' SHAHID KARIM, J.---This petition relates to the property situated at Shahid Park, Mauza Devipura, Tehsil Cann. Bearing Khata No.54, Khatooni No.483, Khasra No.305, measuring 5-,Marlas, Nashtar Town, Lahore. According to the facts in the ejectment petition the said property is owned by the petitioner vide sale-deed No. 18443 dated 10-11-2004. This sale was effected in her favour by her husband. On 19-12-2006 an ejectment petition was filed by the petitioner on the ground that the property was required by the petitioner for personal bona fide need and on willful default. The respondent No.1 filed the reply to the said ejectment petition and denied the relationship of landlord and tenant between the parties. The precise submission was that the husband of the petitioner was attorney of his real brother who had entered into an oral agreement to sell with the respondent No.1 regarding the property on 1-12-2003 against a consideration of Rs.11 lac, out of which, according to the respondent No.1, Rs.300,000 had been paid as earnest money. The Rent Controller, Lahore framed the following issues on 10-7-2008:--
(i) Whether there exists relationship of landlord and tenant between parties? OPA
(ii) Order.
2. Therefore, the only question to be determined was whether the relationship of landlord and tenant was in existence between the parties or not. The Rent Controller, Lahore vide order dated 11- 1-2011 dismissed the ejectment petition. On appeal, the Addl. District Judge, Lahore also sustained the order of the Rent Controller and dismissed the appeal vide order dated 14-10-2011 (impugned orders).
3. The learned counsel for the petitioner submits that the impugned orders are based on misreading and non-reading of the evidence. He submits that the petitioner is admittedly the owner of property and has filed the ejectment, petition in her capacity as the landlady which she was entitled to. So far as the objection that the husband of the petitioner had not appeared as a witness, the pretext put forth by the learned counsel was that he was a public servant and was not available on the said date fur the recording of his evidence.
4. Learned counsel for the respondent No.1 submits that the said respondent is a bona fide purchaser of the property in question on the basis of an agreement to sell dated 1-12-2003 which was executed with the husband of the petitioner. He further submits that suit for specific performance was filed on 11-11-2006 which is still pending. Upon query, he submits that the said agreement to sell was an oral agreement. He has referred to certain portions of the deposition of the petitioner which, according to him, arc self-contradictory.
5. I have heard the learned counsel for the parties.
6. There are a few facts which are admitted on all hands and which go to the root of the matter.
Firstly, it is not denied that the petitioner is the owner of this property by virtue of a registered sale deed. Secondly, the respondent No.1 is in possession of the property and it is not known under what authority does he occupy the said premises. Thirdly, the claim of the respondent No. 1 is based on an agreement to sell dated 1-12-2003 which is oral and it is trite principle that an agreement to sell does not confer any right on a person. Fourthly, the respondent No.1 claims to have entered into an agreement to sell with the husband of the petitioner whereas admittedly, the petitioner is the owner of the property; hence the landlady as well.
7. The courts below have referred to certain portions of the evidence of the witnesses including the petitioner. I have gone through the evidence particularly the evidence of the petitioner as AW.1 and do not find any major contradictions which would destroy the worth of the evidence produced by the petitioner. The contradictions which have been pointed out by the Rent Controller are net material and the Rent Controller has not read the entire deposition of the petitioner as AW.1 holistically and in its proper perspective. This was never the case of the petitioner that the rent deed was in writing and also that she had given the property on rent to the respondent No.1 and her stance always was that the property had been given on rent to the respondent No.1 by her husband and once the property had been sold to her by her husband, it had become her property and she had thereby stepped into his shoes and become the landlord as well. Though she says in the cross-examination that the property had been rented out in June, 2004 but in the same breath clarifies by saying that it was in December that the property had been rented out.
8. It is not denied as has been brought forth above that there is a B sale deed in favour of the petitioner and thus, by all means, she is the landlady of the property as well. In that capacity she had a right to maintain the ejectment petition and it was for the respondent No.1 to allege and prove that the case was otherwise, for if the respondent No.1 was not the tenant then he was in illegal occupation of the property. The husband of the petitioner did not appear as a witness and it seems that there was a hint of collusion between the respondent No.1 and the husband of the petitioner, in that, the respondent No.1 alleges to have bought this property from the husband of the petitioner. Be that as it may, the agreement to sell on which the respondent No.1 relies, was oral and is also subject to adjudication before the civil court. The statement of AW.1 reproduced in the order of Rent Controller has also not been taken in its proper perspective. It is clear from the said statement that AW.2 Asif Ali was merely saying he did not recollect the month for which the rent had been paid/ submitted by the respondent No.1 but he, however, clearly recalls that he had accompanied Aqeel, husband of the petitioner many a times to receive the rent from the respondent No.l. He was also categoric in his statement that the petitioner was the owner of the property and that the respondent No.1 was a tenant in that property.
9. In Abbas Ali Khan v. Mst. Farhat lqbal and 2 others (2009 SCM R 1077) , it was held as follows:-- `---S. 13---Ejectment of tenant on grounds of default and bona fide need of landlady---Tenant taking the plea that he was owner of the property on the basis of an agreement to sell executed by the landlady---Validity---Tenant had not filed any copy of the said agreement of sale with the petition and admitted that the original of same had been lost---Tenant had admitted the title of landlady in his pleadings and that he obtained the possession of the premises from her--- Agreement to sell, held, did not confer title and tenant on the basis of such agreement was not entitled to deny relationship of landlord and tenant---Plea of tenant being mala fide, he was liable to be straightway ejected."
' Also in lqbal and 6 others v. Mst. Rabia Bibi and another (PLD 1991 Supreme Court 242), the following observations of the Hon'ble Supreme Court are pertinent:- "Ejectment of tenant---Tenants setting up plea of agreement to sell against landlord and suit for specific performance of agreement pending in Civil Court---Effect---Where sale agreement or any other transaction relied upon by tenants was seriously and bona fide disputed by landlord, tenants could not be allowed to retain possession during the litigation, where they continued to deny the ownership of landlord who had inducted them as tenants without any condition or reservation."
' Lastly, in Shajar Islam v. Muhammad Siddique and 2 others (PLD 2007 Supreme Court 45), it has been observed by the Hon'ble 'Supreme Court as follows:- "In normal circumstances, in absence of any evidence to the contrary, owner of property by virtue of his title would be presumed to be landlord and person in possession of premises would be considered as tenant under the law---Tenancy would not be necessarily created by a written instrument in express terms, rather might also be oral and implied---High Court in exercise of its Constitutional jurisdiction was not supposed to interfere, in findings on controversial question of facts based on evidence, even if such finding was erroneous."
10. The Rent Controller through the impugned order has not considered the evidence of the petitioner in its true perspective and has committed a patent error of law while dismissing the ejectment petition filed by the petitioner. The Addl. District Judge being the final appellant court has failed to apply its independent mind while passing the impugned order. In Dilawar Jan v. Gul Rehman and 5 others (PLD 2001 Supreme Court 149), the Hon'ble Supreme Court of Pakistan has observed as under:-- "... We are conscious of the fact that the learned High Court in exercise of Constitutional jurisdiction cannot sit as a Court of appeal but where order passed by Court, suffers from any jurisdictional defect or violates any provision of law, invocation of Constitutional jurisdiction would be justified and if the error is so glaring and patent that it may not be acceptable that in such an eventuality the High Courts have interfered when finding is based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of fact, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and where unreasonable view on evidence has been taken..."
' In Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others (2001 SCM R 338), it was held by the Hon'ble Supreme Court to the following effect:-- "4. There is cavil with the proposition that ordinarily the High Court in its Constitutional jurisdiction would not undertake to reappraise the evidence in rent matters to disturb the finding of facts but it would certainly interfere if such findings are found to be based on non-reading or misreading of evidence, erroneous assumptions of facts, misapplication of law, excess of abuse of jurisdiction and .Arbitrary exercise of powers. In appropriate cases of special jurisdiction, where the District Court is the final Appellate Court, if it reverses the finding of the trial Court on the grounds not supported by material on record, the High Court can interfere with it by issuing writ of certiorari to correct the wrong committed by the Appellate Authority. Reference can be made to Rahim Sliah v.
Chief Election Commissioner (PLD 1973 SC 24), Lal Din Masih v. Sakina Jan (1985 SCMR 1972), Muhammad Hayab v. Sh. Bashir Ahmad and others (1988 SCMR 193), Abdul Hamid v. Ghulam Rasul (1988 SCMR 401) and Assistant Collector v. Al-Razak Synthetic (Pvt.) Ltd. (1998 SCMR 2514)."
11. In view of discussion made above, as also in the light of the judgments handed down by the Hon'ble Supreme Court which are applicable on all fours with the instant case, it is held that the courts below have grossly misread the evidence available on record and, therefore, this calls for this Court to interfere in its Constitutional jurisdiction in order to avoid miscarriage of justice.
12. In view of the above, the petition is accepted and the impugned orders of the courts below are set aside. The respondent No.1 is granted a time of two months to vacate the premises in question and hand over the vacant possession of the property to the petitioner.