' SADIQ HUSSAIN BHATTI, J.---The petitioners are aggrieved by the Judgment dated 28-2-2007 passed by learned District Judge, Badin in First Rent Appeal No,6 of 2005 whereby the appeal was allowed and the ejectment order passed by the Rent Controller in Rent Case No,2 of 2004 was set aside.
2. The brief facts of the case are that the petitioners are owners of one shop on ground floor, measuring 41.5 sq. Yards, situated in Anaj Mandi, Matli Town, Taluka Matli, District Badin (the shop) which was let out to respondent No, 3 (the respondent) at a monthly rent of Rs,3000. Vide an agreement dated 20-3-2007, the petitioner entered into an agreement with the respondent for the sale of the shop at a total sale consideration of Rs,725,000 out of which an amount of Rs,325,000 was paid by the respondent at the time of execution of the agreement to sell and the remaining amount was to be paid after the shop was mutated in the name of the L.Rs, of the deceased owner of the shop by way foti khata badat and execution of sale-deed by the L.Rs, with the respondent.
Possession of the shop was already with respondent and one of the conditions was that till execution of the registry of the shop in the name of the respondent by the L.Rs, of the deceased owner with the respondent, respondent will not pay rent. The registry was to be done upto 15 March, 2004. As the terms and conditions of the said sale agreement were violated by the respondent, therefore, the petitioners gave legal notice dated 22-9-2004 to the respondent dissolving the agreement. This legal notice was not replied by the respondent. The petitioners issued another legal notice calling upon the respondent to pay rent at the rate of Rs,3000 per month from 15-3- 2004 till date as after dissolution of the agreement the respondent had reverted back to his position as tenant of the petitioners. Since the respondent failed to pay the rent the petitioner filed rent case for payment of the rent as above and for ejectment of the respondent from the shop on the ground of default in payment of rent. In response to , the summons issued to the respondent, he appeared and filed written statement wherein the averments made by the petitioners in the rent case were denied. On the basis of the pleadings of the parties, the following issues were framed by the learned Rent Controller for determination: "(1) Whether the relationship of landlord and tenant exists between the applicants and the Opponent?
(2) Whether the Opponent has committed wilful default?
(3) Whether the Opponent is liable to be ejected?
(4) What should the Order be?
3. After recording evidence and hearing learned counsel for the parties, the Rent Controller allowed the rent case in the following terms vide his order dated 31-5-2005: "in view of the facts and circumstances the opponent is directed to pay monthly rent at the rate of Rs,3000 per month from 15-3-2004 upto filing of this rent application. The opponent is also directed to eject(vacate) the case premises viz. One shop of C.S. No,348, Ward B, Annaj Mandi, Matli Town, Ground Floor, District Badin and hand over the physical possession to the applicant within thirty days. The opponent has made any agreement of sale with regard to demised shop he should seek the legal remedy by filing the suit."
4. The respondent challenged the said order dated 31-5-2005 by filing First Rent Appeal No,6 of 2005 before the District Judge, Badin, who allowed the same vide his judgment 28-2-2007 and reversed the findings of the Rent Controller. Hence, this petition.
5. Mr. Irfan Ahmed Qureshi, learned counsel for the petitioners, submitted that the order of eviction passed by the learned Rent Controller was just and correct and called for no interference by the appellate Court. He stated that the judgment of the appellate Court is result of non-reading and misreading of the evidence and the law on the point. He stated that the respondent, after making of the foti badal khata never performed his part of the agreement and never turned up to finalize the sale. He referred to the written statement of the respondent to show that the respondent was tenant of the shop. He finally argued that agreement to sell does not create any legal right in the shop in favour of the respondent unless the same is converted into a registered sale deed by payment of full price and mutation in favour of the respondent in the record of rights. Learned counsel for the petitioner relied on the case of Messrs Sattar Brothers v. Messrs Hanif Jee and Sons'(2005 CLC 1696).
6. On the other hand, Mr. Ejaz Ali Hakro, learned counsel for the respondent, submitted that the impugned judgment passed by the learned Appellate Court does not call for any interference by this Court as the same is based on cogent reasons and this Court, while exercising constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, cannot sit as a Court of appeal on a question of fact and this Court cannot, in exercise of its constitutional jurisdiction, interfere merely on the ground that a different view on the basis of same evidence was possible. He also stated that mere ownership of a property is not sufficient to establish relationship of landlord and tenant. The learned counsel also contended that this Court will only entertain a petition if a case is made out to the effect that the Rein Controller and the First Appellate Court have made an order palpably without jurisdiction or there is case of lack of jurisdiction or the finding is so perverse that it is not sustainable on the established principles of appreciation of evidence or any specific provision of law has been violated.
7. In support of his contentions the learned counsel relied on the following cases:--
(1) Mst. Aisha and another v. Mrs. Samar Afroze (2008 YLR 24),
(2) Mst. Mobin Fatima v. Muhammad Yamin and others (PLD 2006 SC 214),
(3) Hafeezuddin and others v. Badaruddin and others (PLD 2003 Kar. 444),
(4) Saifullah v. Muhammad Bux and others (2003 M LD 480), and
(5) Muhammad Anwar Khan v. Mian Ashgar Ali (1988 CLC 402).
8. I have heard the learned counsel for the parties, perused the record and have gone through the case-law cited before me.
9. The admitted facts in this case are that the petitioners are owners of the shop while the respondent was their tenant in respect thereof. On 20-7-2003, the parties entered into an agreement for the sale of the said shop by the owners/petitioners for a total sale consideration of Rs,725,000 out of which Rs,325,000 were paid by the respondent to the owners/petitioners while the balance sale consideration of Rs,400,000 was to be paid in future. It is an admitted position that such amount, till date, has not been paid by the respondent to the owners/petitioners. The first point for consideration formulated by the learned Rent Controller was whether there exists any relationship of landlord and tenant between the parties. This point was answered in the affirmative by the Rent Controller, however, this point was not discussed by the learned Appellate Court. This issue is very much dependent on the fate of the agreement executed between the parties for the sale of the shop.
10. It is a trite law that an agreement to sell does not give any right to the prospective purchaser except that he can file a suit for specific performance. In a recent case of Abdul Rasheed v.
Maqbool Ahmed and others (2011 SCM R 320) the honourable Supreme Court while dealing with the above point held that it is the settled law that where in a case filed for eviction of the tenant by the landlord, the former takes up a position that he has purchased the property and hence is no more a tenant then he has to vacate the property and file a suit for specific performance of the sale agreement whereafter he would be given easy access to the premises in case he prevails. In the above case the apex Court also referred cases of Shameem Akhtar v. Muhammad Rashid (PLD 1989 SC 575), Mst.Azeemun Nisar Begum v. Mst.Rabia Bibi, (PLD 1991 SC 242), Muhammad Rafique v.
Messrs Habib Bank Ltd. (1994 SCM R 1012) and Mst. Bor Bibi v. Abdul Qadir (1996 SCM R 877). Even otherwise it is now well-settled that the sale agreement does not create any title/ownership in favour of the purchaser until the deal is finalized, entire payment is made and the property is mutated in the name of the purchaser. If the entire sale consideration is paid by the purchaser to the seller, which is admitted by the seller, the purchaser can assert his right as only the formality of the mutation remains in such case. But, where only a part payment bas been made and the balance sale consideration, which is a substantial amount, is still to be paid by the purchaser to the seller, no right can be asserted by the purchaser.
11. Thus the question which arises in this case is as to in what capacity the respondent is occupying the shop as neither he has paid the entire sale consideration nor is he making endeavour to get the specific performance of the agreement. If he is not the owner of the shop then, of course, he is tenant of the petitioners.
12. A perusal of the written statement of the respondent before the trial Court reveals that he is asserting that neither he nor the petitioners are the owners of the shop. It would be advantageous if para 6 of the WS is produced, which reads as under: "6. That the contents of para No,6 of the application is partly admitted and partly denied, it is submitted that at the time of execution of sale agreement the opponent was paying shop rent at the rate of Rs,600 per month, no fresh agreement after owner of shop was executed as such the tenancy is denied, it is submitted that an amount of Rs,325,000 as earnest money is already with the applicants which they have admitted in para No,3 of the application, it is further submitted that after the purchase of shop neither the opponent of the applicant, nor the applicants are owners of the demised shop, nor any rent is liable against the opponent after the execution of sale agreement.".
13. This assertion, to say the least, is absurd as no property can be said to be ownerless. The correct legal position is that the petitioners are owners of the shop until and unless the same is purchased by the respondent after paying the entire sale consideration and executing the necessary documents in this regard. It is an admitted position that presently the shop is in the name of the petitioners therefore they are the real owners of the shop.
14. Further perusal of the WS shows that the respondent himself asserted that "neither the opponent have violated the terms and conditions of the agreement, in fact the applicants have violated the terms and conditions of agreement." Thus, on the one hand the petitioners are asserting that the respondent has violated the terms and conditions of the agreement while the respondent is asserting that the terms and conditions of the agreement were violated by the petitioners. Thus, the parties are in agreement that the terms and conditions of the agreement have been violated, by whom, it is to be decided by a competent court. The consequence of violation of the terms and conditions has been given in the agreement itself as under:--
15. The learned Appellate Court lost sight of the fact that after paying of the sum of Rs,325,000 neither the respondent became owner of the shop nor he can be allowed to enjoy the possession of the shop for indefinite period without payment of any rent and without completing his part of the agreement by paying full sale consideration. In case the respondent is of the opinion that the petitioners have violated the terms and conditions of the agreement then he can approach a civil Court for redressal of his grievance and if he proves that he is correct and the only relief which he can claim is that he will seek repayment of the amount paid by him as well an equal amount to the amount paid by him as fine. However, by no stretch of imagination he can be allowed to keep the shop in perpetuity or that the shop has become ownerless.
16. I am mindful of the fact that when there is conflict of judgment between the trial Court and the appellate Court, the judgment of the appellate Court is to be preferred. However, if it is shown from the record that such findings are not supported by evidence or that the conclusions drawn by the appellate Court are against the record or the judgment of the appellate Court suffers from non- reading or misreading of evidence then this Court can correct the wrong. In my view, the learned Appellate Court was not justified to ignore the important issue of the existence or otherwise of the relationship of landlord and tenant. It was only upto 15 March, 2004 that the respondent was not required to pay the rent or thereafter till the petitioners were not ready to perform their part of the agreement. Thereafter, either the agreement was to be performed or the parties were to revert to their original position of landlord and tenant.
17. I am mindful of the observation made in the case of Hafeezuddin (supra) that mere ownership of property as not sufficient to establish relationship of landlord and tenant but in the present case it is an admitted fact that the respondent was tenant of the petitioners and it was only the agreement executed between the parties that he was allowed not to pay rent upto the execution of the registry. It would have been entirely different scenario if the respondent has filed a case for specific performance as in that case it would have been established that the petitioners were avoiding to perform their part of the agreement and thus would have been able to ask for rent even after the expiry of the period fixed for execution of registry as in that case the petitioners would have been the defaulters.
18. In view of the above, I am of the opinion that the impugned judgment suffers from non-reading and misreading of the evidence and is against the law laid down by the superior courts, therefore, the same is set aside and the order of the Rent Controller is upheld. However, the rent would be payable with effect from July, 2004 as till June, 2004 the fort Khata badal was not made by the petitioners. The respondent, however, would be at liberty to approach the competent court having jurisdiction to agitate his case that the petitioners violated the terms and conditions of the agreement therefore exposing them to consequence of such violation.