SAFDAR SALEEM SHAHID, J.---This judgment shall dispose of instant writ petition (W.P. No.39842 of 2016) as well as connected C.R. No.2186 of 2016 as property in question and the parties are same.
2. Through the instant constitutional petition, the petitioner has called into question the legality of the judgment dated 06.01.2016 passed by the learned Special Judge (Rent), Jhang, whereby ejectment petition filed by the petitioner was dismissed. Against the aforesaid judgment, petitioner filed an appeal before learned Additional District Judge, Jhang, which was also dismissed vide judgment dated 26.10.2016.
3. Brief facts of the case necessary for the disposal of instant writ petition are that present petitioner filed an ejectment petition on 01.12.2012 against respondent No.3 contending that on the basis of sale deed dated 17.12.1981, property measuring 2-marlas 138 sq. property No.1251, plot No.232/S became in his ownership. After purchase of the said plot two shops along with a vacant shed were constructed. One shop along with shed was rented out to respondent No.3 on the basis of oral rent deed dated 15.03.1992 @ Rs.1000/- per month with the annual increase of 10% for a period of four years, in presence of witnesses namely Mukhtar Ali and Arshad Ali. It was contended that after expiry of four years on the request of respondent. No.3, petitioner continued with the tenancy of respondent No.3. In June, 2010, respondent No. 3 stopped paying rent. Petitioner filed ejectment petition on the ground of personal need, repair of shop and shed and default of payment of rent since, June, 2010.
4. Respondent No.3 while filing application for leave to contest averted that the plot No.232/S, property No.1251, Chak Junubi, District Jhang, has been purchased by him on the basis of agreements to sell dated 18.06.1998 and 03.11.1998, amount has been paid in presence of witnesses and possession also has been delivered to him. It was further contended that present petitioner failed to perform the agreements, therefore, suit for specific performance titled 'Muhammad Latif v. Muhammad Ismail' has been filed in the Civil Court, Jhang. Respondent No.3 specifically denied the relationship of landlord arid tenant between the parties. The petitioner filed reply to the application for leave to contest wherein he mentioned that out of two agreements to sell only one was executed by him but respondent No.3 failed to perform his part, therefore, his earnest money was forfeited. Regarding other agreement to sell and receipt of payment was denied being bogus and fabricated. Learned Special Judge(Rent) vide order dated 05.1 1.2013 allowed application for leave to contest and framed the following issues:--
1. Whether there exists relationship of landlord and tenant between the parties? OP A.
2. Whether respondent is liable to be ejected from the disputed property? OP A.
3 Relief.
Documentary and oral evidence was adduced from both the sides. Learned Special Judge (Rent) vide judgment dated 06.01.2016 dismissed the ejectment petition. Petitioner being aggrieved from said order , preferred appeal before learned Additional District Judge, which was also dismissed vide judgment dated 26.10.2016.
5. Learned counsel for the petitioner argued that learned Special Judge (Rent) has not appreciated the document even produced -by the respondent; admittedly Ex.R-1 agreement to sell was executed between the parties and this document was produced by the respondent where respondent has admitted his possession as tenant on the shop; agreement to sell Ex.R-1 was to be execu ted till 15.10.1998 whereas it was written on 18.06.1998; learned Special Judge (Rent) has ' not considered the legal aspect of the admission on the part of the respondent that he conceded his status as tenant on the shop in Ex.R-1 whereas the plea of the responden t was admitted correct that no relationship of landlord and tenant exist in between the parties since the year 1998; the suit for specific performance of the said agreements dated 18.06.1998 and 03.11.1998 was filed on 26.09.2012 after lapse of 16 years of the said agreements; Ex.R-1 is mere agreement to sell which does not confirm any right of ownership to the respondent and his status as tenant will remain same; this is settled principle that a tenant is always a tenant and mere execution of agreement to sell will not change its status unless the same is legally completed. Learned counsel for the petitioner has argued that in the constitutional jurisdiction concurrent findings of the courts below can be interfered if these are proved perverse or as a result of arbitrariness. In this regard, learned counsel has referred the case law reported as 'Mst. Surraya Jabin v. Mst. Hajran Bibi and others' (2013 CLC 122), `Khadim Hussain and 12 others v. Gul Hassan Tiwano and 3 others' (2013 CLD 981), 'Inayat Begum and 9 others v.
Shah Muhammad and others' (2014 YLR 1797 ), `Muhammad Zahid Aslam v. Haji Dilbagh and 7 others' (2015 YLR 1886 ) and `Mst. Sharaf Elahi v. Additional District Judge and 2 others' (2011 MLD 1855 ). Learned counsel further argued that agreements to sell entered into between the landlord and tenant after execution of the tenancy agreement, the words 'landlord' and 'tenant' used in Section 10 of the Punjab Rented Premises. Act, 2009, presupposed the existence of the relation ship of tenancy between the parties, agreement to sell that Section 10 of the Act referred to were, therefore, the ones entered into between existing landlord and tenants subsequent to their tenancy agreement and during the subsistence thereof, which was entirely different from those cases where there was no relationship of landlord and tenant from the very beginning. Reliance has been made on the esteemed citations `Mian Umar Ikram ul Haque v. Dr. Shahida Hasnain and another' (2016 SCMR 2186 ). Learned counsel further referred case laws reported as 'Haji Jumma Khan v. Haji Zarin Khan' (PLD 1999 Supreme Court 1101) that till the time tenant was able to establish his claim for specific performance on the basis of alleged sale agreement, the landlord would continue to enjoy the status of being owner and landlord of the premises. Learned further referred the case laws reported as `Syed Tafsir Hussain v. Muhammad Rashid Janjua' (2013 MLD 1648 ), lqbal and 6 others v. Mst. Rabia and another' (PLD 1991 Supreme Court 242), `Khusro Alam Hydri v.
Mst. lqbal Begum' (1981 CLC 347) and it was argued that section 53-A of Transfer of Property Act, has no bar to the ejectment of the tenant willfully defaulting in making payment of rent to landlord notwithstanding tenant having an agreement for sale of property in his favour and having done some act in furtherance thereof unless tenant shown to be continuing in possession in part of performance of contract. Protection of section 53-A Transfer of Property Act, is not available to the tenant. Reliance is made on the case law reported as 'Man Muhammad Abdullah v. District Judge, Sahiwal and 6 others' . (PLD 1985 Lahore 467). It was argued that the both the court below have not considered the legal aspect of the document Ex.R-1 which has been produced by the respondent himself.
6. Learned counsel for the respondent, on the other hand, has opposed this petition while referring the case law reported as 'Muhammad Shaft v . Noor Nabi' (2020 CLC 1480 ).
7. Arguments heard. Record Perused.
8. The point of determination in the controversy between the parties is whether in presence of admitted document Ex.R-1 by both the parties learned Special Judge (Rent) has rightly answered issue No.1 regarding existence of relationship of landlord and tenant betwee n the parties. It is observed with deep concern that Ex.R-I was admitted by the parties. This document was produced by the respondent. The completion date of agreement was fixed as 15.10.1998. When the date is fixed in the agreement, limitation for filing the suit for specific performance come within purview of Article 181 of Limitation Act and that is three years whereas the other document is Ex.R-4 which is also agreement to sell tendered by the respondent but not admitted by the executor or proved by the claimant, therefore, no authenticity can be given to the said document. The view of learned Special Judge (Rent) drawn in paragraph No.18 is wrong that "meaning thereby through admitted agreement Ex.R-1 parties agreed to terminate their previous relationship of tenant and land lord and as per terms of agreement Ex.R-1 from 18.06.1998 petitioner agreed to sell suit property to respondent." This view is totally against the basic law. In Ex.R-1, there is mentioning of relationship of land lord and tenant betw een the parties but there is no such word or sentence used that with the execution of Ex.R-1 relationship of land lord and tenant between the parties has come to an end, therefore, learned Special Judge (Rent) has committed a severe mistake by holding this fact. Respondent if was willing for completion of Ex.R-1 could have filed the suit for specific performance within three years from the date of execution of the same but he filed suit for specific performance in the year 2012. The subsequent agreement to sell even if it is proved will no effect the legal aspect of Ex.R-1. The assertion of respondent that after the execution of Ex.R-1 he stopped payment of rent as there exist no relationship of landlord and tenant between the parties, is admission on his part and is default for payment of rent. Learned Special Judge (Rent) has committed an error while holding that after the execution of Ex.R-1 and Ex.R-4, there remained no relationship of landlord and tenant between the parties. Learned Special Judge (Rent) has formed his opinion on the analogy that since respondent filed the suit for specific performance of agreement dated 18.06.1998 on 20.06.2012 whereas petitioner filed this petition later in time on 01.12.2012 to pursue his rights. Just it can be presumed that the petitioner was sleeping over his rights.
Moreover , since 1998 till the filing of petition in the year 2012, the petitioner never agitated his rights with respect to suit property at any forum and this show s some sort of contentment on behalf of the petitioner . This sort of view may be considered, if there had been no admission on the part of respondent No.3 regarding the admission of relationship of tenant and land lord and also admission regarding non-payment of rent as obvious in the statement of respondent No.3. Learned Additional District Judge, Jhang, also has committed an error while holding that since the suit for specific performance of agreement is pending in between the parties and ejectment petition was filed afterwards, therefore, application filed by the petitioner was not maintainable. Both the courts below have committed serious error while appreciating the documents on record. It is settled principle that mere agreement to sell does not create any title. In this regard reliance is placed on the case law reported as 'Muhammad Hanif Abbasi v. Imran Khan Niazi and others' (PLD 2018 Supreme Court 189), 'Muhammad Ibrahim and 44 others v. Fateh Ali and 30 others' (2005 SCMR 1061 ),`Mst. Rasheeda Begum and others v.
Muhammad Yousaf and others' (2002 SCMR 1089 ) and 'Hayat Muhammad and 8 others v. Tajuddin and another' (1994 SCMR 1188). The payment of alleged agreement to sell is yet to be proved. Admission in Ex.R-1 regarding relationship of land lord and tenant F between the parties is established one. Admission of respondent No.3 regarding his default for payment of rent is also admitted one.
9. In view of what has been discussed above, instant writ petition is accepted, orders of both the courts below are set aside and application filed, by petitioner for ejectment is allowed. Respondent No.3 is directed to deposit rent @ Rs.1000/- per month from June 2010 till its eviction from the premises with the enhancement of 10% annual increase. Respondent No.3 is directed to vacate the premises within three months from today .
10. As far as connected C.R. No.2186 of 2016 is concerned, learned trial court in suit for specific performance of the agreement regarding property in question filed by respondent, granted interim injunction vide order dated 12.10.2015 restraining the petitioner to interfere into possession of the suit land and to further alienate the same.
Feeling aggrieved of the said order , petitioner filed an appeal before learned Additional District Judge, which was also dismissed vide judgment dated 14.01.2016. Both the courts below relied upon the agreement to sell dated 18.06.1998 and subsequent agreement to sell dated 03.11.1998. Writ petition filed by the petitioner has been accepted and orders of learned Special Judge (Rent) and, learned Additional District Judge, have been set aside and respondent No.3 (in writ petition) has been directed to vacate the premises within three months from today . In view of the decision of W.P.No.39842/20 16, the instant C.R. No.2186 of 2016 is allowed. The parties shall follow the directions mentioned above. No order as to costs.