1993 PLP 332 (MLD)

3. In the first round of litigation it appears that the case was remanded by this Court with the direction to the learned Rent Controller to decide the following two questions:‑‑ (1) Who were the transferees of House No.1251, Bengali Mohallah, Lahore Cantt., by the Settlement Department and what were the extent of their mutual/inter se entitlement; (2) The extent of the accommodation in the aforesaid house and whether the portion of the house in possession of the respondent fell within the entitlement of the present appellant.

4. The learned Rent Controller after recording evidence came to the conclusion that the appellant having executed an agreement of sale in favour of the respondent agreeing to sell the premises in dispute to the respondent, therefore, relationship of landlord and tenant did not exist as at present the respondent was in occupation of the disputed premises under the agreement oil, sale and the remedy of the appellant was to seek remedy before the Civil 8 Court. It was otherwise held that 1/4th share of this house was transferred to the appellant and the other entire portion had been transferred to Zahoor‑ud Din.

5. I have heard learned counsel for the parties who have taken me through the evidence produced by the parties before the learned Rent Controller. It is clear from the written statement filed by the respondent that he denied the relationship of landlord acid tenant only on the ground of execution of agreement of sale regarding the premises in dispute by the appellant in his favour. It appears that there is no dispute between the parties about the identity of the property which is being occupied by the respondent, therefore, it can safely be stated that it was this portion which was the 1/4th portion of the house transferred to the appellant about which no dispute can be raised now.

6. According to the evidence of the attorney of the appellant the premises were given on rent to the respondent about twelve years prior to the date when he made statement as a witness on 22‑5‑1984, at the rate of Rs.250 per month. In the cross‑examination a suggestion was put to him that with the execution of agreement of sale the relationship between the parties as landlord and tenant came to an end which he denied from which it appears that the case of the respondent was that though originally he was occupying the property as tenant but the relationship of landlord and tenant ceased to exist due to the C execution of agreement of sale. In the written statement the respondent did not take up the plea that he was in possession of the property since partition. In the cross‑examination the attorney of the appellant was also suggested that the respondent was inducted in the premises as tenant after the execution of agreement of sale which he denied and stated that the respondent was inducted in the premises as tenant prior to the execution of agreement of sale. The attorney categorically stated that he had been receiving rent from the respondent. It is clear from this statement that the case of the respondent was, at though he was occupying the premises as tenant under the appellant but the relationship of landlord and tenant came to an end with the execution of agreement of sale by the appellant in his favour about the premises in dispute. In his own evidence the respondent raised the plea that he was in possession of the premises since partition. Even if that be taken as true, on the transfer of the property to the appellant he by operation of law had, come tenant under the appellant. So seen from whatever angle the respondent could not deny that he was occupying the premises as tenant under the appellant.

8. Now the question arises as to what is the legal effect of execution of agreement of sale by the appellant in favour of, the respondent the execution of which has been admitted and copy of the said agreement has been produced in evidence as Exh.R.W.2/1 which is dated 3‑4‑1982. The decision of this question centres around the terms and conditions of this agreement. I have examined is agreement from which it is evident that there is no covenant that with the execution of this agreement the relationship of landlord and tenant between the parties would come to an end. It has also not been recited in this agreement that the possession of the premises was delivered to the respondent n part performance of this agreement as prospective buyer or that he would, have any right as such, in pursuance of this agreement in the premises. Section 53‑A of the Transfer of Property Act, is attracted only where the possession was delivered under the agreement by the seller and a right was created in favour of the prospective buyer in the property itself in part performance. In this case it has not been proved rather the agreement is silent this, therefore, the learned Rent Controller misread this document while' holding that the respondent was holding the possession of the property under its agreement assuming that the same was delivered to him as part' performance of the same. The attorney of the appellant when suggested that' he respondent ceased to be the tenant with the execution of this agreement of ale which fact was categorically denied by him. It was incumbent upon the respondent to have got a recital added in the agreement if the parties intended that with the execution of the same and till the execution of the sale deed the relationship of landlord and tenant between the parties would me to an end and the respondent would not be liable to pay any alt and he would be holding the possession of the property as prospective buyer without: which no right under section 53‑A of the Transfer of Property had been created.

9. Since the respondent denied unjustifiably the existence of relationship landlord and tenant therefore, it is clear that he did not make payment of rent to the appellant and had become a defaulter as such incurred the penalty forfeiture of his tenancy.

10. This appeal is accepted. Order dated 26‑11‑1991 passed by the learned Addl. Rent Controller, Lahore Cantt is set aside and the ejectment petition is accepted. The order of eviction is passed in favour of the appellant and against the respondent and the respondent is directed to vacate the E premises and hand over its possession to the appellant within three months. There will be no order as to costs. It may be observed that the respondent may enforce rights under the agreement of sale independently if he is so advised. F.R./H‑29/L 0Appeal accepted.