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Petitioner: MUHAMMAD MOOSA AND 2 OTHERS VS Respondent: SHABBIR AHMAD AND ANOTHER
Court Name: Sindh High Court Judge(s): Ibadat Yar Khan, Ali Madad Shah Title: MUHAMMAD MOOSA AND 2 OTHERS vs SHABBIR AHMAD AND ANOTHER Case No.: First Rent Appeal No, 43 of 1983 Date of Judgment:1984-05-19 Reported As: 1984 CLC 3227 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' IBADAT YAR KHAN, J.-This is the tenants' appeal against the order of ejectment passed against the appellants on the allegation of long default payment of rents. The order came to be passed by the learned Rent Controller, Larkana, on the 31st of March, 1983 in the following circumstances :- ' Plots bearing Survey Nos. 863/8,863/9-A, 863/9-B and 863/10 were purchased by respondents from the Settlement authorities in an open auction. Mutation was effected in their favour in the record of rights. This, they became owners/transferees of the property. The respondents sent a notice, dated 24th of May, 1981 through their Advocate to the appellants complaining that in spite of requests and reminders the appellants had neither paid any rents nor had vacated the premises. The notice concluded in these words : You are, therefore, hereby informed by this notice that you vacate the said premises and hand over the possession thereof to my client and pay the mesne profits due against you within 15 days from the receipt hereof, failing which my client will be constrained to seek remedy against you in the Court of law and you will be responsible for cost and other expenses, which may please note." There was no reply to this notice. The respondents, therefore, filed this application praying for ejectment of the appellants from the premises. After stating that they had purchased the property and were owners of the same, they put up their case against the appellants thus : "(3) That the opponents are statutory tenants thereof and possessed jointly and are defaulters in payment of the rent and made some illegal structure thereon temporary. (4) That the applicant has served the notice upon the opponents in the month of May, 1981 and were also served in 1978 and demanded the rent from the opponents but neither rent was paid nor any reply were given by them.
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(5) That the applicant bona fidely requires the said plot for personal use. (7) That the opponents are fully defaulters and did not pay any rent since the applicant became owner and the written notices were served upon them but all are in vain. (8) That the applicant is entitled to receive the rent arrears of last three years with the rate of rent fixed by the assessing authorities from the opponent of the said property. (12) That the applicant prays for judgment and decree as under : (I) This Hon'able Court be pleased to order directing the opponents to put the applicants (landlords) in the peaceful possession of plot bearing C. S. Nos. 863/8, 863/9-A, 863/9-B and 863/10 Ward 'C', Larkana. (ii) Award costs of the suit." ' The three appellants filed "objections" jointly. They admitted the ownership of the respondents but denied the liability to pay rents. They had taken a peculiar position and stuck to it till the end before the learned Rent Controller. I may, however, state that in this appeal before me they have deviated from the position they had taken and I will discuss this change in their attitude at a later stage after I have discussed pleas which were raised before the Rent Controller and which have been examined in his order under appeal before me. I would reproduce the stand taken by them in their objections :- (2) "Para. (1) of the application is denied. It is submitted that the disputed property has been sold by the Shabir Ahmed real owner to me and other opponents at the rate of Rs, 3 per square feet before the witnesses, vide an oral agreement during 1978, as such he has taken the amount viz. Rs, 1,977 from me and Rs, 2,379 from Muhammad Moosa and Rs, 1,548 from Akhe Khan. The possession of disputed plots is lying with opponents, since 1959-60 which is evident from the receipt of drainage Tax paid by Muhammad Moosa (Copy of the same is enclosed herewith). It is further added that plots in question were in zig-zag condition which were developed by opponents by spending huge amount on it and made the construction on it as such I have made the office into the same since 1970-71, hence the applicant has no right or title to recover the rent from opponents. (3) Para. (3) of the application denied. It is submitted that Shabir Ahmed has not given the notice in stipulated period to opponents. Even after that he has sold the disputed property to me, and others, hence the question of default in payment of rent to applicant does not arise. (6) Para. (6) of the application denied. It is submitted that Shabir Ahmed real owner has sold the disputed property to me and others hence he has no title over the property in dispute any more. Therefore, the question of making the construction or developing by applicant does not arise. The applicant only intends to sell the disputed property to others illegally. (7) Para. (7) of application is denied. It is stated that the disputed property is already sold by Shabir Ahmed to opponents hence never demanded the rent since 1978 as yet from opponents hence the question for default in payment made by the opponents does not arise. The opponents would file the suit for specific performance of contract against applicant." ' The parties then led evidence. The applicants' attorney Muhammad Anwar filed an affidavit-in- evidence. He was cross-examined. In paras. 2 and 3 of his affidavit he made out the case of the respondents and I will quote his statement : "(2) That the property in dispute bearing C. S. No, 863/8, 863/9-A, 863/9-B and 863/10 Ward 'C', Larkana is the property of applicants and same is from a continuous one plot and the opponents are in joint possession thereof as statutory tenants thereof to the applicants. (3) That the applicants have never sold out the premises in question to opponents through oral agreement or amount was received by the applicants or from any other person in respect of the premises in question. The alleged transaction and amount by the opponents is false, fabricated."
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' All the three opponents Muhammad Moosa, Deedar Hussain and Akhey Khan filed affidavits-in- evidence and were cross-examined. In addition to these supporting affidavits of Mehar Ali Sheikh, Shamsuddin Rajput, Roshan Ali Kalhoro and Muhammad Bux Kalhoro were also filed. The common feature of these affidavits is that the property has been purchased by the opponents under an oral agreement and the consideration has also been already paid. On these pleas and on this evidence the learned Rent Controller has passed the impugned order. He has formulated the following points for determination :- Point No, 1. Whether the applicants are the owner and landlords of the disputed property and the opponents are their tenants ? Point No, 2. What is the rate of rent ? Point No, 3. Whether the opponents have committed default in payment of rent ? Point No, 4. Whether the property in dispute is required by the applicants for their personal use ? Point No, 5. What should the order be ? ' As the grounds of personal need have not been accepted by the Rent Controller nor any grievance has been raised before me I would confine the discussion on the point of default which has been examined by the learned Rent Controller and on which the adverse findings have been recorded against the appellants. The learned Rent Controller in his order has examined this position and I may quote a portion of his order which runs as follows :- "The only contention of the opponent is that since the property in the suit has been sold out to them by applicant No, 1, hence they are not tenants of the applicants. But this plea of the opponents is mis conceived and devoid of any force as for determining the question of landlord and tenant the primary thing is the ownership of the property which has been established by the applicants and further the applicants have proved to have been served notice of demand of rent served upon the opponents. As such mere transaction of sale if any does not absolve the tenants (opponents) from their liabilities to pay the rent and also the agreement to sell does not confer any right of ownership upon the vendee until and unless the registered sale-deed is not executed and then the liability to pay the rent comes to an end. I, therefore, in view of my above reasons and the documentary proof brought on record by the applicants hold that the applicants are the landlords and the opponents are their tenants who are bound to pay the rent to the applicants and there existed their relationship between landlord and tenant. Point No, 1 is, therefore, answered in the affirmative." ' These were the findings of the learned Rent Controller. But they are not challenged in this appeal. Instead of arguing the case on this plea the learned counsel for the appellants has advanced lengthy arguments and has not even adverted to the plea of purchase of property during his arguments as was the case set up by him. According to him he is entitled to change his position and argue his case differently because as he puts it, it is a question of law and can be raised any time. The contention of the learned counsel is that admittedly the appellants are not the tenants of the premises by agreement of parties. They would surely become statutory tenant under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act but only if the requirements for creation of such a tenancy under the statute are fully complied with. The transferee landlord would be entitled to claim rents after he has served notice under section 30 of the Act. On the point of notice I may say that in para. 7 of the affidavit of Deedar Hussain, one of the appellants, it was denied that any such notice was ever served on them. Para. 7 is as follows :- "That Shabir Ahmed neither given notice nor demanded rent from us as he sold out the same to us to his own accord." ' But in the cross-examination this witness made the following statement "It is a fact that I was served with the notice from the applicant's Advocate but no reply has been given to the applicant's Advocate.
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' Once the service of the notice is accepted there was hardly any point to deny the liability to pay rents but the learned counsel contends that the property involved is open plot and as such is not covered by the provisions of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act under which such statutory tenancy can be created. Section 30 of the Act runs as under :- (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 (acknowledgement 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 or injurious to the property nor shall anything therein apply to the tenant of any house or shop, 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." ' Learned counsel contends that the property in question is neither a house nor a shop but an open plot and as such would be out of ambit of the provisions of section 30 and as such the statutory tenancy could not be created in this case. In support of his argument the learned counsel has relied upon a case Ayoob and another v. Masjid Nauman (1). Before I examine the impact of this case, I would rather refer to some other cases relevant for this part of the argument. ' Now shop has been defined in section 2(12) of the definition clause of the Act as shop means "evacuee business premises of any value in an Urban (1) 1973 SCMR 604 area or of the value of ten thousrnd 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
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such class of Business Premises in a rural area as may be declared by the Central Government, by Notification in the official Gazette not to be shops within the meaning of this clause." ' The expression "business premises used in the definition of shop has been examined in a very well considered judgment of Mushtaq Hussain, J. In Shoukat All v. Abdul Hamid (1). At page 15 of the report the learned Judge explains this expression in the following terms :- "It is, therefore, not necessary to stretch etymology or imagination for the purpose of holding that the expression 'premises' also connotes land and would, therefore, cover an open plot, unless the statute, in which it is being used, treats it as word of art and it goes without saying that in such a case the interpretation clause of such statute will state the meaning with which it is to be clothed in that statute. The word 'premises' does not find any mention in section 2, which is the interpretation section of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. It is, therefore, proper that it should be given the meaning which it has in common acceptance." ' In the end the learned Judge summarised his conclusions as follows :- "(a) the word 'premises' unless used as a term of art in a statute, is to be understood as including land whether as a part of a building or independently of it ; (b) that this word has not been used as a term of art in section 2(12) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 ; and, therefore. (c) evacuee land, which is being utilised as business premises and has been acquired under section 3 of the Act, is covered by the definition 'shop' for the purposes of section 30 of the said Act." ' In the above case also the question involved was whether an open plot which was used for the purposes of tethering cattle and running a fuel wood business and was treated as an open plot could fall within the ambit of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act creating a statutory tenancy to which the provisions of sections 13 and 2 of Urban Rent Restriction Ordinance could apply and it was held that this plot was governed by the provisions of Rent laws and proceedings for ejectment from the plot filed before a Rent Controller were competent. ' Another case relevant for the purpose of this case has been decided by Aftab Hussain, 5. And is reported as Zainab Bibi and 5 others v. Iqbal Begum (2). In this case it was held that a plot on which structure of temporary nature has been raised and which had been transferred by the Settlement Authority as a vacant building site should be treated as a house to which the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959 would apply and the Rent Controller would have jurisdiction to deal with such a plot and pass orders in disputes arising between the parties as disputes between landlord and tenant within the meaning of the (1) PLD 1969 Lab. 12 (2) PLD 1974 Lah. 350 ' Ordinance. There is another short judgment reported in 1970 SCMR 498 in which Mr. Justice Muhammad Yaqub All sitting with late Mr. Justice Wahiduddin Ahmed observed that section 30 was applicable to a case of person occupying ..a flat in a big mansion although big mansion was not mentioned in section 30. It was held :- "A big mansion is no doubt excluded from the definition of a 'house' for the purposes of its transfer under the Displaced Persons (Compensation and Rehabilitation) Act, but it does not cease to be a house or a shop within the purview of section 30. A person in possession of a tenement in the big mansion, therefore, becomes a statutory tenant under the transferee and is entitled to the benefits provided therein." ' Another case which may profitably be mentioned is a case reported in PLD 1971 SC 573 in which the property involved was an open plot bearing No, 5/333 situated in Sabzi Mandi, Gujrat. Ejectment proceedings were filed by the transferee against the occupant of this plot on the assumption that statutory tenancy was created between the parties on the basis of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act. The dispute developed regarding the quantum of
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rent and the matter went right upto .He Supreme Court. The following observations were made in the judgment which may be reproduced :- "As already stated under section 30 of the Displaced Persons Act, a person in possession of an evacuee property shall be deemed to be a tenant of the transferee on the same terms and conditions as payment of rent or otherwise on which he held it immediately before the transfer ...... ...In this background it cannot be said that the Rent Controller by fixing the tentative rent at Rs, 50 has acted arbitrarily or capriciously." ' This is the state of law so far as the question of open plot is concerned. But a case reported in 1973 SCMR 604 has been relied upon by the learned Advocate for the appellant and it deserves a special mention. In this case open plot of land which was used for running a fodder business by the appellants was transferred to the respondent mosque namely, Masjid-e-Noman. On the failure of the appellants to vacate the plot for the use of the Masjid, the Masjid filed a suit for possession and mesne profits against the appellants/occupants. This suit was decreed by the trial Court and the first appeal as well as the second appeal preferred against the decree were dismissed. The appellants/occupant filed an appeal before the Supreme Court against these three concurrent judgments and the main contention raised there was that the property involved was transferred to the mosque under the Settlement scheme and they had become statutory tenants of the mosque in terms of section 30 and were entitled to the beneficial safeguards provided for a tenant under the second proviso of this section. In other words the contention was that the remedy of suit chosen by the mosque for the eviction of the appellants was misconceived. The contention was that the disputed land was a shop within the definition of section 2 (12) of the Act and as such the provisions of section 30 were applicable. The defence on behalf of the mosque was that it was neither a shop nor a house but an open plot in occupation of the appellants where they were running a fodder business in partnership. Moreover, their occupation of the plot was not "possession" which has been defined by section 2(6) of the Act. Dealing with these contentions the Court held 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 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. ' 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 33 has a different meaning other than 'shop' under section 2 (12) is untenable on the accepted principles of construction of a statute. 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."
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' The appeal was dismissed as shown above and the contention that the case was covered by section 30 was overruled primarily for the reason that it was a case of an open plot which was beyond the purview of section 30. The additional ground to exclude this plot from the operation of section 30 was that the possession of the appellants was not the possession as defined in section 2(6) of the Act and for this reason also the provisions of section 30 were inapplicable. This case should have concluded the controversy in favour of the appellants in spite of balance of authority and the weighty opinion of the Courts expressed in the cases mentioned in the earlier part of this judgment. But this case came to be examined very closely by Muhammad Afzal Zullah, J. (as he then was) in the case of Muhammad Iqbal v. Mehraj Din and another (1). In this case question arose whether a statutory tenancy was created between occupants and transferees of open plots under the Settlement Scheme by force of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act. If so, then the proceedings for ejectment of the tenants filed before the Rent Controller and an order of ejectment passed in those proceedings was sustainable, if not then the order of ejectment passed by the Rent Controller was without jurisdiction. The facts of the case were that two plots were transferred to Mehraj Din and others under the Settlement Scheme and P.T.Os and P.T.Ds. Were issued in their (1) PLD 1976 Lab. 831 ' favour. Muhammad Iqbal appellant was in occupation of these plots which were used as a shop and a house. Finding default in payment of rents the Rent Controller ordered ejectment of Muhammad Iqbal and passed an order for delivery of possession to the transferees. The occupant denied relationship of landlord and tenant and questioned the validity of the order passed by the Rent Controller contending that there was no statutory tenancy between the parties as open plots were excluded from the provisions of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act. It was held that although the Settlement Authorities had transferred the premises as open plots but at the time and before the transfer there were…
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