' This Hnd Appeal arises out of judgment dated 17-2-1976 passed by the learned VIth Additional District Judge, Karachi whereby he maintained the order dated 9-8-1975 of the learned IVth Senior Civil Judge and Rent Controller, Karachi and dismissed the appeal.
2. The brief facts of the case are that the respondent is the owner of House No, 1863 Block II, Azizabad, Federal B Area, Karachi. She filed an application on 31-5-1971 against the appellant on the ground of default in payment of rent to her since 8-5-1968. The respondent took a plea that he was not a tenant of the respondent inasmuch as the respondent had entered into a contract of sale of the said house for a consideration of Rs, 21,000 through her husband Muhammad Shafi. It was further contended by the appellant in his written statement that the sale could not be concluded as she had been avoiding the same.
3. As the relationship of landlord/tenant was denied the learned Rent Controller framed a preliminary issue to this effect which was decided by him in favour of respondent and directed the appellant to put the respondent in possession of the house in question. The appellant filed an appeal against the said order of ejectment which too met with the same fate.
4. The contention of the learned counsel for the appellant is that on entering into a contract for sale between the parties his relationship as a tenant of the respondent ceased and a new right has emerged out of the said contract for sale and he continues in possession of the property in question in part performance of the said contract. He further alleged that he, having performed other acts in furtherance of the contract by making further payment to the respondent in addition to the payment of Rs, 4,500 as earnest money, is protected from dispossession from the said property and the respondent is debarred from enforcing against him any right in respect of the property of which he continues in possession as provided under section 53-A of the Transfer of Property Act, 1882.
5. In order to appreciate the application of section 53-A of the Transfer of Property Act, 1882 to the facts of the present case it is expedient to reproduce the said section : "53-A. Part performance.-Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has, performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract : ' Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
' The above provision of law was originally based on the principle of equity which found its way into the statute so as to apply to a limited extent in cases of sale of immovable property. The prerequisites for application of section 53-A may be enumerated as- "(i) that there should be an agreement in writing signed by the transferor to transfer for consideration an immovable property ;
(ii) the terms necessary to constitute transfer must be ascertainable with reasonable certainty ;
(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 ;
(iv) and the transferee has done some act in furtherance of the said contract and he has, either performed or is willing to perform his part of the contract ;
(v) consequent to the above, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property other than a right expressly provided by the terms of the contract itself."
6. In the present case it is necessary to reproduce the agreement which is as under :- {{URDU TEXT}}
7. Applying the above conditions to the facts of the present case it stands proved by Agreement Exh. 4 that the respondent contracted to transfer for consideration the house in question on the terms stated therein. As to the performance of some act in furtherance of the said contract for sale of the property in question the appellant made further payments towards the sale consideration, in addition to the initial payment of Rs, 4,500, in the sum of Rs, 1,000, Rs, 600 and Rs, 1,400 on 5-6-1968, 17-1-1969 and 19-5-1969 towards the said sale. It is also proved from the evidence that the appellant at no time wanted to back out of the said contract and he has been willing to perform his part of the contract which could not, however, be finalised for one reason or the other particularly for non-availability of the permission to transfer the said house from the House Building Finance Corporation with whom the property was mortgaged by the respondent and which permission could only be obtained by the respondent. Having found these conditions to have been fulfilled in the case by the appellant the only question which is relevant for consideration is whether the appellant has taken possession of the house in question and has continued in possession in part performance of the contract of sale or not ? It is an admitted position that the appellant was a tenant of the respondent at the time of entering into the said contract of sale of the house but it cannot be said, with certainty, that he continued to be in possession in part performance of the said contract of sale. There is nothing to indicate in the said contract that his relationship as tenant ceased and that he was absolved from the liability of making any further payment of rent as on and from 3-5-1968 by virtue of the said contract itself. The legal question which, in the circumstances, boils down to this is whether the liability of a tenant who enters into a contract for sale of the property in his tenancy ceases ipso facto without any stipulation in the contract to that effect. Both the learned Courts below have answered the question in the negative and have, therefore, proceeded with an order of ejectment of the appellant for non-payment of rent for the period subsequent to the said contract for sale, holding the appellant to be a wilful defaulter.
Challenging the orders of the Courts below the learned counsel for the appellant has placed his reliance on the following authorities, namely :-
(i) Hassan Abbas v. Shahid Bashir etc. 1980 CLC 1442.
(ii) Manzoor Hussain v. Nawazish Nazir Hussain and another PLD 1976 Lah.
637.
(iii) Kalimuddin Ansari v. Director, Excise & Taxation, Karachi PLD 1971 SC 114.
(iv) Bachu Bai F. E. Dinshaw v. Commissioner of Income-tax PLD.1967 Kar.
372.
' The last two authorities cited by the learned counsel for the appellant are not relevant to the facts of this case. The Supreme Court Authority related to the validity of the constitution of the K. M. C.
And its right to recover taxes under the West Pakistan Urban Immovable Property Tax Act, 1958 from the persons who had constructed houses in the PECHS and plot-holders of the housing union. Of course the question of the applicability of section 53-A of the Transfer of Property Act was considered in this case but that was in a different context. The other case reported in PLD 1967 Kar.
372 has also no relevance to the facts of the present case inasmuch as the main question involved in the case was the assessm ent of the income-tax under section 9 of the Income-tax Act, 1922 and to find out who was the owner of the property because it was the owner alone who could be assessed to income-tax and not the transferee in possession under section 53-A, of the T. P. Act.
The first two decisions cited by the learned counsel for the appellant, however, have got some relevance. In the case of Manzoor Hussain v. Nawazish Nazir Hussain and another, respondent/ landlord executed an agreement to sell the property in dispute in favour of the appellant/tenant agreeing to sell the property for Rs, 4,500 and received, Rs 3,000 in advance. An ejectment application was filed for the default in payment of rent for a period prior to the execution of the said agreement. The learned Single Judge held as under :- "It is not necessary for the application of section 53-A that the default complained of should be for a period after the execution of agreement to sell. It applies even if the default is said to be for a period prior to the execution of such an agreement. If in reality the agreement to sell has been executed and respondent No. 1 has received Rs, 3,000, the appellant cannot be dispossessed of the property till the specific performance of the contract, or the return of the money irrespective of the fact that the default was committed before the execution of the agreement."
' It appears from the facts of the above case that there was some implied agreement not to receive the rent from the tenant subsequent to the execution of the agreement for sale which is proved by the very fact that the ejectment was sought for the arrears of rent prior to execution of the said agreement. It is also significant to note that in the present case though almost 12 years have passed none of the parties have filed any suit for specific performance of the contract. The other case, Hassan Abbas v. Shahid Bashir cited by the learned counsel for the appellant is also distinguishable inasmuch as while executing the agreement-deed the original owner had absolved the tenant of the responsibility to pay rent of the premises which he had agreed to sell to him. With the result that the appellant in that case with the execution of the agreement deed ceased to be a tenant under the original owner.
8. On the other hand the learned counsel for the respondent relied on a case reported in Chipper Khan and another v. Chief Land Commissioner, West Pakistan Lahore and 3 others (1), wherein it was held that the possession not taken in pursuance of the contract but as of lessee was a case of holding-over. In this case the agreement itself stipulated that the possession of the premises will be handed over to the transferee at the time of the registration of the sale-deed. Since the agreement in the present case is silent on this point and makes no such stipulation the facts of the case cited cannot be made applicable in this case. In the other case cited by the learned counsel for the respondent, Jan Muhammad v. Ghulam Ghous (2), the admitted position was that the respondent entered into an agreement to sell the premises in favour of the petitioner. The agreement was placed on record. The respondent declined to make payment of the rent taking shelter behind the said agreement which contained no stipulation exempting the petitioner payment of rent till the completion of the sale. It was held by the Supreme Court that "agreement of sale, 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 put forth as a defence or a step towards part performance when admittedly the petitioner "had never paid the consideration". The legal position which emerges out of the consideration of the decisions cited at the bar is that the possession is to be taken or continued by the transferee under section 53-A of the Transfer of Property Act must be in part performance of the contract. If the transferee was already in possession as a tenant and continued in possession be will deemed to be as holding-over. If there is no stipulation in the contract about the continuation or cessation of the tenancy prior to the execution of the contract for sale of the said property he will still be deemed to be a tenant holding over. This will be more so if a stipulation is contained in the agreement that the possession of the property agreed to be sold award under the contract will be handed over to the transferee at the time of registration of the sale deed. Consequently the relationship of landlord and tenant does not come to an end and the liability to pay the rent {{FOOT NOTE}}
(1) PLD 1976 Kar. 747 (3) 1976 SCM R 141 {{FOOT NOTE}} ' not cease ipso facto on execution of a contract for sale of the property of which the transferee happens to be a tenant in respect of the said property at the time of the execution of the contract for sale unless the agreement itself stipulates that a new relationship of transferor and transferee with the passing of possession in part performance of the contract has been created. The upshot of the discussion, therefore, is that the being no such stipulation in the agreement the relationship of tenant and landlord continued and so there was a liability of the appellant to pay the rent to the respondent under the law which continued uninterrupted even in the existence of the contract for sale.
9. The learned counsel for the appellant, however, during the course of hearing, conceded to this position that the relationship of landlord and tenant might be existing and so the liability to pay the rent but contended that he cannot be ejected from the premises by virtue of section 53-A of the Transfer of Property Act because of the contract of sale coupled with his facts of payment in furtherance of the said contract so long as the contract is not specifically performed or the sale consideration paid by him to the respondent is not returned. This contention appears to be somewhat misconceived. Once the relationship of landlord and tenant is held to be existing the liability to pay the rent remains in vogue. If the liability to pay the rent under the law is not discharged it will entail its consequence and the consequence is ejectment for failure to pay the rent. The West Pakistan Rent Restriction Ordinance being a special law the provisions of section 53- A B of the Transfer of Property Act will not be a bar to the ejectment of a tenant who wilfully defaults in making payment of rent to his landlord in spite of there being an agreement for sale of the property in his favour and doing some act in furtherance thereof unless it is shown that the tenant has been continuing in possession in part performance of the contract which in the present case is not so.
10. 1 will, therefore, hold that the provisions of section 53-A of the Transfer of Property Act, are not applicable to the facts of the present case inasmuch as the possession of the premises was not taken or continued in part performance of the contract.
11. In result, the appeal is dismissed but in the circumstances of the case there will be no order as to costs.