1980 PLP 1442 (CLC)

3. The appellant resisted the application denying the relationship of landlords and tenant between the parties. He maintained that before the sale of the property in favour of the respondents, the said Syed Muhammad Mukarran, who was its original owner, had executed an agreement deed in his (appellant's) favour whereby he had undertaken to sell the property to him for Rs. 14,

000. The appellant had also paid Rs. 4000 to him as part payment of the sale price. While executing the agreement-deed the original owner had also absolved him of the responsibility to pay its rent. Thus, according to the appellant, with the execution of the agreement-deed he seized to be a tenant under the original owner. It was after the execution of the said agreement deed that the respondents, who were aware of it, had purchased the property from its original owner. The sale in their favour was taken exception to by the respondents by filing a suit for specific performance of the agreement of sale. He also filed another suit seeking a declaration to the effect that he was no longer a tenant of the disputed property. In both the suits, the said Syed Muhammad Mukarram and the respondents had been impleaded as defendants. Another plea raised by the appellant was that the ejectment application was premature inasmuch as it was filed before the expiration of the period of thirty days after the service of notice under section 13-A of the said Ordinance.

4. In view of the pleadings of the parties, the learned Rent Controller framed the following preliminary issues :- (1) Whether relationship of landlords and tenant exists between the parties? O. P. P. . (2) Whether the petition is pre-mature 7 O. P. P. (3) What is the effect of pendency of declaratory suit filed by the respondent ? O. P. P.

5. The learned Rent Controller decided issues Nos. 2 and 3 against the appellant and issue No. 1 in his favour, and dismis3ed the application for his eviction.

6. Feeling aggrieved by the order of the learned Rent Controller, the respondents went in appeal before an Additional District Judge who reversed the finding of the learned Rent Controller on the first issue and held that the relationship of landlords and tenant did exist between the parties. He, therefore, ordered his ejectment on the ground that since he bad not alleged the payment or tender of rent to the respondents he was defaulter. Hence this second appeal by the appellant.

7. Learned counsel for the appellant contended that in view of the agreement of sale entered into by the original owner of the disputed property, namely, Syed Muhammad Mukarram in favour of the appellant his (appellant's) possession was protected by the provisions of section 53-A of the-Transfer of Property Act, 1882. It was also pointed out by him that according to the terms of the agreement of sale the appellant was not to pay any rent to the original doner and thus with the execution of the agreement deed in his favour the appellant ceased to be a tenant under the original owner. The argument proceeds that since the appellant was not a tenant under toe original owner at the time of the sale of the disputed property in favour of the respondents, the respondents could not be treated as his landlords. He relied on Kalimudain Ansari v. Director, Excise & Taxation, Karachi and another (P L D 1971 S C 114) Manzoor Hussain v. Nawazish Nazir Hussain and another (P L D 1976 Lah. 037) Bachu Bai F. E. Dinshaw v. Commissioner of Income-tax (P L P 1967 Kar. 372) and Muhammad Azim v. Pakistan Employees Co-operative Housing Society Ltd., Karachi and d others (P L D 1973 Note 84 at p. 119) to support his arguments.

8. While replying to the contentions raised by the learned counsel for the appellant, it was urged by the learned counsel for the respondents that since the Transfer of Property Act did not apply to the Province of the Punjab, the appellant could not take benefit of the provisions of section 53-A of that Act. He also maintained that the appellant had not fulfilled the conditions for seeking protection under section 53-A and for that reason also it could not be invoked by him. According to him the appellant continued to be the tenant of the original owner till the latter had sold the property in question in Savour of the respondents and, therefore, the respondents were landlords of the appellant qua the said property.

9. It has been concurrently held by the two tribunals below that the agreement deed, Exh. R. 1 was executed by the original owner of the property in question. Syed Muhammad Mukarram to favour of the appellant on 27th April, 1970 and it was thereafter that on 1st August 1970 he had sold the disputed property in favour of the respondents by means of a registered sale-deed. In the case of Kalimuddir Ansari,' cited by the learned counsel for the appellant, It was ruled by their Lordships of the Supreme Court that in "any proceeding for ejectment section 53-A of the Transfer of Property Act would afford a valid defence against the ejectment". Similar view was expressed by this Court in the case of Manzoor Hussain. It was also observed by the erstwhile High Court of West Pakistan (Karachi Bench) 'in Badru Bai F. E. Dinshaw that though section 53-A does not create any title in favour of a transferee, it protects his possession against transferor and the person claiming through him. In Muhammad Azim's case it has been held by the former High Court of Sind and Baluchistan that section 53-A protects a, transferee whether he is plaintiff or defendant in a suit. In view of these authorities, I agree with the learned counsel for the appellant that if the owner of any property agrees to sell the property to a tenant, who is in occupation thereof, but subsequently seeks ejectment of the tenant, the tenant can, in view of the provisions of section 53-A of the Transfer of Property Act successfully resist the ejectment proceedings on the score of the agreement of sale in his favour. As for the contention of the learned counsel for the respondent that the said Act does not apply to the Province of the Punjab and, therefore, the appellant cannot invoke the provisions of sec tion 53-A thereof, it is true that the provisions of the Transfer of Property Act do not, in terms, apply to this Province but its principles are generally observed in this part of the country as well. Malkha Singh v. Mst Shankari and other (A I R 1947 Lah. 1) is an authority in point. Therefore, in view of the principle of section 53-A, the appellant could resist the ejectment proceedings on the basis of the agreement of sale relied upon by him.

10. Now I proceed to consider the contentions of the learned counsel for the respondents that all the conditions for invoking the protection of section 53-A of the Transfer of Property Act had not been satisfied in the instant case. These conditions are four in number, namely :- (i) the execution of a writing incorporating the terms of the contract of sale ; (ii) delivery of possession to-the transferee or the continuation of his possession (iii) doing of soma act by the transferee in furtherance of the contract ; and (iv) the performing of his part of the contract by the transferor or his willingness to do so. As for the first condition, there is the agreement deed Exh. P. 1, executed by the original owner, Muhammad Mukarram in favour of the appellant. The second condition also stands fulfilled in the present case because, undoubtedly, the appellant was in possession of the disputed property at the time of the execution of the agreement deed and he still continues to be in its possession. The third and fourth conditions to have been fulfilled by the appellant inasmuch as he has made part payment of the sale price of Rs. 14,000 by paying Rs. 4000 to the original owner. This is evident from the recitals of the agreement deed. He has also tiled a suit for specific performance of the contract contending that he is willing to ply the balance of the sale price but the transferor is evading execution of sale deed in terms of the agreement. I am, therefore, unable to agree with the learned counsel for the respondents that the appellant had not fulfilled the requirements of section 53-A, of the Transfer of Property Act.

11. What emerges from the foregoing discussion is that in view of the agreement of sale in favour of the appellant, the respondents could not seek his ejectment from the disputed house by treating him as a tenant. In the circumstances, the learned Rent Controller was right in dismissing the respondents' application for eviction of the appellant and the learned Additional District Judge had erred in setting aside his order and directing the appellant to vacate the said house.

12. I, therefore, accept the appeal with costs, set aside the order of ejectment made by the learned Additional District Judge and restore that of the learned Rent Controller whereby he had dismissed the respondents' application for eviction of the appellant. M.Y.M Appeal accepted.