JUDGMENT SYED KAZIM RAZA SHAMSI, J.---This constitutional petition is directed against an order dated 24-2-2009 passed by Khawaja Zafar Iqbal, Addl. District Judge, Lahore, whereby he accepted the appeal and dismissed the ejectment petition.
2. The, facts of the case briefly stated are that Waheed uz Zaman, the petitioner was owner of House No.7 situated at Out Fall Road, Sanat Nagar, Lahore, who filed an ejectment petition against his tenant Hassan Raza on the various grounds. The ejectment petition was contested by the tenant and during the pendency of the ejectment petition the landlord entered into a compromise with his tenant and executed an agreement to sell dated 26-5-2000. It was recorded in the agreement that the rented premises were sold for a consideration of Rs.750,000 to Hassan Raza, who had paid a sum of Rs.200,000 as earnest money. It was also agreed that within 150 days from 26-5-2000 the property would be transferred in the name of the tenant. It is the contention of the petitioner that after the execution of the agreement to sell the tenant Hassan Raza started delaying the registration of the sale-deed in his on name although he was reminded for the performance of his part of the agreement. When the tenant failed to get the sale-deed registered in his favour the landlord constrained to file second ejecsnent petition on the ground of bona Personal need.
3. The tenant Hassan Raza contested the application by taking the stand that by virtue of agreement dated 26-5-2000 he is the owner of the property in dispute, as such the relationship of landlord and tenant did not exist between the parties.
4. The sole issue in respect of the relationship of the parties was framed by the Rent Controller, who after recording the evidence of the parties concluded that the respondent was a tenant in the premises, thus accepted the ejectment petition. The respondent being dissatisfied with the findings of the learned Rent Controller preferred an appeal before the learned First Appellate Court. After appreciating the record the learned Appellate Court concluded that the findings of the Rent.
Controller in respect of existence of relationship of landlord and tenant between the parties were erroneous, as such set aside the same by accepting the appeal and dismissed the ejectment petition.
5. I have considered the submissions made by the learned counsel for the parties and perused the record. Both learned counsel have cited various judgments in support of their contentions. It is noticed from the record that after refusal of the respondent to perform his part of the agreement the petitioner has to file the ejectment petition against him. It is also noticed that the respondent did not try to get the sale-deed executed in his favour nor he instituted any suit for specific performance of the agreement which he filed after three years of the filing of second ejectment petition against him. This fact of the institution of the suit after three years of the filing of the ejectment petition speaks a lot about the malice of the respondent, who in the garb of the agreement to sell wanted to usurp the valuable property of the petitioner. It is also observed that the suit was withdrawn by the respondent on the very next day when his appeal was accepted by the learned First Appellate Court and the ejectment petition was dismissed.
6. The next question for determination, after observing the conduct and behaviour of the respondent, is about the position of the respondent over the disputed property. Admittedly before the execution of the agreement to sell the respondent was a tenant in the property against whom an ejectment petition was filed by the petitioner, which was resulted into compromise and an agreement to sell took birth out of that compromise. Second ejectment petition was filed by the petitioner on 30-6-2001 meaning thereby that the respondent did not honour the agreement during 26-5-2000 to 30-6-2001 thus attempted to prolong his holding over the disputed property. It is settled principle of law that a tenant remains a tenant even if he succeeds in procuring an agreement to sell with his landlord till the time that agreement is resulted into a final document of title. It is also a valid proposition of law A that mere agreement to sell does not create any right or title, thus it cannot be said that after the execution of the agreement to sell by the respondent in favour of the petitioner he (respondent) became the owner of the property in dispute. In the case of "Haji Jumma Khan v. Haji Zarin Khan" (PLD 1999 SC 1101) their Lordships were pleased to hold that till the time the tenant was able to establish his claim for specific performance on the basis of a sale agreement landlord would continue to enjoy the status of being owner or landlord of the premises. The relationship between the parties till such time would be regulated by the terms of earlier tenancy, as such the tenant could not legitimately resist maintainability of ejectment petition pending against him on the ground of sale agreement. In the case of "Iqbal and 6 others v.
Mst. Rabia Bibi and another" (PLD 1991 SC 242) their Lordships were pleased to hold that ejectment application could not be stayed or stalled on the plea that the tenant in possession was holding agreement to sell and pendency of suit for specific performance of agreement would be no ground to avoid eviction of the tenant by the Rent Controller.
7. Learned counsel for the respondent while relying upon the cases of "Messrs Rehman's Cotton Factory v. Messrs Nichimen Co. Ltd." (PLD 1976 SC 781), "Mian Abdul Rashid v. Province of Punjab through District Controller, Okara and another" (PLD 2003 Lahore 389), "Ch. Noor Hussain v. Ch. Allah Bakhsh and others" (1984 SCMR 446) and "Muhammad Islam Khan v. Cantonment Board, Kohat"
(1982 SCMR 1056) contended that the respondent is in possession of the property in part performance of the agreement to sell, as such would be entitled to retain the possession as an owner till the time the agreement becomes executed in its nature. This contention of the learned counsel for the petitioner/respondent has been meted out by the aforementioned two judgments of the Apex Court, as such case law referred to by the learned counsel for the respondent is not directly applicable to the facts of the instant case in stricto senu.
8. Learned First Appellate Court while taking the converse view than the view of the learned Rent Controller did not appreciate this legal position of the case and has just relied upon the term 'possession' B mentioned in the agreement to sell to dismiss the ejectment petition. The Court also could not make distinction between the possession as a tenant and possession of a person as an owner over the property in dispute. The Court should be mindful of the fact that the respondent may become an owner of the property in dispute if he succeeds in getting the document of title executed in his favour, which in the instant case could be a sale-deed. Till the time of execution of sale-deed the status of the respondent would of a tenant in possession of the rented premises.
Respectfully following the ratio of the cases of "Haji Jumma Khan" and "Iqbal" (supra), it is held that the findings of the learned First Appellate Court on the issue is based upon misappreciation of law and non-reading of material facts borne out of the record, as such are liable to be set aside.
9. For the foregoing reasons, this petition is allowed by declaring the order dated 24-2-2009 passed by Khawaja Zafar Iqbal, Addl. District Judge, Lahore as illegal and of no legal consequences and is set aside, accordingly, the order dated 2-3-2006 passed by Ms. Asima Tehseen, learned Rent Controller, Lahore is restored..