' This is a petition under Article 9 of the Provisional Constitution Order, 1981, whereby Abdur Rashid and others petitioners want this Court to declare the judgment and decree passed by the Civil I Judge, Kot Adu on 21st September, 1980 and of the learned Additional District Judge, dated 25th January, 1982, to be without lawful authority and of no legal effect.
2. The facts leading up to this petition as stated in the petition, in brief, are that the predecessor-in- interest of the petitioners purchased House No, 303 situated in Ward No, 6, Kot Adu, District "Muzaffargarh in an open auction by the Settlement Department. He as issued Permanent Transfer Deed. At the time of purchase Sheikh Abdul Bari-Respondent No, 3 was in possession of the house.
Petitioners Nos. 1 and 2 served a notice upon him intimating the transfer of It he house in their favour and demanding the monthly rent. The respondent No, 3 allegedly admitted to pay the rent to the predecessor-in-nterest of the petitioners. Subsequently, an agreement to sell was executed in favour of respondent No, 3, whereby, he had agreed to purchase the said house for Rs, 3,500. An agreement to this effect was executed on 31st August, 1965. It was agreed between the parties that within one year the house will be transferred to respondent No, 3 on payment of the balance of . Rs, 3,000. On his failure to make the payment Abdur Rashid and Abdul Hamid petitioners Nos. I and 2 sons of the predecessor-in-interest filed a suit for ejectment on the basis of the ownership. It has been averred in the plaint that the disputed house is situated in Ward No, 6 of Kot Adu Town Committee and the same was transferred to their deceased father namely, Abdul Ghafoor. It was further averred that respondent No, 3 was in unlawful possession of the house since 1965 and has not paid anything for the use and occupation of the same and as such the plaintiffs/petitioners were entitled to Rs, 540 for the use and occupation of the house for 3 years. Respondent No, 3 in his written statement raised various preliminary objections. He, however, admitted that the disputed house was transferred in auction to the deceased father of the plaintiffs petitioners Nos. 1 and 2. It was asserted by him that the house was sold to him through agreement to sell dated 31st August, 1965. He also stated that he had paid Rs, 500 and he was prepared to pay the balance. He further stated that since the plaintiff-petitioners 1 and 2 were present at the time of the bargain they were estopped from bringing the suit.
3. The learned trial Judge framed the following issues :
(1) Whether this Court has no jurisdiction to hear this suit? OPD
(2) Whether the suit is under-valued for the purposes of Court-fee and jurisdiction, if so what is the correct valuation ? OPP
(3) Whether the suit is not maintainable in its present form ? OPD
(4) Whether the plaintiffs are estopped to bring this suit? OPP
(5) Whether the suit is not verified according to law, if so, its effect. OPP.
(6) Whether the predecessor-in-interest of the plaintiff agreed to sell the disputed premises to the defendant for a consideration of Rs, 35,00.
(7) Whether the predecessor-in-interest of the plaintiffs received Rs, 500 from the defendant as part payment of consideration of impugned transaction ? OPD'
(8) Whether the defendant is in illegal possession of the disputed premises, if so, whether the plaintiffs are entitled to the possession of the suit property ? OPD
(9) Whether the plaintiffs are entitled to the mesne profit for the use and occupation of the disputed house by the defendant, if so, what amount ? OPP.
(10) Relief.
' Issues Nos. 1, 3, 4 and 5 were found against the defendant. On issues Nos. 6 and 7 the trial Judge found that the father of the plaintiffs had agreed to sell the disputed house to the defendant for a sum of Rs, 3,500 and that he had received Rs, 500 from the defendant as part payment of such consideration. He decided these issues in favour of respondent No, 31 defendant. On issue No, 8 the trial Court held that 'Respondent No, 3 was in illegal possession of the disputed premises and the plaintiffs/petitioners Nos. 1 and 2 are entitled to the possession. On issue No, 9 the Court awarded Rs, 540 as compensation for the illegal occupation and use of the disputed house. Issue No, 2 was decided against the defendant. In view of the above findings, the suit was decreed in favour of the petitioners/plaintiffs 1 and 2.
'Aggrieved by this judgment and decree respondent No, 3 filed appeal which was accepted by the learned Additional District Judge on 25th January, 1982. The learned Additional District Judge while discussing the finding on issue No, 8, has stated as follows.
"Learned counsel for the appellant contends that the learned lower Court having found issues Nos.
6 and 7 in favour of the appellant was not justified in finding issue No, 8 against him in view of the protection available to him under the principle laid down in section 53-A of the Transfer of Property Act. I may remark here that the defence plea of the appellant which gave rise to issues Nos. 6 and 7 was that he is in possession of the suit house under an agreement to sell dated 31st August, 1965, Exh. D-1 executed in his favour by the predecessor of the respondents after having received earnest money of Rs, 500 out of the agreed sale price of Rs, 3,500 of the house. The learned lower Court found this defence plea proved under issues Nos. 6 and 7, but observed under issue No, 8 that since the appellant never paid the balance of sale price nor filed any suit for specific performance, his possession, therefore, tentamounts to illegal possession. I am afraid, the finding of the learned lower. Court on issue No, 8 is erroneous on two-fold grounds. Firstly, his possession is protected to be lawful possession under the principle laid down in section 53-A, T. P. Act as held in a number of authorities i. e. PLD 1961 Lahore 372, PLD 1975 Quetta 22 and PLD 1975 Lab.
489. Secondly, a perusal of the agreement Exh. P-1 in favour of the appellant admitted by the respondent shows that there was no covenant on the part of the appellant to pay the balance sale price or sue for specific performance of the contract. The covenant, in fact, was on the predecessor of the respondents to first obtain PTD and then ask the appellant to pay the balance sale price and get a sale deed executed in his favour. There is no evidence nor it is even the case of the respondents in the plaint that the appellant was given notice of PTD having been issued but he declined to pay the balance sale price and get the sale deed executed in his favour. Unless that is done, for which there is no time fixed in the agreement, the appellant is not even supposed to go to the Court for specific performance of the contract for the simple reason that he can presume in terms of the agreement that he would be informed of the PTD having been issued and required to get a sale deed executed on payment of the balance price. I am, therefore, of the view that the learned Civil Judge has erred in deciding issue No, 8 in favour of the respondents. The finding is reversed."
4. The learned counsel for the petitioners while supporting the judgment of the learned Civil Judge has criticised the judgment and decree of the learned Additional District Judge-respondent No, 1 on the ground that he has given flimsy, arbitrary and whimsical reasons for setting aside the judgment and decree passed by respondent No,
2. He further contends that respondent No, 2 has failed to appreciate the case. He argues that the petitioners are the legal heirs of Abdul Ghafoor the purchaser and as such on the failure of the respondent No, 3 to fulfill the terms and conditions of the agreement to sell they were entitled to the possession and compensation.
5. After hearing the learned counsels I find that respondent No, 1 has properly considered and appreciated issue No,
8. He was well within authority to reverse the findings of the learned Civil Judge on issues Nos. 8 and 9. He has applied his mind and has given reasons as detailed above.
6. To my mind, the suit for ejectment before the Civil Judge was not competent at all. The house is situated, in urban area within the limits of Town Committee Kot Adu. On the transfer of the house the plaintiffs/petitioners issued notice to Sh. Abdul Bari-Respondent No, 3 intimating him the transfer and the demand of the rent (as stated in para. No, 3 of this petition) and as such I am of the opinion that the relationship of landlord and tenant had been created between the parties. The petitioners could not file the Civil Suit for his ejectment and could seek his ejectment in accordance with section 13 of the Urban Rent Restriction Ordinance. As for the contentions mentioned above I find that the reasons given by the learned Additional District Judge are neither flimsy nor arbitrary.
He has properly appreciated the case and that the petitioners were not entitled to decree of ejectment in the circumstances of the case.
' For what has been stated above there is no force in this petition and the same is dismissed in limine.