1. ' This is a petition under section 115 of the Code of Civil Procedure and is directed against the judgment and decree of the learned IInd Additional District Judge, Karachi dated the 9th of February, 1983, by which he confirmed the judgment and decree of the trial Court, dated the 11th October, 1990.
2. ' The facts leading to the filing of the above revision are that Mst. Mashallah Jan wife of Sultan Bakhsh filed suit against the present petitioners and others for possession of Plot No.CRE-41, situated at Gul-e-Rana Colony, Soldier Bazaar, Karachi. The said Mst. Mashallah Jan averred in her plaint that she was the owner of the above plot measuring 1,326 Sq.Yds and the same was transferred in her name by the Settlement Authorities, vide P.T.O. No.KYC/10459 dated 11-4-1986. She averred that the petitioners have trespassed upon the above plot and are illegally occupying it without any legal authority. The said Mst.Mashallah averred that she served a notice dated 5-4- 1976 upon all the petitioners and demanded possession of the said plot but they refused to vacate and are illegally occupying it. The petitioners contested the suit. The petitioners pleaded that the suit was barred under the provisions of section 30 of Displaced Persons (Compensation and Rehabilitation Act, 1958 (hereinafter referred to as the 'said Act'). The petitioners pleaded that the suit was barred by limitation. The petitioners denied that they ever trespassed upon the plot in suit.
3. The petitioners pleaded tht the possession is bona fide, legal and it dated back to the period much prior to December, 1958 as envisaged by section 30 of the said Act. They prayed for dismissal of the suit. On the pleadings of the parties the trial Court framed appropriate issues. The parties led evidence in support of their respective versions. During the pendency of the suit, Mst. Mashallah died and the present respondents were brought on record as her legal representatives. The trial Court on assessm ent of evidence on record held that the said Mst. Mashallah was the undisputed owner of the plot in suit and entitled to claim relief in the suit. On issues 1 and 6 he came to the conclusion that the petitioners were not allottees of the suit land and they had not paid rent to any authority including Evacuee Board. He also came to the conclusion that the provisions of section 30 of the Act are not applicable in the cases of persons who are merely occupying premises but are not in possession within the meaning of section 30 of the said Act. He held that the petitioners are trespassers on the suit land and they are liable to be evicted. He held that the suit was not barred by limitation. He came to the conclusion that the suit was not undervalued. In this view of the matter the suit was decreed with costs.
4. ' The petitioners went in appeal which was also dismissed as stated in the earlier part of this judgment. The learned Additional District Judge on reassessment of evidence held that the respondents have successfully proved that they are owners of the plot in suit on the basis of Exts.5- A, 5-B, 5-C and 5-D. He decided issue No.1 in the affirmative. He came to the conclusion that in the present case 'Building Site' was transferred to Mst.Mashallah, the predecessor-ininterest of the respondents and the possession of the petitioners is not legal and therefore, the petitioners cannot claim notice under section 30 of the said Act or the benefit of section 13 of the Sindh Urban Rent Restriction Ordinance, 1959. He decided issues Nos.2 and 8 in the negative and issue No.6 in the affirmative. He came to the conclusion that the petitioners can be evicted. He held that the suit was not barred by limitation. He held that the suit was not undervalued and the suit was not bad for misjoinder or non-joinder of any necessary party. In this view of the case the appeal was dismissed and judgment and decree of the trial Court were affirmed.
5. ' The petitioners have now filed this revision challenging the judgment of the appellate Court.
6. ' Since the arguments advanced before me have, to a large extent, centred round the interpretation of Section 2(4), (6), (12) and section 30 of the said Act, I set out below the said provisions in extenso for ready reference:-- ' Section 2. Definitions "(4) "House."-- "House" means evacuee residential premises of any value in an urban area, or of the value of ten thousand rupees or more in a rural area, together with the gardens, grounds, garages and out-houses, if any, attached to or appurtenant to such premises, notwithstanding that any such garden, ground, garage or outhouse is in the possession of a person other than the person or persons in possession of such residential premises, but does not include any residential building situated within the premises declared under paragraph 16 of the Schedule to be a big mansion or hotel: Provided that where any building or premises not so declared consist of more than one residential unit, and a such units are in the possession of several persons, then unless the Chief Settlement Commissioner orders otherwise, the whole of said building or premises shall be deemed to be a house; ' Provided further that where 141e area of the gardens and grounds attached or appurtenant to a house exceeds three times the plinth area of the house including outhouses and garages, if any, the area so in excess, or such part thereof as the Chief Settlement Commissioner may determine, shall not be treated as part of the house.
(6) "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."
(12) "Shop."-- Shop means Evacuee business premises of any value in an urban area or of the value of ten thousand rupees or more in a rural area together with godowns or store-house, but does not include any building situated within the premises of an Industrial concern, or a building or premises declared under paragraph 16 of the schedule to be a Big Mansion" or hotel or such class of business premises in a rural area as may be declared by the Cntral Government, by Notification in the official Gazette not to be shops within the meaning of this clause.
7. ' Province that where any building or premises not so declared consists of more than one business unit, and such units are in possession of several persons, then unless the Chief Settlement Commissioner, orders otherwise, the whole of such building or premises shall be deemed to be a shop: Provided further that where any such building or premises consists of both residential and business units, the Chief Settlement Commissioner may order that the whole of such building or premises, or such part or parts thereof as may be specified in the order, shall be deemed to be a shop or a house."
8. ' Section 30. Protection of certain occupants.--(i) 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 transfers: ' Provided that:-- ' it shall be lawful for the transferee to charge a rent on the basis of the latest assessment carried out by the municipal or local authority, as the case may be, for other properties in the locality generally, and ' 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).
9. ' 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.
10. ' Nothing in proviso (b) to subsection (1) shall apply to a tenant:-- ' 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."
11. ' On behalf of the petitioners Mr. Rasheed A. Rizvi, Advocate advanced the arguments and Mr. Akhtar Mahmood argued the matter on behalf of the respondents. Since the counsel on both sides have drawn my attention to some decisions of the Supreme Court, Single Judges of this Court and Lahore High Court, which have made observations on the point in question, I would make a brief mention to these decisions before considering the arguments advanced on behalf of the owners and the trespassers regarding the true meaning of the word `possession' in the said Act.
12. ' It would appear from the decisions (decided by Single Judges) cited before me that all along till 1989, it has been the consistent view expressed in the decisions of Single Benches of this Court and Single Bench of Lahore High Court that structure on plot used for residential/shops purposes since 1949 was accretions to plot. The effect of which is that, it has changed the character and nature of the premises.
13. ' In Ayoob and another v. Masjid-e-Noman 1973 SCMR 604 open plot which was used for running fodder business was trespassed to the respondent. The respondent filed suit for possession and mesne profits against the appellant. The appellant contested the suit. The trial Court on assessm ent of evidence on record decreed the suit. The first appeal was well as second appeal preferred against the decree were dismissed. The appellant filed appeal before the Supreme Court of Pakistan. The appellant contended that the property in suit was transferred to the respondent under the Settlement Scheme and he had become statutory tenant of the respondent in terms of section 30 and was entitled to the benefit of the provisions of section 30. The conclusion was that the land in suit was a shop within section 2(12) of the Act as such the provisions of section 30 were applicable. The Honourable Supreme Court repelled the contentions and held:- "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, 1959, 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.
14. ' Besides, section 30 applies only to an 'evacuee house or shop' and the disputed premises as already held by us is not such a shop. The appellants' contention that 'shop' under section 30 has a different meaning other than 'shop' under section 2(12) is untenable on the accepted principles of construction of a statute.
15. ' The appeal is accordingly dismissed without any order as to costs. We grant three months' time from date to the appellants to vacate the premises in question."
16. ' In PLD 1976 Lahore 831, the respondents in both the appeals were transferees under the Displaced Persons & Compensation Act, 1958 of open plots. The appellants were in occupation. In the first mentioned case, there was a building and the appellant was using the same for business purposes as a shop. In the other case the appellant was using it as a residential house. The respondent filed eviction application on the ground of default. The appellant contested the eviction application on the ground that he was not a statutory tenant. The eviction application was dismissed. This order was reversed in appeal with the findings that the appellant was in occupation of a house, therefore, the Rent Controller had jurisdiction to evict him. The appellant filed second appeal and contended that as the property was transferred as plots by the Settlement authorities, they were not statutory tenants under section 30 of the Act. The evidence on record shows that at the time of transfer, there were structures at the plots which were used by the appellants as a house and a shop. The admitted position was that some katcha structures did exist thereon, one in the form of a Dhhara for tethering the mach cattle and the other, rooms for residential purposes. On this actual position, the contentions of the appellants were repelled and the appeals were dismissed.
17. ' In 1984 CLC 3227 four plots were transferred to the respondent under Settlement Scheme. The appellant after raising construction was using the same for residential purpose. The respondent filed eviction proceedings against the appellant. The appellant contested the eviction application.
18. The Controller passed an eviction order against the tenant. The tenant filed appeal in this Court.
19. The appellant contended that since only the plot was transferred to the respondent, the same could not have been the subject-matter of the rent proceedings. The appellant pleaded in his written statement that he raised constructions over the plots he was using them for residential and commercial purposes. The learned Single Judge observed that no doubt the premises have been transferred to the respondent as open plots by the Settlement authorities but constructions have been raised thereon as early as 59/60, and they were being used for commercial and residential purposes at the time of transfer. A Single Judge of this Court repelled the contention and held that a statutory tenancy was created and ejectment of such tenant could only be secured through the forum of Controller under the Sindh Rented Premises Ordinance, 1979.
20. ' In Riazuddin v. Haji Muhammad Aslam represented by Legal Heirs and 2 others PLD 1985 Karachi 411 the facts of the case were that plot of land was transferred to the respondents. The respondents filed suits against the appellants for possession on the ground that the appellants were trespassers. The suit was dismissed. The judgment was affirmed in second appeal. The respondent then filed 15 eviction applications against the appellants before the Controller. The appellants resisted the eviction applications. The appellants had committed default of the tentative order. The respondents filed applications for striking off defence which applications were allowed. The appellants filed first rent appeals which were dismissed in limine. The appellants filed second appeals in this Court. In that case it was observed that:- "It cannot be urged that the premises in occupation of the appellants are open plots as admittedly according to the appellants' own showing there exist structures since 1949 on the plot which are used for residential purposes."
21. ' The appeals were dismissed.
22. ' In Hashim v. Mrs. Hamida Begum and another PLD 1987 Karachi 151, the respondents who are transferees of an open plot of land, instituted a suit for possession and mesne profits against the appellant in respect of a shop premises, which is constructed on the said plot. The appellant contested the suit and took the plea that his possession in respect of the shop is protected under the provisions of section 30 of the said Act. The trial Court rejected the plaint on the ground that the suit was not maintainable. The first appellate Court reversed the finding, and reached the conclusion that since the premises, in respect whereof the suit was instituted by the respondent was an open building site, the protection claimed by the appellant under section 30 of the said Act was not available and, as such, the suit before the Civil Court for possession and mesne profit was maintainable. On such consideration, the judgment and decree of the trial Court were reversed and the suit was remanded back to the trial Court for decision according to law. In second appeal the judgment of the first appellate Court was reversed. It was held that the ratio decidendi in the case reported in 1984 CLC 3227, referred to above, supports the contention of the appellant that, where the property transferred to a person under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, is a building site on which construction existed which is either used as a commercial or a residential unit, then the occupant of such construction shall be deemed to be a tenant of the transferee within the meaning of section 30 of the said Act. In this view of the matter, the second appeal was allowed and the judgment and decree of the trial Court was restored.
23. ' In Civil Revision Applications No.92 of 1984 and 31 other revisions decided on 16-5-1989, I held as follows:-- "A review of these authorities therefore leads to the conclusion that the principle is well-established that where the property transferred to a person under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958, is a building site on which construction existed which is either used as a shop or a house, then the occupant of such construction shall be deemed to be a tenant of the transferee within the meaning of section 30 of the Act."
24. ' In Mst. Shahar Bano v. Quadria and another 1986 SCMR 1727 the facts of the case are that the respondents were the transferees of a plot of land under the Settlement Law. After the transfer the respondents served a notice upon the petitioner and one another as they were in joint occupation of the plot under section 30 of the said Act. As the petitioner did not respond to the notice, the respondents filed a suit in the Civil Court for possession against the occupants on the plea that they were unauthorised occupants of the plot and were, therefore, liable to be evicted. The petitioner and other occupants contested the suit denying the allegations that they were in unauthorised possession of the plot and claiming that the title in the property vested in them on the basis of a gift. The trial Court held that the petitioners were trespassers. Accordingly the trial Court passed a decree in favour of the respondents for possession of the disputed plot. The petitioners challenged the decree in appeal which was dismissed by the District Judge, Sanghar who affirmed the decree passed by the trial Court. The petitioner then challenged the judgment in a revision which also met the same fate. The petitioner filed petition for special leave to appeal which was dismissed. While dismissing the petition, the Honourable Supreme Court held:-- "However, as rightly held by the High Court the property in dispute was transferred as an open plot to the respondents and as such section 30 which creates statutory tenancy in favour of occupants of houses and shops transferred under the Settlement Laws, plaintly is of no avail to the petitioner.
25. Besides the case of the petitioner and the other occupant was never that they were tenants of the Custodian in the property or on transfer, of the transferee. In view of this clear legal position the petitioner's possession was not protected under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958."
26. ' Mr. Rasheed A. Rizvi, the learned counsel for the petitioners places considerable reliance on the category of cases which have consistently taken the view that where the property transferred to a person under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, is a building site on which construction existed, which is either used as a commercial or a residential unit, then the occupant of such construction shall be deemed to be a tenant of the transferee within the meaning of section 30 of the Act. Mr. Akhtar Mahmood, the learned counsel for the respondents, however, submitted that these decisions have no binding force as precedents, and I am entitled to take a contrary view.
27. Mr.Akhtar's objections to decided cases being considered as having binding force are these. Firstly, according to him, these decisions are per incuriam as they were rendered ignoring the plain statutory provisions of sections 2(4), (6) and (12) which only use the words house, possession and shop. Secondly, these decisions cannot stand with the ratio decidendi of the Supreme Court judgments reported in 1973 SCMR 604 and 1986 SCMR 1727. A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute. The rule apparently applies even though the earlier Court knew of the statute in question, if it did not refer to and had not pressed to its mind, the precise terms of the statute. Similarly, a Court may know of the existence of a statute, and yet not appreciate its relevance to the matter in hand, such a mistake is again such incuria as to vitiate the decision. These are the commonest illustrations of decision being given per incuriam, in order that a case can be decided per incuriam, it is not enough that it was inadequately argued. It must have been decided in ignorance of a rule of law binding on the Court, such as a statute (see the observations in "Sahnond on Jurisprudence", Twelvth Edition, peges 150 and 169).
28. ' Mr Akhtar Mahmood drew my attention to a decision of the Court of Appeal in Young v. Birstol Aeroplane Company Limited, (1944) 1 KB 718. At page 729 of the report, it is observed:- "Where the Court has construed a statute or a rule having the force of a statute its decision stands on the same footing as any other decision on a question of law, but where the Court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute the position is very different. It cannot, in our opinion, be right to shy that in such a case the Court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provision was not present to its mind. Cases of this description are examples of decisions given per incuriam. We do not think that it could be right to say that there may not be other cases of decisions given per incuriam in which this Court might properly consider itself entitled not to follow an earlier decision of its own. Such cases would obviously be of the rarest occurrence and must be dealt with in accordance with their special facts... .........."
29. ' On a careful examination of the whole matter we have come to the clear conclusion that this Court is bound to follow previous decisions of its own as well as those of Courts of co-ordinate jurisdiction. The only exceptions to this rule (two of them apparent only are those already mentioned which for convenience we here summarise).
(2) The Court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords.
(3) The Court is not hound to follow a decision of its own if it is satisfied that the decision was given per incuriam."
30. ' The contention of Mr.Akhtar Mahmood is that, all the decisions of this Court referred to above, which in effect, take the view that the persons who are in possession are tenants of the transferee, are not binding on me as precedents, as they were given per incuriam in ignorance of the plain wording of sections 2(4), (6) and (12).
31. ' The definitions of the terms, "house", "possession" and "shop" appearing in S. 2(4), (6) & (12) have already been quoted in the earlier part of this judgment.
32. ' The First Schedule to the Act provides manner of disposal of Urban Evacuee Property. Part III thereof describes the manner of disposal of building sites. Para. 13 thereof provides that:-- "13. An evacuee building site which has been--- (1)
33. (2)
(3) In unauthorized possession of any person and that person has constructed a permanent building on it, then that site shall be transferred to that person on payment of the prevailing market value plus fifty per cent. Of such market value: ' Provided that no such additional price shall be charged if that building site forms part of an area on which displaced persons have raised a number of permanent houses, dwellings or shops so as to form a cluster or colony."
34. ' Para. 14 thereof provides that:- "(14)All vacant evacuee building sites not falling under paragraph 13 shall be sold to the highest bidder in an unrestricted public auction."
35. ' Explanation provides that-- "A site on which no permanent building exists shall be deemed to be a vacant evacuee building site, and in the case of a dispute whether or not a particular site is a vacant evacuee building site, the decision of the Chief Settlement Commissioner or any other officer authorised by the Central Government in this behalf shall be final."
36. ' In the light of the above, I have to examine about the position of the petitioners. It has come on record that the petitioners were not allottees of the plot in dispute. It has also come on record that they have never paid any rent to Custodian. The trial Court on appreciation of the material on record, found that the predecessor-in-interest of the respondents was the transferee of the plot in dispute. He also found that the petitioners were deemed to be unlawful occupants and trespassers.
37. In this view of the matter he held that they are not entitled to protection of provisions of section 30 of the Act. The said finding has been maintained in appeal. Finding of fact reached by the Courts below in the result of appreciation of evidence made by them is not open to interference in revisional jurisdiction. It is not the case of the petitioners that any evidence brought on record had been ignored or that the evidence had not been read properly.
38. ' It is not possible for me to readily infer that the said decisions were rendered per incuriam. It is difficult for me to conclude that'the learned Judges were unmindful of the precise terms of the section.
39. The dictum laid down in 1973 SCMR 604 and 1986 SCMR 1727 is applicable to the facts of the instant case.
40. ' Mr. Akhtar Mahmood, however, is on stronger grounds in his submission that the said decisions were precedents sub silentio, since they were denied without arguments on the basis of the position in law which was assumed by the Court. The circumstances in which a decision is said to be arrived at sub silentio have been described in "Salmond on Jurisprudence", Twelvth Edition (at pages 153-154).
41. I am of the opinion that the Courts below have exhaustively examined the evidence and in the result of scrutiny reached a correct decision on issues of ownership and trespass. I see no good reason to interfere with the well considered findings of the Courts below.
42. ' In the result, the revision fails and is dismissed. However, in the circumstances of the case, there will be no order as to costs.