P L D 1986 Karachi 74 (PLP)

On the North by : E/16. On the South by : Other half of the portion of Plot No. E/17, Block `F', North Nizamabad. On the East by : E/24, On the West by : 50 ft. wide road. (2) That the sale will be free from encumbrances. (3) The price of the said one unit will be Rs. 3,75,000 (Rupees three Lacs and Seventy‑five Thousand only) of which Rs. 85,000 (Rupees Eighty‑five Thousand only) has been paid by way of Earnest Money to the vendor the receipt of which sum the vendor hereby acknowledges) and the balance shall to paid in the manner stated here under : (a) Rs. 1,00,000 (Rupees one Lac only) on or before 28th day of February, 1979. (b) Balance of Rs. 1,90,000 (Rupees One Lac Ninety Thousand only) at the time of Registration of the sale‑deed or before that as mutually agreed by the parties heretofore. (4) The property is believed and‑shall be taken to be correctly described and is sold subject to all outgoings easements, restrictions and rights affecting the same and if any error, misstatement or omission shall be discovered the same shall not annul the sale nor shall any compensa tion be allowed in respect thereof. (5) That the vendor undertakes to get the plot bifurcated by the K.D.A. as per rules to get the separate Electric meter from the K. E. S. C. and get separate water connection and sewerage from the K.M.C. for this portion of the house which is subject‑matter of the sale and the purchaser agrees to reimburse to the vendor the fees and the Govern ment charges which shall be payable to the K.D.A., K.E.S.C.; and K.M.C., in this regard. (6) That the vendor undertakes to complete all the necessary formalities as required in para. 5. above as soon as possible and the purchaser hereby undertakes that within 90 days of the completion of the for malities he shall complete the execution of the sale‑deed and pay the balance of the price. (7) That it is clearly agreed that the specific performance on the part of the vendor is the essence of this agreement. (8) That all the expenses for preparation of the sale‑deed and the cost of the same and registration charges shall be borne by the pur chaser."

12. A perusal of the above terms shows that it does not determine the relationship of landlord and tenant between the parties for neither it says that the respondent shall not pay the rent from the date of entering into the agreement nor does it expressly or impliedly provide that the possession of the premises from the date of the agreement shall be considered to be possession in part performance of the contract.

13. Mr Zia Karim learned counsel for the respondent, however, relied on the following recital "Whereas the vendor owns a house consisting of two portions standing on Plot No. E/17, on or about 1,500 sq. yds., and he is absolute owner thereof without any let or hindrance and whereas the pur chaser is desirous of purchasing one unit of the said house which is already in occupation of the Vendee, the parties hereto mutually agree as under."

14. In the recital reproduced above, he has pointed out that it is stated that the respondent is already in occupation of the premises. But the state ment relied upon in the recital neither expressly states that the occupation of the house of the respondent henceforth will be not as tenant but as vendee nor can it be held to be so impliedly in view of the terms agreed upon.

15. I am, therefore, of the view that the appellant continues to be the tenant unless and until the relationship is determined by agreement, or by p decree of the Court, or by operation of the law. Learned counsel for the appellant relied in respect of his contention on two decisions namely Kalimuddin Ansari v. Director Excise and Taxation, Karachi and another (P L D 1971 S C 114) and Bachu Bai F. E. Dinshaw v. Commissioner of Income‑tax. In the first named case the doctrine of the part performance of the contract was con sidered and on the facts of that case, it was held that the doctrine would afford a valid defence against ejectment in ejectment proceedings. I quote the relevant observations hereinbelow : In any proceeding for ejectment section 53‑A of the Transfer of Property Act would afford a valid defence against the ejectment. The agree ments clearly show that the Government has intended to divest itself and to vest the lands in the sub‑licensees, but the latter have appa rently mala fide omitted to execute the lease as they were required to do under the terms of the agreement."

15. It was found as a fact that under the agreement in that case, the Government had intended to divest itself and to sell the land to the sub licencee but no such intention could be gathered from the terms of the agreement in the present case. Therefore, this case has no application to the facts of the present case.

16. It may, however, be mentioned there cannot be any cavil with the above interpretation of section 53‑A (ibid) by the learned Judges. However, the question is whether this doctrine is applicable to the facts of the present case. In order to apply the provision of section 53‑A of the Act, the transferee has to prove that he has in part performance of the contract taken possession of the property agreed to be transferred by the transferor or any E part thereof or the transferee being already in possession continues to be in possession in part performance of the contract. I may quote the relevant provision of section 53‑A (ibid) "(iii) The transferee has, in part performance of the contract, taken possession of the property agreed to be transferred by the transferor or any part thereof or the transferee, being already in possession continues in possession in part performance of the contract ;" 17, This is one of the essential conditions for applications of the doctrine of part performance as contained in section 53‑A of the Transfer of Property Act, and as stated above it is not possible to hold that the respon dents had taken possession of the property agreed to be transferred by the appellant in part performance of the contract as he was already in possession thereof as tenant. Now, the agreement produced in this case, also does not F show, as stated earlier that the respondent continues to be in possession in part performance of the contract for no such intention is expressed in the agreement or can be inferred from the terms of the contract. Nor does the agreement provide that from the date of the agreement the respondent shall cease to pay the rent. It will be of advantage, if I here refer the decision of the Supreme Court in Haji Jan Muhammad v. Ghulam Ghous and 2 others (1976SCMR 141) to which reference was made by Mr. M. M. Mahmoodi learned counsel for the appellant, wherein a similar contention was considered and replied. It may be pointed out that the case of Kaleemuddin Ansari which has been relied by the learned counsel for the respondents was cited before the Supreme Court in this case and it was held it had no relevancy and I quote :‑ "Lastly, learned counsel tried to challenge the finding of the High Court on the non‑applicability of section 53‑A of the Transfer of Property Act which embodies the principle of part performance. In support of his plea of part performance, learned counsel raised a novel argument that his clients continued occupation of the premises coupled with the admitted non‑payment of rent, which constituted the ground of petitioner's ejectment, were the two overt acts on his part towards part performance of the contract. As observed earlier, agreement of sale, Exh. R/1 which formed the sheet‑anchor of the petitioner's case did no exempt him from payment of rent and there fore, his continued occupation of the premises in violation of the law could hardly be put forth as a defence or a step towards part performance when admittedly the petitioner had never paid the consideration. The authority relied upon in this behalf by the learned counsel namely, Kalimuddin Ansari v. Director Excise and Taxation P L D 1971 S C 114 has, therefore, no relevancy as it proceeds on entirely different and distinguishable facts."

18. I may also here refer to Bapuji and others v. Kukaji and others (AIR1954MB128) wherein requirement for applicability of section 53‑A (ibid) in similar situa tion has been stated and I quote :‑ "Section 53‑A in my opinion lays down that the transferee must show that in part performance of the contract some overt or rather express act has been done. When the usufructuary mortgagees were already in possession of the house, they are bound to show two things in such matters ; first that some overt or rather express act had been done in furtherance of the sale, and secondly, that the vendee for considera tion has notice of the contract or of the part performance thereof. The defendants ailed to establish both these things "

19. I, therefore, hold that by entering into the agreement of sale, the respondent did not acquire any title to the property nor does the doctrine of part performance as contained in section 53‑A of the Transfer of Property G Act apply to the facts and circumstances of this case.

20. Accordingly, I allow the appeal and remand the case to decide the same on merits according to law.

21. Under these circumstances of the case, I leave the parties to bear their own costs. A. A. Appeal allowed.