to occupy the premises and conduct business therein?

The appellants in support of their claim that they can be deemed to be the tenants did not merely rely on the definition of the `possession' given in the enacting part of subsection (6) of section 2, reproduced above, but also placed reliance on the notification issued by the Central Government under the second proviso of subsection (6) of section 2 on 13th October, 1959. According to thisproviso, the Central Government may, by order in writing, direct that a class or classes of such persons as have not obtained possession as aforesaid (i.e. In pursuance of an order passed on or before 20th day of December, 1958 by a Rehabilitation Authority) 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 notification issued hereunder directed "that a claimant, non-claimant-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----------------------- 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 his occupation-------"

A persual of the terms of this notification shows that it is only the occupants of houses and shops who can claim benefit thereunder. In the instant case, the premises herein were a "Big Mansion".

This notification, therefore, is strictly not applicable in the case of the appellants. However, a broader meaning has been given to the term "house" by this Court in some cases by construing the word "house" in its ordinary and general sense and not in the technical sense envisaged by section 2(4) of the Act; see the Bank of Bahawalpur Ltd. Through its Manager v. The Chief Settlement &'

Rehabilitation Commissioner, Lahore and another PLD 1977 SC 164. However, in this very judgment it was observed, in the majority opinion, that "the onus was entirely upon the occupant, who claimed protection under section 30 of the Act, to prove that he had been in possession within the meaning of section 2(6) of the Act" and the learned Judges went on to observe further that if the phrase "any evacuee house" mentioned in section 30 of the Act is confined strictly to "house" as defined in section 2(4) of the Act and not to a "big mansion" then protection available under section 30 is not available to the occupants of a big mansion. On the other hand, if "any evacuee house mentioned in section 30 includes "a big mansion" then unless the person in occupation is in "possession" within the meaning of section 2(6) of the Act he is not entitled to the protection provided for under section 30 of the Act". Thus, unless the appellants can prove that they can be deemed to be a person in occupation of the premises within the meaning of section 2(6) of the Act, they would not be entitled to the protection provided for under section 30 of the Act.

Now the history of the legislation on this subject and the Scheme of the Act and its provisions clearly show that it is only those persons who have been put into possession of the evacuee properties by the Rehabilitation Authorities or whose occupation is of such an indisputable kind which the Department considers to be as good as occupation obtained by persons under its own orders are alone entitled to obtain transfer of the evacuee properties occupied by them and where they cannot obtain transfer of the property occupied by them they will be deemed to become statutory tenants under the new transferees and enjoy some special protection against the ejectment by them. This solicitude is, however, evinced by the Act for only such persons who are put into possession by the competent authority and for persons whose possession is deemed almost of the same quality as persons put into possession by it, by extending the amplitude of the meaning of the word "possession" as defined in the main part of subsection (6) of section 2 of the Act. However, this amplitude does not extend to recognising licensees, trespassers or other kinds of unauthorised occupants. Thus, for instance, if on the date of the transfer of an evacuee property (lie previous occupant was a trespasser or a licensee he does not become a tenant of the transferee merely because the premises have since been transferred by the Settlement Department. Hence a licensee cannot be deemed to be a tenant in law under section 30, even in its extended form. This Court has, in fact, expressed this view in a large number of cases which my learned brother Ajmal Mian, J. Has noticed in his judgment. Thus, for instance, in Muhammad Sadiq v. Mir Ajam Khan etc. 1978 SCMR 214 this Court held that a person's partnership with the allottee in the business being carried on in the shop did not give him an independent status as to possession of the shop and that he would, at best, remain a licensee and not entitled to transfer of the shop.

Again in Mobed's case it was observed by this Court that if a person holding leasehold rights in his own name but subsequently assigns them to a firm or to a private limited company consisting of his family members it cannot be said that no change has taken place in the status of the tenant or that it is not a case of subletting or assignment of leasehold rights; see Manek J. Mobed and others v. Shah Bahrain and others PLD 1974 SC 351. In fact, the meaning and amplitude of the term "possession" as contemplated in this Act was further clarified by the Department itself by the issuance of Memo. No.3223-PI-Reh/60, dated 7th March, 1960. This Memo stated: "The Central Government has decided that when a house is in possession of the husband in pursuance of the order passed on or before the 20th day of December, 1958 by a competent authority, his wife, if staying with him, will also be deemed to be in possession."

It is significant that this memo was issued on a date subsequent to the issuance of the notification dated 13-10-1959. If the contention of the appellants that a private limited company can be deemed to be in possession in case the allottee has no objection to it occupying the premises and in this manner its occupation can be deemed to be "undisputed occupation" was correct, then there was absolutely no necessity for issuance of this memorandum. For, as this Memorandum shows, a wife who is staying with her husband with his consent was not deemed to be in possession despite the notification dated 13-10-1959 necessitating the issuance of a further order on 7th March, 1960 for deeming her occupation in the premises as "possession" for the purposes of the Act.

However, it was argued that the Custodian Department was paid rent by the appellants (Private Limited Company) through cheques which were accepted. But merely because some payments have been made to the Government Department which has not refused to accept them does not imply that the said authority has accepted the status being claimed for himself by the person making the payment, unless the department accepting the rent has genuinely applied its mind to the question of the status of the party making the payment and accepted the rent with full consciousness of the said claim. Indeed, the mere circumstance that the rent was not refused is not sufficient to establish that the said authority is also accepting the status of the person tendering the rent as its tenant; see Boman Abaden Irani v. Jehangir J. Mobed PLD 1967 Karachi 449 which decision was affirmed by this Court in PLD 1974 SC 351.

Mr. Sharifuddin Pirzada then tried to argue that the appellant was co--tenant with Muhammad Ramzan under the terms of the Circular wherein the particulars of the transferee of the properties were entered. Herein, the appellant was shown under the column of tenants alongwith Ramzan Khan allottee.

However, the plea that the appellants were joint tenants with Ramzan Khan was not taken by the appellants either in their plaint nor during the evidence led at the trial, nor was it raised before the Additional District Judge in appeal nor in revision before the High Court, but has been taken before this Court for the first time, in the memorandum of appeal with which the aforementioned Circular was attached.

According to Mr.H.A. Rahmani, learned counsel for the respondents, the plea of joint tenancy raised before this Court being a question of fact, ought to have been raised before the trial Court and proved like any other question of fact. The document which is now being relied upon was in possession of Ramzan Khan, as it was addressed to the tenants but it was not produced in evidence by him and that, therefore, this document could not be taken into account at this stage. It would be admissible only if it was admitted into evidence as provided for in Order 41, Rule 27, C.P.C.

This admittedly was not the case here.

In my opinion there is force in this argument. It is noteworthy that the appellants had strongly objected to taking into consideration the written statement filed by Ramzan Khan in the earlier suit wherein he had described himself as the sole tenant of the premises, on the ground that although the said written statement was filed with the suit papers and produced before the Court by the respondent's witness and exhibited accordingly, but as Ramzan Khan was not confronted with its contents when he appeared as witness it could not be used against him. This plea was rightly accepted and this written statement was excluded from consideration. By the same token this Circular cannot also be taken into account and must also be excluded from consideration. What is sance for the goose is also sance for the gander. No basis, therefore, exists for the plea of joint tenancy in this case.

In the end, Mr. Sharifuddin Pirzada referred to certain authorities from the British Courts to submit that any plea or fact which had not been agitated before the Court in arguments cannot be taken into account by the Judge while delivering the judgment. Prejudice will otherwise be caused, he submits, to the other party if this rule is not adhered to. The learned counsel adds that as the adversary form of the procedure is being followed in this country, the above rule is a necessary concomitant thereof and should be observed.

This argument does not appear to be quite apposite in the circumstances of this case. The dispute in the present case in all the Courts below was whether the appellant could be deemed to be a tenant within the meaning of section 30 of the Displaced Persons (Compensation & Rehabilitation)

Act and, therefore, entitled to the statutory protection conferred by section 30. The same question was also agitated before the learned Members of the Division Bench of this Court and if the learned Judges, or one of them, while delivering judgment has referred; to some judgments of this Court bearing on the question in controversy not cited at the Bar in the course of the arguments, it cannot be said that the other party was prejudiced or that it was being taken by surprise and that it had been pejudiced. The learned counsel for the parties should have been cognizant of all the relevant judgments of this Court bearing on the controversy and if on account of their lack of industry or ignorance they failed to cite them, this Court would be fully justified to refer to them while dealing with the controversy. It would indeed prejudice the litigants if the precedent law of this Court was not taken into account while deciding cases since their decision will be cited as precedent in the future.

The result is that there is no force in this appeal. The same is dismissed with costs.

ORDER OF THE COURT In accordance with the view of the majority this appeal fails and is dismissed hereby, with costs.