' SYED HASAN AZHAR RIZVI, J.---Through this first rent appeal the appellant has challenged the judgment dated 15-12-2011 passed by the learned Additional Controller of Rents, Clifton Cantonment, Karachi allowing Rent Case No,9 of 2011 filed by the present respondent/landlord (hereinafter referred as respondent) seeking ejectment of appellant Mrs. Refhat Hamidee (hereinafter referred as appellant) from the demised premises bearing Bungalow No,56/1, 20th Street of Khayaban-e-Badar, Phase-V, DHA, Karachi, (hereinafter referred as demise premises) on the ground of personal us and occupation of his son Shaik Muhammad Azeem.
2. The learned Additional Controlle of Rents issued notice to the appellant we filed her written- statement denying the relationship of tenant and landlord between the parties. It was stated that appellant mother Mst. Zahida Khatoon has purchase the alleged tenement from its real owner Syed Agha Asif Mehdi Shah against the total sale consideration of Rs,50,60,000 vide sale agreement dated 8-12-1996 and such fact was admitted by the latter in Suit No,1712 of 2005 filed by him in this Court. It was further stated that the respondent did not implead the legal heirs of the deceased Mst. Zahida Khatoon who was also inducted as tenant with the opponent/ appellant by the owner of the alleged tenement namely Syed Agha Asif Mehdi Shah and this fact was admitted by the respondent in paragraphs 3 and 4 of the application and as such after the death of the appellant's mother, the tenancy also devolved into the legal heirs who were residing with their deceased mother.
3. Respondent/landlord filed his affidavit-in-evidence and his examinationin-chief and cross- examination was recorded on 21-7-2011. Appellant also filed her affidavit-in-evidence and her cross-examination was recorded on 20-10-2011. Thereafter the learned Additional Controller of Rents framed the only point for determination "Whether there exists a relationship of tenant and landlord between the parties?"
4. After hearing the learned counsel for the parties, the learned Additional Controller of Rents allowed the rent case vide judgment dated 15-12-2011 and directed the opponent/appellant to vacate and handover the demised premises to the applicant/respondent within a period of 30 days. It is against the said order that the appellant has filed this appeal.
5. I have heard the learned counsel for the parties and gone through the material available on record with their assistance.
6. Mr. Iftikhar Javaid Qazi, learned counsel for the appellant has contended that the learned Additional Controller of Rents has not only erred in law, but misread the evidence while deciding the issue against the appellant. He contended that relationship of tenant and landlord does not exist between the parties. He contended that appellant's mother Mst. Zahida Khatoon since deceased has purchased the alleged tenement from its real owner Syed Agha Asif Mehdi Shah against the total sale consideration of Rs,50,60,000 vide sale agreement dated 8-12-1996 and this fact was admitted by the latter in Suit No,1712 of 2000 filed by him in this Court. He contended that the sale agreement has not, been got cancelled by the owner namely Sayed Agha Asif Mehdi Shah and as such the said sale agreement still persist. He further contended that the respondent did not implead the legal heirs of the deceased Mst. Zahida Khatoon who was also inducted as tenant with the opponent by the owner of the alleged tenement namely Syed Agha Asif Mehdi Shah and this fact is admitted by the respondent in paras Nos.3 and 4 of the ejectment application and as per law after the death of mother of appellant the tenancy also devolved into the legal heirs who were residing with ,their deceased mother in the subject premises.
7. The learned counsel for the appellant has next contended that admittedly the appellant came into possession in pursuance of a written sale agreement and at no point of time any tenancy existed between the previous owner and the appellant. He further contended that the basic fact of delivery of possession has not been looked into by the trial Court as the claim of the respondent is based upon the alleged conveyance deed which according to the respondent was executed in his favour by the previous owner, which conveyance deed is silent about the fact that as to who was in possession of the premises at the time of execution of said Conveyance deed. He further contended that it is important to note that the said conveyance deed was allegedly executed during pendency of Suit No,1712 of 2000, therefore the respondent entered into an illegal deal which is not permissible during pendency of litigation relating to the said property. He urged that no one has disputed that the appellant is in possession of the demised premises since 1996. He while referring the judgment passed in Suit No,1712 of 2000 has urged that this Court has only opined that the previous owner could have invoked the jurisdiction of the Rent Controller, but neither the previous owner filed any appeal against such order nor approached the Rent Controller. He submitted that the respondent in order to make and create a false ground of relationship of landlord and tenant, manufactured false documents such as rent receipts and neither produced any rent agreement or any witness to prove creation of relationship of landlord and tenant between him and appellant and the rate of rent. He further urged that it is manifest on the record that no rent was ever offered, tendered or paid by the appellant to the previous owner, hence the rent receipt produced by the respondent has no value. He, therefore, submitted that the judgment passed by the learned Rent Controller is liable to be set aside. Learned counsel for the appellant in support of his submissions has placed reliance upon the cases of MUHAMMAD NAWAZ MAGSI V.
HAJI ILLAHI BUX AND OTHERS (2010 CLC 407), CHAUDHARY NAZIR AHMED V. MRS. MARIAM SALAHUDDIN KHAWAJA AND OTHER (PLD 1994 Lahore 252), DR. ABDUL HAFEEZ. V. PROVINCE OF PUNJAB AND OTHERS (PLD 1991 SC 165), and on an unreported judgment of Hon'ble Supreme Court of Pakistan in Civil Appeals Nos.1197 and 1198 of 2009 (Abdul Rehman Farooque v. Zaiul Hague Makhdoom and others).
8. Conversely, Mr. Sohail H. K. Rana, learned counsel for the respondent strongly supported the view taken by the learned Additional Controller of Rents in his impugned order. Making reference to the impugned order he contended that the learned trial Court has carefully examined all the relevant facts stated in the application and its supporting affidavit so also the relevant law on the point and has rightly reco:ded his conclusion for ejectment of the appellant from the demised premises.
9. The learned counsel for the respondent while refuting the arguments of the learned counsel for the appellant has stated that there exist no agreement of sale between the appellant's mother and previous owner and the appellant's mother has been inducted in the demised premises as tenant.
He contended that the appellant claimed ownership of the demised premises and pleaded justification for not paying the rent to the respondent on the strength of an unregistered agreement to sell. He submitted that the registered sale-deed has always precedence and preference over the prior unregistered agreement to sell. The respondent being successor-in- interest of the original landlord had stepped into the shoes of the previous landlord. He also contended that conduct of the appellant shows that she was interested in delaying the adjudication and her eviction on one pretext or the other. He submitted that agreement to sell does not create any right and if it was a genuine document the appellant could have moved the relevant forum for specific performance of the contract.
10. Besides, the learned counsel for the respondent has made reference to paragraph (3) of the written statement filed by appellant in Rent Case. No,9 of '2011 and stated that she admitted that her mother was inducted as tenant by previous owner on rant at the rate of Rs,22,000 per month.
He also stated that in the same manner she admitted such fact in para-4 of her written statement filed in Suit No,1712 of 2000. He also urged that the appellant has failed to prove the payment of such a huge sum of money. He further urged that in the affidavit-in-evidence she herself stated that after the death of my mother according to law the tenancy was devolved into the legal heirs.
He, therefore, submitted that from the pleadings it is crystal clear that the appellant is the tenant and not the owner of the demised premises. He prayed for dismissal of this appeal with compensatory costs. In support of his submissions, learned counsel has placed reliance on the following cases:--
(1) 1984 CLC 3483, (2) 1995 SCMR 1407, (3). 1997 SCMR 567, (4) 2004 YLR 3317, (5) 2004 CLC 862, (6)
2005 SCMR 1079, (7) 2007 CLC 1225, (81 2008 CLC 650, (9) PLD 2008 Kar. 424 and (10) 2009 SCMR 1396
11. I have given due consideration to the arguments advanced by the learned counsel for the parties, perused the available material and the case-law cited at the bar. It is an admitted feature of the case that appellant was inducted in the property in question as a tenant. This fact is also incorporated in the written statement filed by the appellant in Suit No,1712 of 2000 and written statement filed in the ejectment case and so also in the affidavit-in-evidence filed by her. She has failed to prove any evidence in respect of payment made by her to the previous landlord of the demised premises. The appellant relied upon a sale agreement but she had not produced it in her evidence. It is also an admitted fact that after execution of the sale agreement no registered sale deed was executed in favour of appellant by the previous owner. Thus the sale agreement executed in between the appellant and owner of the property has no legal value without registration of the documents on the basis of sale agreement. Furthermore, as per admission or the appellant, she remained tenant of the respondent and has not paid any rent. It is settled law that unless and until registered sale deed is executed in between the parties, the relationship of tenant and landlord exists in between the parties and the tenant cannot get benefit of sale agreement and to avoid payment of rent. However, it may be observed that agreement to sell does not create any right, title or interest in the property itself, but A same only would grant right to get contract completed through decree for specific performance of contract, from Civil Court, if alleged vendor had refused to perform and execute alleged contract. No useful purpose would be served in remanding the case to Rent Controller for framing issues as Rent Controller had not to decide fact of sale and purchase allegedly made between the tenant and predecessor-in-interest of landlord.
12. The learned counsel for the appellant has mainly relied on the case of Muhammad Nawaz Magsi (Supra), wherein it; has been held that law did not entitle a person to transfer a right in a property which he himself did not possess though the property might be in his name. As the land in question has already been agreed to be sold under agreement to sell in favour of plaintiff and the same was coupled with transfer of possession, therefore, subsequent transferees could not be conferred with any lawful title in the disputed land and subsequent transferees could not even claim to be bona fide purchasers for value without notice. I agree with the above proposition of law, but in the case in hand the situation is altogether different.
The appellant claiming ownership right in the demised premises on the basis of sale agreement executed in between the parties in the year 1996, but till to date she has failed to execute sale deed in her favour and filed any suit for specifics performance of contract. In the cited case the plaintiff approached the Court for seeking his legal right by filing suit for specific performance and get decree in his favour. The other cases on which the learned counsel has placed reliance are also on different footings and have no relevance to the case in hand.
13. However, the question about genuineness or otherwise of Conveyance Deed executed by the previous owner in faovur of present respondent, which was vigorously challenged by the learned counsel for the appellant is obviously fall within the domain of Civil Court of competent jurisdiction and not the Rent Controller. It may be observed that by not paying the monthly rent to the respondent, the appellant has rendered herself liable to eviction. The learned counsel for the appellant has not been able to point out any misreading of the evidence.
14. Under the circumstances, I am of the view that on an overall assessment of evidence the trial Court was justified in ordering the eviction of the appellant from the demised premises and its findings are not open to interfere through this appeal. Resultantly, the appeal is dismissed with no order as to cost along with listed application. Interim order passed on 5-4-2012 is hereby vacated.
Appellant is directed to vacate the subject premises within thirty (30) days from today.