' This second appeal, filed under section 15(6) of the Punjab Urban Rent Restriction Ordinance, 1959, calls in question the judgment, dated 27-10-2001, whereby the learned Additional District Judge dismissed the appeal, filed by the appellant, and maintained the ejectment order, dated 3-9-2001 passed by learned Rent Controller through which he accepted the ejectment petition, filed by the respondents and directed the appellant to hand over vacant possession of the property in dispute to the respondents.
2. Brief facts leading to the filing of the present appeal are that the respondents filed an ejectment petition, against the appellant, seeking his eviction from two shops including a Chobara (hereinafter referred to as disputed shops), on the ground of default since February, 2000, before the learned Rent Controller. The appellant resisted the said ejectment petition by filing a written reply, wherein the only defence taken by him Was that no relationship of landlord and tenant exists between the parties, as he has purchased the disputed shops, through oral sale, from Ghulam Hassan and Abdul Razaq sons of Munshi Khan for the last 26/27 years and thus he is owner of the shops in dispute. The learned Rent Controller framed a solitary issue viz. Whether the relationship of landlord and tenant exist between the parties, thereafter recorded oral and documentary evidence of the parties and proceeded to accept the ejectment petition vie order, dated 3-9-2001 and directed the appellant to hand over the possession of the disputed shops to the respondents. Being dissatisfied, the appellant filed first appeal before the Appellate Authority, but without any success, as his appeal was also dismissed by the learned Additional District Judge vide judgment, dated 28-10-2002, hence the present second appeal.
3. The learned counsel for the appellant has contended that the respondents could not prove the existence of the relationship of landlord and tenant and evidence on record amply supports the said assertion. He has further contended that the appellant produced two agreements to sell with regard to the disputed shops and as such the appellant is in possession of the disputed shops in part performance of the said agreements and his possession is protected under section 53-A of the Transfer of Property Act. In the above perspective, he has contended that judgments of both the Courts below are neither in accordance with law nor evidence on record, thus not sustainable.
On the other hand, learned counsel for the respondents has raised a preliminary objection that the appeal was filed without the requisite court-fee, only appending a photocopy of receipt, dated 30- 11-2001 showing the deposit of Rs.3,600 with stamp vendor and as the deposit for the purchase of court-fee was made after the expiry of period of limitation for filing appeal, thus there is no proper and legal appeal pending before this Court. He has contended that the respondents by producing sale-deeds and the rent note coupled with the oral vidence has proved that in fact relationship of landlord and tenant did exist between the parties, therefore, both the Courts below have concurrently held that the relationship of landlord and tenant exist between the parties and the said findings are not liable to be interfered by this Court.
4. Record of the case has been perused and the parties have been heard at length.
5. As regards the preliminary objection raised by learned counsel for the respondents regarding the non-payment of court-fee, I find that pursuant to order, dated 6-3-2002, whereby this Court directed the office to trace out court-fee now the office has placed on record court-fee amounting to Rs.3,600, which was submitted by the appellant in the office on 21-1-2002. It flows therefrom that the requisite court-fee has been paid. Even otherwise according to the principle laid down in Siddique Khan and 2 others v. Abdul Shakur Khan (PLD 1984 SC 289), matter pertaining to payment of court-fee or making up deficiency of court-fee is between the litigant and the exchequer and adverse party cannot use it as a tool to non-suit his rival. Being guided by aforesaid principle laid down by apex Court of the country coupled with the fact that the court-fee has in fact been paid, I am not inclined to non-suit the appellant on this objection. Thus, the objection raised by the learned counsel is hereby repelled.
6. In order to prove this solitary issue, the respondents examined two witnesses namely Mazhar Iqbal and Gulzar Hussain, who appeared as A.W.1 and A.W.2, while respondent No.2 appeared as A.W.3. A.W.1 in his statement produced an agreement regarding tenancy between the parties, dated 6-8-1985, which was admitted in evidence and exhibited as Exh.A/2. It is pertinent to note here that this document was exhibited without having raised any objection to its admissibility on the part of the appellant. The stance of the appellant before the learned Rent Controller was that he is owner of the disputed shops and is not the tenant under the respondents. Admitting this document in evidence without any objection being taken by the appellant proves that in fact he admits execution of the agreement for tenancy. Strangely enough, in the cross-examination this witness was not questioned about the genuineness or execution of the agreement of tenancy, which further proves that the appellant admits the execution of the agreement. He has not even denied his signatures on the said agreement of tenancy and not even single question was asked in the cross-examination nor even any suggestion was put to the effect that the appellant did not execute any agreement of tenancy of/and the signatures on Exhs.A-1 and A-2 are forged and fabricated. In order to prove the ownership, the respondents produced the copies of registered sale-deeds, which were admitted in evidence and exhibited as Exhs.A-4, A-5 and A-6 without raising any objection on the part of. The appellant. After perusing the evidence on record, both oral as well as documentary, I am of the considered view that the respondents have been able to establish that the relationship of landlord and tenant did exist between the parties and both Courts below have rightly appreciated the evidence on record and were justified in law to arrive at a conclusion that in fact the appellant is tenant under the respondents.
7. Another aspect of the case, which is of grave importance is that the appellant in his reply to the ejectment petition assertion that no relationship of landlord and tenant exist between the parties and in support thereof, he has categorically stated in para.1 on merits that 26/27 years before he has orally purchased the shops in. Question from Ghulam Hassan and Abdul Razaq sons of Munshi Khan. The relevant portion of the written reply is reproduced below:-- {{URDU TEXTT}}
8. Upon the examination of the record and after going through the evidence on record produced by the appellant, it appears that the appellant completely somersaulted and instead of asserting or proving alleged oral sale, he took a stance that in fact two agreements to sell (Exhs.RW-1/1 and R.W.2/2) were executed in his favour, he is in possession of the disputed shops per force of those agreements and that he has filed suit for specific performance of these agreements which is statedly pending. The entire evidence produced by the appellant revolves upon these alleged agreements to sell. It is settled law that nobody can be allowed to prove in evidence subsequently which he has not alleged in the pleadings. The position in this case is more worse, inasmuch as the appellant has taken two different stances, as in the written reply he is asserting that he is owner through oral sale whereas in evidence he has tried to prove that he is in possession of the dispute shop on the strength of some agreements to sell. The alleged agreements to sell, on which the appellant is now relying, are, dated 29-10-1978 and 3-3-1982 respectively. However, it has not come on record that whether pursuant to the said agreements to sell any sale-deeds were in fact executed and if not why they were not executed after the lapse of more than 26/27 years. In order to prove the said alleged agreements, although the appellant has produced R.W.2 and R.W.3, but the statements of these witnesses are of no avail to the appellant at this stage when it has been proved that the relationship of landlord and tenant exists between the parties and that the appellant has taken a different stance while producing the evidence on record which is a complete departure from the original stance taken in the written reply. In view of this, the contention of the learned counsel regarding the execution of agreement to sell or about the protection of possession under section 53-A of the Transfer of Property Act is devoid of force, thus repelled.
9. Upon the examination of the record, I find that the appellant has filed a suit claiming to be the owner in possession of the property against the respondents, which is statedly pending. This has also been observed by learned Appellate Court. During the arguments, the learned counsel of the appellant has also submitted that appellant has also filed a suit for spe.Cific performance of the agreement, which is pending. It is settled law that mere agreement to sell does not create any right, title and interest in favour of any person qua the property mentioned therein unless it has been implemented by way of execution of sale-deed. However, as the matter is -still pending before the competent Court in the shape of suit for specific performance filed by the appellant, therefore, I have refrained myself from giving any findings on the said aspect of the case, as these findings may prejudice the cause of any of the, parties at the time of the final decision of the suit. It has been held in Haji Jumma Khan v. Haji Zarin Khan (PLD 1999 SC 1101), that till the time, tenant was able to establish his claim for specific performance on the basis of alleged sale agreement, landlord would continue to enjoy the status of being owner and landlord of the premises and the relationship between the parties till such time would be governed by the terms of the tenancy and tenant could not legitimately resist maintainability of ejectment proceedings pending against him on the ground of sale agreement. It has also been held in Mst. Bor Bibi and others v. Abdul Qadir and others (1996 SCM R 877), that a tenant could not be allowed to retain his possession on the basis of such agreement to sell till the decision of their title by Civil Court of competent jurisdiction.
In view of the law declared, I am of the considered view that the appellant cannot be allowed to retain the possession of the disputed shops on the basis of the alleged agreement to sell, dated 29-10-1978 and 3-3-1982, when both the Courts below concurrently held that the relationship of the landlord and tenant did exist between the parties and had ordered for his eviction.
10. For the examination of the record of the case and both the impugned judgments, I am of the considered view that those are legal, apt to the facts and circumstances of the case, unexceptionable, according to the evidence on record and law on the subject and thus, I have no reasons to set aside the said judgments, moreso when they are concurrent in nature. I have no reasons to disagree with the findings rendered by both the Courts below and those findings are hereby affirmed.
11. The upshot of the above discussion is that present appeal is devoid of any merits, thus, the same is dismissed with no order as to costs.