' Precisely stated the facts of the case are that the respondent instituted the ejectment petition seeking eviction of the appellant, from the questioned shop (bearing 14-LG), on the grounds of default in the payment of rent, failure to enhance the statutory monthly rent and non-payment of service charges. The appellant resisted the ejectment petition, through filing its written reply, inter alia, pleading that relationship of landlord and tenant does not exist between the parties; the ejectment petitioner has no locus standi to file the petition and that he is occupying the shop in question pursuant to the oral agreement to sell, hence his possession is protected under section 53-A of the Transfer of Property Act. Following issues were framed:-- ' Issues:--- (1). Whether there exists relationship of landlord and tenant between the parties? OPA.
(2) Order.
' The respondent/ejectment petitioner appeared as A.W.1, while he produced Tufail Butt, scribe, as A.W.2. Two rent agreements were placed on record as Marks A and B and site plan of the disputed shop was exhibited as Exh.A.1. The appellant appeared as R.W.1 and produced one Mumtaz Ahmad as A.W.2. Learned Rent Controller, after recording the aforesaid evidence, dismissed the ejectment petition, vide order dated 10-3-2004. The respondent assailed the said decision before the appellate authority and the learned Addl. District Judge accepted his appeal, reversed the orders, passed by the learned Rent Controller and respondent's ejectment petition was allowed, vide judgment dated 5-5-2004, hence the present petition.
2. Learned counsel for the appellant, while referring to the statement of the respondent, has submitted that as the respondent admitted the receipt of a sum of Rs.5,00,000, therefore, it is sufficient to show that the appellant is in possession of the premises in question pursuant to the oral agreement to sell dated 15-2-1993 and thus appellant's possession is protected under section 53-A of the Transfer of Property Act. He has added that' the relationship of landlord and tenant does not exist between the parties. He has relied upon Abdul' Hameed Naz and 7 others v. Mst.
Razia Begum Awan and 4 others 1991 SCMR 1376; Rashid Ahmad v. Messrs Friends Match Works PLD 1986 Karachi 258 and Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani PLD 1985 SC 1. Conversely the learned counsel for the respondent, while referring to the available record, has submitted that the appellant has taken contrary pleas before the lower forums and this Court, that no sale agreement was entered into between the parties and that the appellant is occupying the shop in question as a tenant. He has added that even if it be conceded that any agreement to sell was entered between the parties, that will be of no avail to the appellant, as the relationship of landlord and tenant has been established. He has referred to the judgments reported as Mst. Ummatul Waheed and others v. Mst. Nasira Kausar and others 1985 SCMR 214; Allay Yar and others v. Addl. District Judge and others 1984 SCMR 741; Muhammad Idrees v. Addl. District Judge and others 1986 CLC 590 and Ch. Muhammad Siddique v. Addl. District Judge, Lahore 1993 CLC 470.
3. I have heard the learned counsel for the parties at length and examined the summoned record.
The only defence pleaded by the appellant, in his written statement, is that he is occupying the basement in his own rights pursuant to entering into the oral agreement to sell, hence his possession is protected under section 53-A of Transfer of Property Act. The learned counsel, upon a query raised by this Court, has submitted that the suit for specific performance, filed by the appellant, during the pendency of the appeal before this Court, is pending before the Civil Courts.
As noted above, the appellant is pleading the oral agreement to sell, reportedly, entered between the parties as far as in the year 1993, for the performance of which, the suit has been filed in the year 2004. There cannot be any cavil to the proposition that mere agreement to sell does not create any right title or A interest qua the property in favour of a person, in whose favour the said document is executed, except creation of right favouring such person to file a suit for specific performance of the said agreement. In a case reported as Wajid Ali Khan. v. Sheikh Murtaza Ali and 2 others 2003 SCMR 1416, the apex Court of the Country while dealing with the question regarding agreement to sell, has held as under:-- "It is well-settled principle of law that mere agreement to sell does not confer any right of ownership upon any person, therefore, the petitioner cannot claim the protection under section 53- A of the Transfer of Property Act, 1982---"
4. It is settled law by now that the agreement to sell cannot be pleaded as defence in the ejectment petition and unless suit for specific performance is decreed, no title is created in favour of that person, qua the rented property. 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 regulated by the terms of tenancy and that the tenant could not legitimately resist the maintainability of the ejectment proceedings pending against him on the ground of sale agreement. It has been held in Mst. Bor Bibi and others v. Abdul Qadir and others 1996 SCMR 8`"/7 that a tenant could not be allowed to retain his possession on the basis of agreement to sell till the decision of his title by Civil Courts of competent jurisdiction. The view taken by the Honourable. Supreme Court of Pakistan, in a case reported as Iqbal and 6 others v. Mst. Rabia Bibi and another PLD 1991 SC 242 , is that pendency of a suit for specific performance of agreement would be no ground.To avoid eviction of tenants by the Rent Controller and that the tenants could prosecute their claim at the cost of themselves by vacating the premises, though they would be entitled to an easy and free entry as soon as they finally succeeded in establishing their title against the landlord. In another case reported as Mst. Azeem un Nisa Begum v. Ali Muhammad PLD 1990 SC 382 it has been ' held that the relationship of landlord and tenant continued to exist between the parties, even after the execution of agreement to sale and as the respondents failed to tender rent to the vendor, the eviction order, passed against him by the Rent Controller was fully justified.
In view of the law declared, to my mind, the appellant cannot be allowed to retain possession of the disputed shop on the pleas of oral agreement to sell and pendency of suit for specific performance. The contention raised by the learned counsel is ill-founded and misconceived, thus repelled.
5. Upon the examination of the evidence of the parties, I am of the view that the respondent has been able to establish that the relationship of landlord and tenant exists between the parties. The learned Additional District Judge has adverted to every aspect of the case and I am not persuaded to take a contrary view to that of the learned Additional District Judge. As a matter of fact, the legal errors committed by the learned Rent Controller have been rectified by learned Appellate Authority through passing reasoned judgment. The conclusions arrived at by the learned Additional District Judge are not only in accordance with the record of the case but the same are also in consonance with the law on the subject.
6. As regards the judgments relied upon by the learned counsel for the appellant, suffice it to say that there cannot possibly be any cavil to the principles of law laid down in the said cases, however, under the present set of circumstances and in view of the enormous case-law noted above, said judgments are of no avail to the appellant.
7. In the above perspective, I have examined the impugned judgment and find that the learned Additional District Judge did not commit any illegality and it does not suffer from any legal defect/error. I see no reasons to reverse the said judgment, thus the same is hereby maintained.
8. Upshot of the above discussion is that the present appeal stands dismissed with no order as to costs. However, the appellant is allowed two months time to vacate the shop in question.