2009 PLP 394 (YLR)

MRS. YASMIN ABBASEY, J.--Facts leading to this petition are that as per respondent No.1/landlord, he had rented out a flat bearing No.3 on Plot No.61/B, Ishaqabad, Liaquatabad, Karachi to the petitioner/tenant at the rate of Rs.534 per month. It is stated that the petitioner failed to pay rent from September 2000 and had also opened a window in a wall facing to Building No.62/B without the permission of the respondent No.1 as such had violated the terms of the agreement. With these two grounds Rent Application No.201/2003 was filed by respondent No.1, it was dismissed as respondent No.1 failed to establish relationship of landlord and tenant in between him and petitioner. In FRA No.03/2005 findings of the Rent Controller were reversed and after observing that there exists relationship of landlord and tenant in between the parties and that the petitioner has committed default in payment of rent, appeal was allowed and the petitioner was directed to handover vacant possession of the premises within three months from the date of impugned judgment. Being aggrieved with the said decision this constitutional petition has been preferred. It is argued by learned counsel for the petitioner that he is in occupation of the premises in his own rights as its purchasers by virtue of an oral agreement settled in between the parties. Sale consideration was fixed at Rs.3,50,000 to be paid by the petitioner to respondent No.1. He further contended that in terms of that oral agreement purchase amount was paid to the respondent No.1 from time to time in part payment which can be borne out from photocopies of receipts placed by him. Confronting to the arguments advanced by learned counsel for respondent No.1 that these receipts pertain to the Pugri amount, it is argued by learned counsel for the petitioner that if these receipts would have been towards the payment of Pugri amount as claimed by the respondent No.1 then the formulation of the same would had been totally different to it. Whereas contents of these receipts refuted the same. Even if it may be so as stated by learned counsel for petitioner that an oral agreement of sale is accepted. Section 54 of the Transfer of Property Act makes it mandatory to have a registered document if the value of immoveable property is one hundred rupees or upwards. Receipts as produced are also not admissible in evidence for want of stamp duty as required under Stamp Act and will be deemed to be non-existence. Refuting the execution of rent agreement dated 1-12-1996, pleaded in Para.2 of rent application No.201/2003, learned counsel for the petitioner has argued that said agreement in fact is not a rent agreement but are instructions to the parties of agreement but these arguments advanced by learned counsel for the petitioner does not appeal to reason as the very preamble of this agreement is evident of fact that petitioner had taken flat bearing No.3 situated on Plot No.61/B, Ishaqabad, Liaquatabad, Karachi on rent and had abide herself with the terms and conditions as enumerated therein, but at the same time the receipts as placed on record on 21-1-1995, 28-2-1995, 12-6-1995, 16-6-1995, 21-6-1995, 20-9-1995 and 10-12-1995 reflects otherwise and to some extent supports the case of petitioner of negotiations between the parties above the level of tenancy, which too has been impliedly admitted by respondent No.1 in his cross-examination, which reads as under:

"I am ready to execute the sale-deed in favour of the opponent if she fulfils the obligation mentioned in Exh.A/19, and certainly I will withdraw my case." Exh.A/19 as referred in the statement of respondent No.1 speaks about the transfer of property on ownership basis after payment of differential amount in between the Pugri amount and the sale consideration. Although in spite of the claim of petitioner to be in occupation of premises as owner by virtue of receipts referred above, it is also an admitted fact that till now after expiry of about 11 years neither sale-deed has been executed nor any suit for specific performance for enforcement of verbal agreement has been filed by the petitioner. To resolve the issue involved, because of non-existence of any proper title documents and in view of the documents placed on record, statement on the part of the petitioner is ambiguous. It will be proper for the parties to approach to the civil Court to get their title clear. In view of foregoing reasons, the impugned judgment is hereby suspended till determination of title of property in question. S.A.K./B-47/K Order accordingly.