MIAN ALLAH NAWAZ, J.- This second appeal, by Haji Muhammad Ashraf/successor-in-interest of Fazal Karim/tenant, is a classic paradigm of procrastinative and tortuous litigation. The dispute, herein, pertains to shop No.5- 64-R-90, New-Anarkali, Lahore, lt shall be hereinafter described as 'rented premises/property in dispute'. Muhammad Ashraf appellant is tenant. He is successor-in- interest of originally tenant namely Fazal Karim. Muhammad Yaqoob and others/respondents Nos.
1-A to 1-E are the legal heirs of Muhammad Yaqoob who was the successor-in-interest of Sh.
Muhammad Siddique/original transferee.
2. In order to appreciate the respective pleas of the parties, it seems necessary to recount the necessary facts in detail. Muhammad Siddique/original transferee came to Pakistan as claimant displaced person. His claim was verified on 2-5-1960. He was transferred house No. S-II-7S-1 situated at Dhani Ram Road, Lahore. Thereafter, he purchased two shops including rented premises in open auction on 2-4-1960. In order to pay its price, he deposited compensation book issued by the Claim Commissioner. Unfortunately, he was involved in a feud with Fazal Karim who was brother-in-law of a Settlement Commissioner (Policy) and who was his co-allottee in an industrial concern: This did not augur well for him. His compensation book was cancelled by the Claim Commissioner on 7-5-1962. Against this, Muhammad Siddique filed Writ Petition No. 541/62 which was allowed on 3-4-1963 with an order of remand to the Claim Commissioner for decision afresh. Feeling aggrieved, Fazal Karim filed CPSLA No. 24/65 which was dismissed by the Apex Court on 13-1-1966. Fazal Karim's application for review' met the same fate. Pursuant to the aforesaid order, the Claim Commissioner reverified his claim but for a meagre amount. Muhammad Siddique filed second Writ Petition No. 263/R of 1968 which was also allowed on 17-2-1971 with another order of remand. The Claim Commissioner, even this time, verified his claim to big dissatisfaction. Muhammad Siddique, so, filed third Constitutional petition WP.No.578/78 which was again allowed with yet another order of remand. This happened on 5-11-1980. This time, the claim was verified correctly on 30-5- 1982 and so his battle with regard to his claim came to an end within a span of two decades.
3. This was, however, not only the agony of Muhammad Siddique. On 11-7-1967, the Deputy Settlement Commissioner issued a notice to him for payment of transfer price of shops and without waiting for his reply cancelled the transfer of said properties on 17-8-1967. Muhammad Siddique appealed and the Appellate Court stayed the proceedings before the authorities below.
Nevertheless the Deputy Sett lenient Commissioner transferred rented premises to Fazal Karim and other shop to Muhammad Iqbal Butt on 30-1-1968 and 26-1-1968, respectively. Against these orders. Muhammad Siddique filed separate appeals which were decided by the Appellate Authority together. These appeals to the extent of shop/rented premises was allowed but the appeal with regard to remaining properties were rejected. Against this order; Muhammad Siddique, Fazal Karim and Muhammad Iqbal Butt, all the three filed separate revision petitions which were decided on 20-11-1973. The Revisional Authority accepted the claim of transferee with regard to house but rejected his claim with regard to shops including the rented premises.
4. Against the said decision, Muhammad Siddique had to prefer W.P. No. 467/R-74. This petition was accepted by his lordship Mr. Justice A.S. Salam (as he then was) on 25-11-1985 in following terms: "In view of what has been stated above, this petition is allowed. The impugned orders are declared to be without lawful authority and of no legal effect. The transfer in favour of the predecessor-in- interest of the petitioners made over a quarter of a century ago shall hold the field and the petitioners shall get the auction price adjusted from their finally verified claim and the balance, if any, they shall pay within the next three months. Costs shall be borne by the private respondents as the Settlement Department has conceded that the transfer in favour of the predecessor-in- interest of the petitioners' could not be cancelled during the pendency of the verification of the claim."
Against this decision, Muhammad Ashraf, legal heirs of Muhammad Iqbal filed two appeals which were dismissed by a Division Bench of Apex Court. So came to end the aforesaid circuitous wrangling. Even this did not bring needed respite to house of transferee as appellant declined to pay rent to transferee or deliver its possession. Aforesaid victories were on paper only.
5. In this background respondents Nos. 1-A to 1-E/the legal heirs of transferee moved an application under Section 13 of the Punjab Rent Restriction Ordinance, 1959 (hereinafter called as the 'Ordinance') against the appellant on 25- 7-1990/contending therein that in the first instance Fazal Karim was tenant in the rented premises; that now after his demise the appellant was their tenant; that neither Fazal Karim nor appellant had paid any rent to them; that the appellant was a wilful defaulter; that the shop/rented premises was needed by them for their personal requirement. This application was resisted by appellant. It was contended therein that the relationship of landlord and tenant did not exist between parties; that the appellant had never paid any rent to the respondents; that the shop was not needed by them for their personal requirement; that the rented premises had been transferred to Fazal Karim on 30-1-1968; that title of transferee was adjudged by High Court dated 25-11-1985, the appellant had reconstructed the whole shop and invested huge amount Of money and so the appellant was entitled to compensation for the said construction under Section 51 of the Transfer of Property Act; that the application was barred by the principle of res-judicata as embodied under Section 14 of the Ordinance. Both parties led oral as well as documentary evidence. Upon consideration of the same, the learned Rent Controller decided all the issues against the appellant in favour of the respondents. On these findings, the learned Rent Controller allowed the application on 22-7-1992. On appeal the learned Appellate Authority saw eye to eye with the conclusions of forum below. This is how this second appeal has come to this Court.
5. The learned counsel for the appellant, in support of this appeal, raised follow ing points:- firstly; That the rented premises was transferred to Fazal Karim/predecessor-in-interest of appellant on 30-1-1968; that the question of title was decided by High Court on 23-11-1985 and by the apex Court on 26-4-1987; that during this period, appellant had reconstructed the rented premises with huge funds; that it was initially one storey-structure but newly constructed shop has two storeys. On the strength of the above facts, it was contended that the appellant had made improvements on the shop in good faith and so was entitled to compensation for the said construction within the terms of Section 51 of Transfer of Property Act. Reliance was placed on Kalayagunla Singara Chariu and others v Sreeman Cudimal/a lenkata Seshamma (AIR 1916 Mad.
1090), Topanmal fassionial anil another v. Chanehalmal Samatmal and another (A.I.R. 1940 Sindh 77) and Mst. Yasmin Akhtar, etc. v Mukhtar Hussain, etc. (1989 C.L.C. 2066).
Secondly: That neither Fazal Karim had paid any rent to Muhammad Siddique, original transferee nor to the present respondent. According to learned counsel, there was no relationship of landlord and, tenant between the parties and so eviction petition was incompetent.
Thirdjy: That earlier eviction application, filed by respondent, was on similar grounds; that the said application had been dismissed on 3- 5-1988 and so instant application was barred under Section 14 of the Ordinance.
6. The learned counsel for respondent, on the contrary, supported the impugned decision, In reply, he stressed that the rented premises was evacuee immovable property; that Muhammad Siddique had been transferred aforesaid property and so Fazal Karim became tenant under transferee.
Reference was made, to E.A. Evans v. Muhammad Ashraf (PLD 1964 S.C. 536). It was next argued that neither Section 51 of Transfer of Property Act nor Section 14 of the Ordinance was applicable to the facts of the case in hand. From the foregoing narration the following questions emerge for consideration:-
(i) Whether on the facts and circumstances of the case, the appellant was entitled to compensation under Section 51 of Transfer of Property Act.
(ii) Was/is there relationship of landlord and between the parties?
(iii) Whether the instant application was barred due to principle of res judicata embodied in Section 14 of the Ordinance.
7. The first question is based upon the principles embodied in Section 51 of Transfer of Property Act which reads as under:- "When the transferee of immovable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted therefrom by any person having a better title, the transferee has a right to require the person- causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the transferee at the then market-value thereof, irrespective of the value of such improvement.
The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction.
When, tinder the circumstances aforesaid the transferee has planted or sown on the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to such crops and to free ingress and egress to gather and carry them."
This provision recognises a rule of great antiquity, recognised by the Roman Civil Law and by the Common Law of England, that whatever is affixed to the soil becomes, in contemplation of law, a part of it and is subject to the same rights of property as the soil itself-"quickside p. Lantatur solo solo decil." This rule was applied by Sir Barnes Peacock in "Thokoor Chunder Poramanick v.
Ramdhone Bjmtacharjee (66) Beng L.R. Supp Vol. 595 (598): 6 Suth W R 228 (229. 23()(FB). In the following words:- "We think it should be laid down as a general rule that, if he who makes the improvement is not a mere trespasser, but is in possession under any 'bona fide' title or claim of title, or claim of title, he is entitled either to remove the materials, restoring the land to the state in which it was before the improvement was made, or to obtain compensation for the value of the building if it is allowed to remain for the benefit of the owner of the soil-the option of taking the building, or allowing the removal of the material remaining with the owner of the land in those cases in which the building is not taken down by the builder during the continuance of any estate, he may possess."
This rule was given recognition in section 51 of Transfer of Property Act. Its analysis would show that this section has three constitutive elements:-
(i) The person, claiming the relief under this provision, is transferee of immovable property.
(ii) He has made improvement in good faith that he was absolutely entitled to the property.
(iii) He is being evicted therefrom by person with a better title. Do these essentials were/are present in the case in hand.
Do the above essentials are present in the case in hand? The answer is absolutely no. Fazal Karim, no doubt, was transferred rented premises on 30-1-1968 by Deputy Settlement Commissioner regardless of the fact that the said Authority had been restrained by appellate authority to do so; that at the relevant time Sh. Muhammad Siddique original transferee/was engaged in a battle for upholding the quantum of claim and transfer of rented premises. Fazal Karim was a party to the aforesaid litigation; That aforesaid dispute started as back as 7-5-1962 and was finally resolved by the High Court on 25-11-1985 by his lordship Mr. Justice A.S. Salam (as he then was) and by the Supreme Court Bench headed by his lordship Mr. Justice Syed Naseem Hassan Shah on 26-4-1987.
Interestingly, Fazal Karim was party to first round of litigation and in second round of litigation also which reached its climax on 26-4-1987. Seen from the above factual background, it clearly follows that he was not the transferee of the rented premises and at the maximum, can be said he was trying to get the rented premises from Settlement Department by dislodging Sh. Muhammad Siddique. On this state of affairs, it is only under Section 52 of Transfer of Property Act which was attracted to controversy between Fazal Karim and transferee. This was a case of pending litigation.
Clearly, Fazal Karim was not transferee. His proprietor ship, in property in dispute, was not free from dispute. Rather, it was subject to serious genuine challenge. Briefly, he was not entitled to improve the rented premises. This rule is clearly fortified by Moti Chand and another v. British India Corporation Ltd. Cawnpore and others (AIR 1932 Allahabad 210). It was held therein:- "That this provision is applicable to transferee who has succeeded in proving that his belief was in good faith and he was absolutely entitled to the property over which he made the improvement.
Section 51 cannot be pressed into service when the provisions of Section 52 of the said Act are applicable."
8. Guided by the above rule, I have no difficulty in concluding that petitioner was neither transferee nor was absolutely entitled to the rented premises and so was not qualified to make any improvement upon the same. Seen from the above spectrum, 1 am satisfied that decisions rendered by two forums below, on this issue, are eminently correct, just and do not suffer from any jurisdictional or legal error. In my opinion. Section 51 of Transfer of Property Act does not help the appellant.
As regard the second question, it is free from any difficulty. In Writ Petition No. 704/96, I had occasion to examine the same question. It was held therein:-
(i) On the transfer of an evacuee property, the tenant or its occupant becomes tenant of the transferee by deeming expression embodied in Section 30 of Act 1958; that the occupant/tenant in the transferred property becomes tenant in the transferee by operation of law.
(ii) Such tenant or occupants cannot be ejected for a period of six years in the case of house or shop' and for a period of three years in the case of industrial concern, cinema house or printing press.
(iii) (a) Such tenant or occupant loses this protection of he fails to pay amount of rent or arrears of the rent within three months from the date of receipt of notice under Section 30(1) of Act 1958.
(c) The tenant/occupant, after the transfer of property, sublets or otherwise parted with the possession of the house or shop or any part thereof or commits any act which diminishes the value of the property.
(iv) On the expiry of protection, relationship between the transferee and tenant is to be regulated by law applicable to such relationship.
Seeing from the above angle, it is quite clear that Muhammad Siddique, original transferee purchased the rented premises in open auction as back as in 1962; that his title was upheld by the High Court and Apex Court; that at the relevant time, Fazal Karim was in occupation of the shop in dispute as a tenant of Settlement Department; that he, therefore, became the tenant of Muhammad Siddique; that neither he nor the present appellant had paid any rent to him/respondent. From the above it clearly follows that Fazal Karim as well as appellant were/are the wilful defaulter and had contumaciously denied the claim of respondents. This being the position, the learned two forums below have correctly held that relationship of landlord and tenant existed between the parties; that appellant was wilful defaulter and the principle of forfeiture of tenancy was attracted.
9. Having answered the first and second question, now I turn to third and last question. This question revolves around Section 14 of the Ordinance which is as under:- "The Controller shall summarily reject any application under subsection (2) or under sub-section
(3) of Section 13 which raises substantially the issues as have been finally decided in a former proceeding under this Ordinance."
A bare reading of the above section shows that it incorporates the principle of actual res-judicata and does not embody the rule of constructive res-judicata. The consensus of authority is that the learned Rent Controller will apply this rule subject to condition that the issues raised in the eviction application were directly and substantially in issue in the first application and were conclusively decided by the Rent Controller on merits. The disputes relating to rent matters which are of a continuous nature and same grounds can be examined by the Rent Controller in the changed circumstances of each application. If any authority is needed, reference be made to Bashir-ud-Din v. Addl. District Judge (PLJ 1985 SC 339), Moula Bakhsh >' Fa:al Din (PLJ 1982 SC 405), Azhar Inam Rizvi v. Salma Khatoon (1985 SCM R 24) and Fayyaz Akbar v. Delite House Ltd. (PLD 1988 SC 76j.
Manifestly, the earlier application was dismissed on 30-5-1988; that the right of respondents to lead evidence had been closed under Order XVII Rule 3 CPC and eviction application had been dismissed. Clearly, the respondents, at the relevant time, were busy in defending their title. The circumstances detailed above so were not mentioned in the first eviction application. These were mentioned with mathematical details in the instant eviction application and were determined by the learned Rent Controller on the basis of material adduced by the parties. I have, therefore, no doubt that the decision rendered by the learned Rent Controller on 30- 5-1988 was not on merit and so did not operate as res-judicata in the instant proceedings. Moreover, the circumstances of wilful default and personal requirement are of recurring nature and can be examined by forum below in changing circumstances. The decisions rendered by the two forums below on this issue are, therefore, unexceptional.
10. Before parting with this order, I am constrained to note that Fazal Karim/ a "local" in the first place and the appellant in the second place had been carrying this litigation with wholly unclean motives. Litigation has been prolonged with an object to deprive lawful transferees of the usufruct of the property in dispute. Such litigation can be simply designated as vexatious. For the reasons stated above, this petition is found to be wholly devoid of merit and is dismissed in limine. The learned counsel for the parties were heard in preliminary proceedings. This being so? The appellant shall pay an amount of Rs.30,000/- as compensatory costs to the respondents.