MAULVI ANWARUL HAQ, J. -- Respondent being a transferee of the suit flat, on 7.1.1970 filed a suit for recovery of Rs. 14,800/-representing due rent for the said flat at the rate of Rs. 400/- per month. Her case was that the appellant is a statutory tenant and in terms of Section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to be as the said Act) is entitled to recover rent in accordance with the latest assessment carried out by the municipality or the local authority, as the case may be, for other property in the locality in general. According to her, she served a notice upon the appellant on 12.10.1967 demanding the rent but the same was not paid. She, therefore, filed the suit for the recovery of rent at the above-said rate for 39 months ,1.10.1966. The appellant filed a written statement and contested the suit. The learned Trial Court framed issues. The relevant being issues Nos. 6 and 7 are reproduced here:- "(6) Whether the relationship of landlord and tenant exists between the parties? OPD
(7) If issue No, 6 is decided in affirmative then whether the plaintiff is entitled to rent from the defendant? If so at what rate and for what period?"
The learned Trial Court recorded evidence of the parties and found under the said issues that Section 30 of the said Act is not applicable in the facts and circumstances of the case and dismissed the suit vide judgment and decree dated 1.3.1978. The respondent filed an appeal which was heard by a learned Additional District Judge, Lahore, who allowed the same and decreed her suit on 14.1.1980.
2. Mr. C,A. Rehman learned counsel for the appellant argues that the appellant is not governed by Section 30 of the said Act rather the relationship between the parties is governed by the Rent Restriction Ordinance, 1959. He also questions the vires of the assessment, as a result whereof rent was fixed at Rs. 400/- per month. Mr. Ahmad Hassan Khan learned counsel for the respondent, on the other hand, supported the impugned judgment.
3. Learned counsel for the appellant relied on the case of The Bank of Bahawalpur Ltd. Through its Manager Vs. The Chief Settlement & Rehabilitation Commissioner, Lahore and another (PLD 1977 Supreme Court 164), while the learned counsel for the respondent relied on a judgment of a learned Full Bench of this court rendered in the same case reported as PLD 1966 Lahore 515. In fact the judgment relied upon by the appellant was pronounced in the civil appeals filed against the said judgment of the Full Bench. In order to resolve the apparent conflict between the judgments rendered by the High Court of West Pakistan in cases Haji Abdul Karim Vs. The Chief Settlement Commissioner and others (PLD 1961 Lahore 394) and Subedar Muhammad Aftal Vs. Syed Nafis Ahmad and others (PLD 1962 Lahore 45) on the one hand and Dr. Cowas C. Mehta Vs. Additional Settlement & Rehabilitation Commissioner and others (PLD 1963 Karachi 938) on the other. Mr. Justice Jamil Hussain Rizvi (as his Lordship then was) referred the matter to the Honourable Chief Justice for constitution of a larger Bench to decide the question arising in the case. A Full Bench was constituted. Mr. Justice Sardar Muhammad Iqbal (as his Lordship then was) recorded the leading opinion and answered the reference. The relevant answer for purpose of the present RSA is as follows:- "Section 30 is applicable also in case where a building or premises is declared a big mansion or hotel and is transferred by auction under para 16 of schedule. A statutory tenancy will come into being between such transferee and the persons in possession of such building or premises and their relationship will be governed and regularised by the provisions of Section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958."
4. The appeals against the said judgment were heard by a three member Bench of the Supreme Court of Pakistan. According to the opinion of Mr. Justice Muhammad Afzal Cheema (as his Lordship then was) the reference was correctly answered by the learned Full Bench and according to the judgment of his Lordship the appeals were dismissed. Mr. Justice Salahuddin Ahmed (as his Lordship then was) also recommended dismissal of appeals. However, it was observed that protection under Section 30 would be available to only such occupant of a big mansion, who is in possession within the meaning of Section 2 (6) of the said Act. It was held that none of the occupants of the said mansion was in possession within the meaning of Section 2 (6) or its meaning as extended by the notification reproduced at page 176 of report. His Lordship opined that the onus was entirely upon the occupants, who claimed protection under Section 30 of the Act to prove possession within the meaning of Section 2 (6) of the said Act and this onus none of the tenants/occupants of the mansion concerned have discharged. At the same time it was observed that Section 29 -of the said Act providing for delivery of possession of the evacuee property to its purchaser before issuance of transfer document was not attracted because of the prohibition imposed by the Chief Settlement Commissioner on ejectment of unauthorised occupants from a house. It was for this latter reason that the appeal was ordered to be dismissed. From the report one gathers that the third member i.e. Mr. Justice Dorab Patel (as his Lordship then was) agreed with Mr. Justice Salahuddin Ahmed. In my humble opinion the not effect of the judgment of the Honourable Supreme Court is that a person who is in occupation/possession within the meaning of Section 2 (6) or the deeming provisions of Notification No. F.1(27)/59- SI, dated 13.10.1959 becomes entitled to protection of Section 30 of the said Act. The legal position thus having been stated by me what remains to be seen is as to whether in the facts and circumstances of the present case Section 30 of the said Act applies or not. The learned Civil Judge on his reading of the evidence came to the conclusion that the appellant came to be in possession in the middle of 1961.
According to this finding, the appellant was not in possession and could not be deemed to be in possession within the meaning of Section 2 (6) of the said Act. However, the finding of the learned Civil Judge to the effect that notwithstanding the said factual determination an occupant simply because of the fact that he was occupying a big mansion or a part of it goes out of the ambit of the said Section 30 is patently incorrect in view of the judgment of the Supreme Court in the case of The Bank of Bahawalpur (supra). The learned Additional District Judge has taken a different view of the evidence. He has disagreed with the learned Civil Judge vis-a-vis latter's finding that the appellant came to occupy the flat after its transfer in favour of the respondent. I tend to agree with the finding recorded by the learned Additional District Judge as the same are supported by the pleadings as well as evidence on record. Exh.P-9 is a PTO that was issued in favour of the respondent on 15.9.1960. As under the law a transferee becomes entitled to recover rent from the occupant upon issuance of PTO, notice Exh.P-1 was addressed to the appellant informing him of the said fact with the demand that the rent he paid at the rate of Rs. 72 annas 8 per month and arrears be also cleared. This notice appears to have been issued on 23.12.1965. In the reply dated 4.1.1966 Exh.P-2 the respondent stated that he has paid all the arrears and that he is willing to pay the rent as demanded. No plea that he is not hound to pay rent or that he is not a statutory tenant was taken in the said reply. Exh.P-6 is the notice issued to respondent claiming rent at the rate of Rs. 400/- per month in accordance with the assessment made by the Commissioner, Lahore. Exh.P-7 is its reply. The grievance made on behalf of the appellant by his learned counsel was that the notice is not in accordance with Section 30 of the said Act. It was not averred that the appellant is not a statutory tenant. There is yet another letter dated 22.2.1966 Exh.P-3 addressed by the appellant to the learned counsel for the respondent, where in The gave the details of the rent deposited or paid prior to the receipt of notice. Again he did not say that he was not a statutory tenant. The above is the :.Correspondence between the parties before the institution of the suit. In his written statement, although the appellant with detail stressed the point that the property in question being part of a big mansion Section 30 would not be applicable, yet he never pleaded that he is not in possession within the meaning of Section 2 (6) of the said Act. It will not be out of place to mention here that the appellant is stated to be a learned Advocate. He was also represented by a learned counsel. Every possible legal objection is contained in the written statement. However, this factual plea that he came to occupy the premises after its transfer to the respondent is missing from the written statement. In this factual background the learned Additional District Judge came to the correct conclusion that there is no evidence on record to support the said plea, which is for all purposes a plea of fact. The appellant was bound first to raise the said plea and then to built it up with evidence and only thereafter could same had qualified for adjudication as to the applicability or non-applicability of the said Section 30 as interpreted in the judgment relied upon by the learned counsel for the appellant. The learned Addl. District Judge has recorded a finding-or-fact, on a proper reading of evidence. The plea of appellant that he came to occupy the flat after its transfer in favour of the respondent was violative of the well-recognized principles of law that no party is to he allowed to deviate from its pleadings and that a party is required to plead facts necessary only then he would he entitled to produce evidence to prove those pleas. A plea not taken in the pleadings cannot be allowed to be proved and no evidence can be led or looked in support of a plea, which has not been so taken. I rely on the case of Binyamin and 3 others Vs. Ch. Hakim and others (1996 SCMR 336) for the said proposition. There is no cavil with the proposition that there can be no estoppel against the law but when applicability of law, as it always is, subject to existence of certain facts then a party cannot be allowed to take refuge behind the said principle on its failure to plead and prove the said facts. The learned Trial Court in the present case proceeded to apply law in a vacuum, which cannot be allowed.
5. So far as the argument regarding the legality of the assessment is concerned, the learned counsel for the appellant has relied on the words 'of proviso (a) to sub-section (1) of Section 30 of the said Act. According to him the assessment envisaged by the said proviso ought to be by a municipality or local authority. Apparently, the assessment has been made by the Lahore Municipal Corporation. Copy of the assessment register for the year 1966-67 has been produced as Exh.P-4 showing rent of the premises in occupation of the appellant as Rs. 400/- per month.
Besides the respondent has produced an order passed by the Commissioner Lahore Division on 27.6.1967 as Exh.P-5, I find that the appellant was a party to the revision petition in which order Exh.P-5 was passed and the rate of rent was fixed at Rs. 4001- per month. The learned counsel for the appellant has also referred to Rules framed under the now defunct Municipal Administration Ordinance, 1961. The argument appears to be attractive, but it does not stand a closer scrutiny.
Under the Constitution of Pakistan, 1962, which was then in force, Taxation on lands and buildings was mentioned in the Provincial Legislative List as a separate item of legislation and came within the competence of Provincial Legislature, whereas Pakistan Immovable Property Tax Act, 1958 provided the machinery for the collection of the said 'tax and also its distribution between the Provincial Government and the local authorities concerned. The Provincial Government and its employees acted and act as agents for the concerned local authorities in the matter of collection and assessm ent of the said tax. Rule 2 (d) also, in its amended form as relied upon by the learned counsel, is subject to a direction otherwise by the Government. The officers in the hierarchy including the Commissioner for all purposes acted for and on behalf of Lahore Municipal Corporation while making the assessment, as it was the said corporation which was the ultimate beneficiary of the said taxation. The assessment, therefore, was ultra vires. No other point was urged.
6. As a result of above discussion, the RSA is dismissed with costs.