SHAFI-UR-REHINIAN, J.-The petitioner, a tenant of the shop, seeks leave to appeal against the judgment of the Lahore High Court dated 21-5-1980 whereby his second appeal against ejectment order was dismissed.
2. The respondent claiming himself to be a landlord of the petitioner sought his eviction on the grounds that the rent had not been paid and the property was required for his personal use. He claimed the petitioner to be a tenant in the property since 14-I1-1969. In resisting the claim the petitioner claimed that he was in possession of the property under an agreement to sell under which he had advanced a sum of Rs. 8,000 and bad been placed in its possession. The other grounds taken up by the landlord were also challenged. In the first round of litigation the only issue framed was with regard to the existence of relationship of landlord and tenant. It was held that such a relationship existed and the petitioner was a tenant of the property since 14-11-1969.
Thereafter two additional issues with regard to default and the personal need of the landlord were framed and eviction of the petitioner ordered.
3. The learned counsel for the petitioner has taken up two grounds for challenging the judgment impugned by this petition. It has been urged that his request seeking the personal appearance of the landlord with a view to obtain his signatures for getting it compared with the signatures on the agreement to sell was wrongfully denied while the Rent Controller was seized of the proceedings on the issues on merit. Secondly, it is contended that in the matter of default and personal need the Courts were in error in relying upon or referring to the evidence which had been recorded on the preliminary issue with regard to the existence of the relationship of landlord and tenant.
4. The specific issue with regard to the existence of the relationship of landlord and tenant had arisen because as reproduced in the judgment of the High Court the plea of the petitioner was as follows :- "The execution of the rent note dated 14-11-1969 was denied and it was claimed by the appellant that he was in possession of the shop in question on the basis of the agreement of sale dated 1-7- 1972 by which it was stated that the respondent had agreed to sell the shop in question for a total consideration of Rs. 20,000."
The controversy on the preliminary issue, therefore, was whether the posses--sion of the petitioner was relatable to the agreement to sell or to a tenancy coming into existence earlier. On this question the petitioner failed and the decision attained finality. One of the grounds which was specifically noted for his failure was that he failed to get the agreement to sell proved in accordance with law at that stage.
5. It is contended by the learned counsel for the petitioner that even on the two issues on merits if he could bring on record the agreement to sell its execution would have implied waiver in the matter of default of an earlier date if any and also would have denied the landlord the right to get the petitioner evicted on the ground of personal need. These con--sequences do not directly and necessarily follow from tine agreement to sell and it could not have any bearing on these two issues.
6. The learned counsel for the petitioner also pressed the principle contained in section 53-A of the Transfer of the Property Act for protecting his possession over the property. This assumes a finding that his possession over the property was under the agreement to sell and not as tenant as held finally by all the Courts dealing with the subject. The specific question earlier in issue was whether the petitioner was in possession as a tenant without any qualification or was in possession under an agreement to sell. That question having been finally and irrevocably decided against the petitioner it was no longer open to 'him to bring back the same controversy by getting the deficiency in the earlier round made up.
7. In proceedings before the Rent Controller there could possibly be no prohibition either of law or of propriety in referring to the evidence brought on record earlier for recording a finding irrespective of the fact whether the evidence related to the preliminary issue or to the issues framed subsequent to the decision of the preliminary issue. The substance of the controversy, the nature of the claim and the exact relief sought was all the time clear to the petitioner anti he could not insist on its being dealt with in compartments or by bits.
8. We do not find any merit in this petition and dismiss the same. However, on a request by the learned counsel for the petitioner we allow three months' period to him to hard over the vacant possession of the property.