' IBAD-UR-REHMAN LODHI, J.---The appeal is still at pre-admission stage but on account of long pendency as the same has been filed in the year 2009, with the concurrence of learned counsel for the parties, this appeal is being heard as admitted case today.
2. The ejectment petition filed by the petitioner/appellant on the grounds of default in payment of rent and personal bona fide need was firstly dismissed by the Rent Controller, Lahore on 22-4-2009 and appeal filed against said dismissal also met the same fate when the same was dismissed on 27-8-2009.
3. The respondent resisted the ejectment on the ground that he on 15-7-2003, when he was already in possession of premises in question in his capacity of a tenant, entered into an agreement to sell with regard to the same property and subsequent thereto, he ceased to be a tenant and has been enjoying the possession of the premises as owner of the property.
4. There was another short limb of litigation in between the parties when the respondent herein filed a suit seeking injunction against his apprehended forcible eviction from the suit premises and the learned Civil Judge disposed of such suit on 11-5-2006 where according to the order passed by the learned Civil Judge, the appellant-landlord made a statement to the effect that present respondent is occupying the premises as an illegal encroacher. The order passed by the learned Civil Judge on 11-5-2006 is available in the present proceedings as Exh.R.2. Treating such stance of appellant as negation of the existence of relationship of landlord and, tenant in between the parties, the courts below have non-suited the appellant on the ground that when, as per his own showing, he has treated the respondent as an illegal occupant how come at the same time he can be treated as a tenant.
5. I have heard the learned counsel for the parties and examined the record with their assistance.
6. Exh.R.2 is the basis for dismissal of the ejectment petition. I have seen the order, Exh. R.2. In the proceedings ' carried out by the learned Civil Judge on 11-5-2006, no separate statement either of the present appellant, who was defendant No,4 in the suit for injunction nor his learned counsel was recorded by the learned Judge seized of the matter and it is only mentioned in his order of the said date that learned counsel for defendant No,4 maintained that plaintiff of the suit viz. Respondent herein was in illegal possession of the suit property.
7. The initial induction in the property since 21-4-1996 of the respondent as a tenant is not denied. If in the year, 2006 the tenant was termed as an illegal occupant the meaning cannot be attached with such assertion to the effect that the 'relationship of landlord and tenant has been denied.
Firstly, as I have earlier noted 'that there is no particular statement separately recorded to that effect by the learned Civil Judge on 11-5-2006 and it is only an obiter wherein the order of the learned Civil Judge, the person in possession of the property was termed as an encroacher and secondly if for the sake of arguments, it is presumed that such statement was made by the appellant, even then by no stretch of imagination that can be given a meaning that it was a refusal from the tenancy of respondent. A landlord out of frustration, when neither he was getting any rent from the tenant nor possession of the rented premises, can term the person in possession as an encroacher or in illegal possession of the suit property.
8. The claim of the respondent in order to give protection of his possession over the suit property is only an agreement to sell which does not create any title under the law. In situation like the present one, the Hon'able Supreme Court of Pakistan has provided guidelines by way of reported judgments in case of Abdul Rasheed v. Maqbool Ahmed and others (2011 SCM R 320) wherein an earlier view of the Apex Court in case of Haji Jumma Khan v. Haji Zarin Khan (PLD 1999 Supreme Court 1101) has been relied upon by holding that when a person in possession of a premises wherein he was initially inducted as a tenant subsequently claims to have purchased that premises through an agreement to sell, he has to vacate the premises and then to file a suit for specific performance of agreement to sell where after he would be given easy access to premises, in case he prevailed.
9. The non-issuance of notice under section 13-A of the Punjab Urban Rent Restriction Ordinance, 1959 has also been pleaded as a ground for non-suiting the petitioner in rent petition. The requirement of issuance of notice under section 13-A of the Ordinance in case of change in ownership is only meant to determine the default in payment of rent by the tenant and in case of non-issuance of such notice, the previous default cannot be alleged against tenant but by the act of non-issuance of such notice, the title of the new landlord would not become defective.
10. In the present case, the ground prevailed upon the courts below in non-suiting the appellant are not weighty and have no backing of law. The appellant has proved the existence of relationship of landlord and tenant successfully and when it was denied by the respondent in ejectment petition the moment such relationship was proved to be in existence the necessary consequence was nothing but to pass = an eviction order against the respondent.
11. The judgments, impugned herein passed by the learned courts below respectively, are result of illegality and the same are declared to have been passed without jurisdiction and of no legal effect.
12. Resultantly, this appeal is allowed, impugned judgments and decrees passed by the learned courts below are set aside and the ejectment petition filed by the appellant is accepted.