' This writ petition is directed against a judgment dated 13th October, 1980 of the learned Additional District Judge, Lahore, whereby he upheld the order and decree of the learned Rent Controller, Lahore, dated 17th July, 1979, by which the learned Rent Controller had accepted the eviction petition held by Abdul Ghani respondent and directed the petitioner to vacate Quarter No, 70, Block No, 8-B, Township Kot Lakhpat, Lahore, within a period of thirty days.
2. Brief facts of the case are that respondent Abdul Ghani filed an ejectment petition under section 13 of the Rent Rehabilitation Ordinance against the petitioner on the ground of default in payment of rent with effect from January, 1974 to February, 1978 and personal need. The petitioner contested the application and asserted that the relationship of landlord and tenant did not exist between the parties and that the premises were never rented out to the petitioner by the respondent nor could the same be rented out as per conditions of allotment. He further stated that the quarter in question had been given to the petitioner by the respondent as mortgagee for Rs, 5,000 and therefore, he was not a tenant of the respondent, as such, the Rent Controller bad no jurisdiction in the matter. In support of his case the petitioner produced before the Rent Controller a receipt- cum-a memorandum of mortgage marked A.
3. On the pleadings of the parties the learned Rent Controller framed the following issues :- (1)Whether relationship of landlord and tenant exists between the parties ? C. P. A.
(2)Relief.
' After examining the evidence produced by the parties the learned Rent Controller came to the conclusion that there existed relationship of landlord and tenant between the parties and in consequence thereof he found that the petitioner did not pay rent for the period as alleged in the ejectment petition. As noticed above, petitioner's appeal before the learned Additional District Judge also failed. The petitioner has now come up before this Court in its Constitutional jurisdiction.
4. The learned counsel for the petitioner had ceased to be a tenant under respondent No, 1 after the execution of the mortgage note marked 'A' where after his possession was that of a mortgagee and not of a tenant. The learned Rent Controller excluded it from consideration on the ground that this document required registration under section 17 of Registration Act. The learned Additional District Judge did not touch at all upon this document and both the Tribunals below gave no finding as to the plea raised by the petitioner despite the fact that the petitioner had adduced evidence to establish the execution of this document. It has also been contended by the learned counsel that the petitioner continued in possession of the quarter in performance of the mortgage, therefore, the petitioner can seek protection as to his possession under section 53-A of the Transfer of Property Act irrespective of the fact that the document is not registered under the Registration Act. The plea of defence raised by the petitioner is a complete answer to the ejectment application.
This is a case of patent error of law committed by the lower Tribunals, hence falls within the scope of the Constitutional jurisdiction of this Court. In support of his submission the learned counsel has relied upon :-
(1) Hassan Abbas v. Shahid Bashir 1980 CLC 1442.
(2) Muhammad Yasin v. Zafar All NLR 1979 (Civil) B J 70.
(3) Samandar Khan v. Mst. Maqbul and other's 1974 SCMR 388.
(4) Dr. Ilyas Dobash v. Muhammad Iqbal PLD 1960 (W. P.) 1112.
(5) Nathe Khan v. Mst. Rehmat Bibi PLD 1961 (W. P.) B J 96.
(6) Ghulam Sakina v. Omar Bakhsh PLD 1964 SC 456.
(7) Bachu Bhai F. E. Dinshaw v: Commissioner of Income-tax PLD 1967 Kar.
372.
(8) Chief Land Commissioner v. Nazar Hussain 1975 SCMR 352.
5. The learned counsel for the respondent No, 1 has replied that the findings of both the lower Tribunals are findings of fact. The document relied upon is compulsorily registerable and as such not receiveable in evidence. Neither is registered nor duly stamped. According to the terms of this note nothing has been done in furtherance of the same as required by section 53-A of the Transfer of Property Act. And the instalments have been paid by respondent No, 1 for which receipts issued to him are in his possession. The allotment of the house was made by the Housing and Physical Planning Department on 13th August, 1970 which was cancelled on 25th February, 1978 and restored on 3rd January, 1979. The petitioner did never come forward to move for its restoration. The petitioner has taken inconsistent pleas and since the petitioner has admitted that he came in as a tenant so he is estopped to challenge the title of respondent No, 1 under section 116 of the Evidence Act. The document of mortgage as it stands has no sanctity whatever and the writ petition as prayed is not competent on the ground that the matter cannot be resolved within the Constitutional jurisdiction of the Court. In support of his submission the learned counsel has relied upon.
(1) Sikandar Khan v. Muhammad Amin PLD 1979 Kar.
59.
(2) Muhammad Yasin v. Zafar Ali NLR 1979 (Civil) B J 70.
(3) Kalimullah v. Amin Hazin 1976 SCMR 77.
(4) Mst. Taj Mahalla v. Mst. Quresha PLD 1967 Pesh.
290.
6. After weighing the contentions raised on both the sides this case is being confined to one point which is decisive of the matter. There is no doubt that the principle enunciated as to part performance in section 53-A of the Transfer of Property Act does protect the possession of the property of a person if that happens to be handed over in the part performance of a person happens to be already in possession, he continues in part performance thereof and where has done some act in furtherance of the contract notwithstanding that the contract required to be registered is not registered or the transfer has not been completed after the transfer is debarred from enforcing against such a person any right in respect of the property of which the transferee has taken or continues in possession other than a right expressly provided by the terms of the contract. Thus section 53-A of the Transfer of the Property Act takes an exception to section 49 of the Registration Act which provides that if a document which is compulsorily registerable is not registered then such a document does not affect any right in the property dealt with under such a document. But the difficulty in this case is that both the Tribunals have not given any finding as to the creation of the alleged mortgage. The petitioner had specifically raised a plea as to his defence to protect his possession, therefore, it was obligatory upon both the Tribunals to have gone into the question of mortgage as to whether it was in fact created or not or could be created and if so of what type and then to have proceeded in case of positive finding to see that the protection afforded by section 53-A was available to the petitioner or not. This having not been done, both the decisions cannot be regarded as with lawful authority and are liable to be set aside and the same are accordingly set aside and the case is remanded to the learned Rent Controller to give a specific finding as to the question of mortgage and its terms irrespective of the fact that the document is not registered and as to its impact if due on the relevant issue in view of section 53-A of the Transfer of Property Act and then to proceed to decide the petition for ejectment. As to the plea specifically raised about the non-existence of the relationship of landlord and tenant between the parties, the Tribunal however, is bound to attend the full plea because it is aimed at, that whether thereafter a Rent Controller can assume the jurisdiction to adjudicate upon the matter, as unless it is shown after fully inquiring into the question raised that the relationship of landlord and tenant exists at the time of filing a petition for ejectment a Tribunal such as a Rent Controller cannot conclude an ejectment petition and order ejectment thereby.
7. As the petition has been accepted only on a legal point, therefore, there will be no order as to costs.