1986 PLP 576 (CLC)

Mr. Azizul Hassan, the learned counsel for the appellant ha contended that after the agreement to sell, the relationship of landlady and tenant ceased to exist between the parties, and therefore, the Controller had no jurisdiction and further that the finding of the learner Controller on preliminary issue is contrary to law. The entire argument of the learned counsel is based on the agreement to sell. The admitted position is that this agreement was entered into between the parties, under which the respondent had agreed to sell the disputed flat to the appellant. The main defence of the appellant is that in part performance of this agreement he was put in possession of the disputed flat, and, therefore, the relationship of landlady and tenant does not exist. The learned counsel has referred to Kalimuddin Ansari v. Director Excise and Taxation Officer, Karachi, P L D 1971 S C 114, where it was observed as follows:‑

"In any proceeding for ejectment section 53‑A of the Transfer of Property Act would afford a valid defence against the ejectment. " The learned counsel has also referred to Hassan Abbas v. Shahid Bashir and 5 others, 1980 C L C 1442. In this case, the respondent had purchased the property from its owner and served a notice under section 13‑A of the West Pakistan Urban Rent Restriction Ordinance, and also filed application for ejectment. The appellant resisted the application and denied the relationship of landlord and tenant on the ground that before the property was purchased by the respondent the owner under an agreement had agreed to sell the same property to him, and he has already paid Rs.4,000 in part payment of sale price. It was observed that if the owner of any property agrees to sell the property to a tenant who is in occupation thereof, and subsequently seeks ejectment of tenant, the tenant can in view of the provision of section 53‑A of the Transfer of Property Act, successfully resist the ejectment proceedings on the basis of the agreement of sale in his favour. On the other hand Mr. Kunwar Mukhtar Ahmed, the learned counsel for the respondent has contended that the appellant was inducted as tenant and as possession has not been given to him under the agreement to hold as an owner, he continues to be a tenant. Before considering the effect of section 53‑A it seems proper to ascertain the protection it afford to a transferee. Where the transferor enters into a contract to sell the immovable property and the deed is not registered, he will be debarred from enforcing any other right in respect of the property except the right expressly conferred by the contract, provided the transferee has taken or continues to be in possession under written contract, and has performed his part of the contract or is ready and willing to perform it. In this regard reference can be made to Mst. Ghulam Sakina v. Umar Bakhsh and another PLD 1964 S C 456 where the following observation was made:‑

"Section 49 of the Registration Act, no doubt, provides that if a document, which is compulsorily registerable, is not registered, then such a document does not affect any rights in the property dealt with under such a document. But section 53‑A of the transfer of Property Act makes an exception to this and provides that where a person obtains possession of or continues to remain in possession of a property under a document in writing which, though compulsorily registerable, has not been registered, then the person transferring the property, nor any one claiming under him shall be entitled to enforce against the transferee or any person claiming under him any right in respect of that property.? In the present case, Umar Bakhsh was admittedly in possession of the house, and, therefore, even if the deed of compromise was not registered, the appellant could not enforce her right in the said property against Umar Bakhsh who continued to remain in possession under the terms of the compromise." Similar question was considered by the Supreme Court in Hap Jan Muhammad v. Ghulam Ghous and 2 others 1976 S C M R 141 in which Kalimuddin Ansari's case was also noticed and it was observed as follows:‑

"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 client continued occupation of the premises coupled with the admitted non‑payment of rent which constituted the ground of petitioners 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 not exempt him from payment of rent and, therefore, his continued occupation of the premises in violation of the law could hardly be putforth 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 (2) has, therefore, no relevancy as it proceeds on entirely different and distinguishable facts." The learned counsel for the appellant referred to Rehmat Ali v. Abdul Aziz 1981 C L C 1117 where it was observed:‑

"The protection under section 53‑A of the Transfer of Property Act is available to a tenant if he proves that such an agreement was executed and that he had paid a considerable amount towards the sale price and that there is a stipulation in the agreement of the exemption of the payment of rent." The principle laid down in these judgments is that where a tenant in occupation of the premises enters into an agreement to purchase the same and continues to occupy it under such agreement, has 'paid the entire or major part of consideration, has performed or is ready and willing to perform his part of the agreement, and in terms of contract is exempted from paying the rent, his liability to pay the rent shall cease. Therefore, in such cases, it should be proved that under the agreement for sale, the tenant is not required to pay the rent which will indicate that the relationship of landlord and tenant has ceased to exist. Such provision in the agreement may be direct or may be expressed in such manner that it can be implied that the tenant is not required to pay the rent. Such questions are frequently arising where a tenant takes the plea that he has purchased the disputed premises. In such cases, the Controller should examine the agreement to sell. Oral agreements if denied by the landlord can not be accepted. Unregistered written agreement may attract section 53‑A. Before applying section 53‑A to a case the Controller should first prima facie ascertain the genuineness of the agreement to sell. He should inter alia ascertain whether the tenant is continuing in possession under the agreement of tenancy, or has been put in possession under the agreement to sell, and whether under the agreement to sell the tenant has been exempted from payment' of rent if the finding of the Controller is that under the agreement to sell exemption from payment of rent has been granted, the protection afforded under section 53‑A can be granted. Another question which should not be ignored is whether the tenant is ready and willing to perform his part of the agreement. Applying these principles to the present case, it may be noticed that the agreement to sell contains amongst others the following two clauses: ‑

"Clause (7) That the vendor has given possession of the flat on the date of this agreement on purely care‑taker basis; (10) That, in case purchaser fails to produce to get sale‑deed duly executed and registered by the end of April, 1978 the earnest money already paid by the purchaser will be forfeited and the purchaser shall vacate and hand over peaceful possession of the said flat to the vendor on the First day of May, 1978." From clause 7 it seems clear that in terms of agreement the respondents has delivered possession to the appellant not as a tenant, but as a care‑taker. It, therefore, seems clear that the appellant was not allowed to continue with his possession as a tenant under the tenancy agreement, By this agreement to sell possession was delivered on 1‑2‑1978 which in law was a completely different possession from the possession given to the appellant under the agreement of tenancy. Now the possession has been given as a care‑taker and not as a tenant. From these clauses it is obvious that the parties have said go‑bye to the tenancy agreement, have entered into a fresh agreement and possession was delivered to the appellant under the agreement to sell. It can therefore, be logically concluded that the appellant was not required to pay the rent to the respondent, otherwise, the possession would not have been delivered on 1‑2‑1978 in a different capacity. from clause 10 it is clear that the capacity of the appellant was of a care‑taker and not a tenant, otherwise, in case of non‑registration of the agreement, the appellant could not have been asked to vacate the premises. Mr. Kunwar Mukhtar Ahmed, the learned counsel for the respondent contended that the word 'possession' in section 53‑A means that it is exclusively given to the transferee in his own right and all external interference by any person are completely excluded. In view' of this interpretation of the word 'possession', the learned counsel contended that no such possession was delivered to the appellant and he continued to be a tenant. I am afraid this interpretation cannot be placed in the present circumstances of the case. As observed earlier on 1‑2‑1978 the appellant was put in possession independent of his possession obtained earlier as a tenant. The possession now is in pursuance of the agreement to sell, and, therefore, the relationship of landlord and tenant ceased to exist, the moment the appellant was inducted in a different capacity. The learned counsel for the respondent has contended that as the agreement to sell has not been registered and materialised the original relationship of landlord and tenant has revived. There is not such condition in the agreement that on failure to register the sale‑deed, the appellant shall be treated as a tenant. Nor the learned counsel has been able to produce any provision of law or authority under which the appellant could be treated as a tenant. Under the agreement to sell in such eventuality the appellant was required to vacate the premises. The learned counsel referred to Chappar Khan v. Land Commissioner West Pakistan Karachi P L D 1976 Kar. 747, but the observations made in that case are not applicable to the present one, and are completely distinguishable. In that case the Court came to the conclusion that the possession had not been taken in pursuance of the contract and it had continued with the purchaser as lessee. It was, therefore, held that it would be a case of holding over. In that case the agreement also stipulated that the possession would be handed over at the time of registration of sale‑deed. In view of this discussion, I find that the relationship of landlady and tenant did not exist between the parties, and the Controller had no jurisdiction to eject the appellant. The respondent will, however, have her remedy in law for obtaining the possession of the premises. The impugned order of ejectment passed by the learned Controller is set aside. The appeal is allowed. H . B . T?????????????????????????????????????????????????????????? Appeal allowed