This F.R.A. Is directed against the order dated 27-2-1985 passed by the learned Controller, Hyderabad dismissing an eviction application brought by the applicant against the respondent (since dead and represented by his legal representatives) in respect of shop bearing C.S. No.B/1792 situated at Akal Bhanga Lane Foujdari Road, Hyderabad.
2. Appellant being transferee of the shop in dispute by virtue of P.T.D. Dated 20-2-1976 followed by mutation in the city survey record vide entry dated 26-12-1978 treating the respondent as his statutory tenant by virtue of his occupation since before 20-12-1958 called upon him to pay rent by notices under registered post A/D but the same were refused and returned to the appellant with the result that he invoked the jurisdiction of the Controller for eviction of the respondent on the ground of default in payment of rent.
3. Respondent resisted his eviction and took the plea that the disputed shop premises being Evacuee Trust Property, he was paying rent therefor to the said agency and thus denied default on his part. He accepted his occupation of the shop but denied to be statutory tenancy therein as well as receipt of statutory notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
4. On the pleadings of the parties learned Controller settled the following issues:--- .
(i) Whether the relationship of landlord and tenant exists between the parties?
(ii) Whether the opponent has been duly served with a statutory notice under section 30 of Displaced Persons (Compensation and Rehabilitation) Act, 1958?
(iii) What should the order be?
5. Both the parties filed affidavits in evidence and were cross-examined respectively. Besides examining his attorney Raees Baig the appellant adduced the evidence of Muhammad Younus, Sharifuddin as well as Muhammad Tufail, Rent Collector in office of Evacuee Trust Property Board, Hyderabad.
6. On assessm ent of the evidence learned Controller came to the conclusion that there was no relationship of landlord and tenant between the parties therefore, the appellant should approach the Civil Court for declaring his title to property before invoking the jurisdiction of the Controller. In view of this finding he refrained from recording any finding whether statutory notice was duly served on the respondent.
7. Learned counsel for the parties have addressed this Court at quite some length and with their assistance I have gone through the evidence on record.
8. There is no denial of the fact that the shop bearing C.S. No.B/1792 was transferred to the appellant in an open auction and a P.T.D. Was duly issued in his favour after the payment of due consideration by the Settlement Department. Initially the survey number of the shop was shown as B/1793 but it was corrected by the Deputy Settlement Commissioner, Hyderabad vide order dated 22-11-1973 and such correction incorporated in the document of transfer Exh.22. The statement of the appellant that after the transfer of the demised shop premises in his favour the record of rights was mutated in his favour in the city survey record has not been rebutted. There is further evidence of Muhammad Younus Qureshi, Record Keeper in the Office of Deputy Settlement Commissioner, Hyderabad stating that in the first instance P.T.O. In respect of the shop in question was issued in the name of Jamiluddin son of Allauddin (respondent) on 23-12-1959. Demand notice was sent to him on 22-3-1966 but due to non-payment of price his entitlement was cancelled and intimation to this effect was sent to him on 31-10-1966. The property was then diverted to compensation pool and transferred to the appellant in a public auction. He confirmed that the transfer order as issued in the name of the appellant on 20-2-1976 which was duly corrected.
9. Adverting to the case set up by the respondent that the shop in question in fact is an Evacuee Trust Property there is adequate and satisfactory evidence of the Rent Collector serving in the Office of the Evacuee Trust Property Board, Hyderabad stating that the said organization treated the shop in dispute as 3vacuee Trust Property but after the transfer thereof in favour of the appellant he department had preferred an appeal before the Commissioner Settlement department which was dismissed whereafter the department filed Appeal No.47 of 1970 from the order of the Settlement Commissioner before the High Court of Sindh which too was dismissed on 21-3-1974 by Fakhruddin G. Ebrahim, J. (as his lordship then was). It can, therefore, be safely concluded that the appellant is the transferree of the shop premises in which the occupation of the respondent was never disputed.
10. Aforesaid evidence in my view is enough and adequate to hold that the property did not enjoy the status of Evacuee Trust Property as wrongly pleaded by the respondent. Learned Controller was therefore, not justified in finding that the disputed shop being Evacuee Trust Property, appellant should invoke the jurisdiction of competent Civil Court to have his title cleared.
11. Since the respondent was duly served with the statutory notice under section 30 of the Displaced Persons (C&R) Act as evident from the record, in aw he was bound to pay rent to the appellant after the transfer in his favour. Saving held above it would appear that admittedly not a single penny was paid by the respondent to the appellant by way of rent and in fact there is no controversy about this factual aspect of the case. In the circumstances I allow this appeal, set aside the impugned order and direct eviction of the respondent within sixty days of this judgment.