' This petition for a writ of certiorari is against the concurrent judgments of the Courts below maintaining petitioner's eviction from the tenanted premises. It arises in the following circumstances: ' Muhammad Aslam purchased house bearing Survey No, SE.IV-45-S-8, Melaram Park, Abdul Karim Road, Qila .Gujjar Singh, Lahore a portion of which is in occupation of Ch. Ghulam Mohy-ud-Din, Advocate, writ petitioner, from Mst. Zubeda Begum, its previous owner, vide registered sale-deed, dated 17-4-1978. After having posted the tenant with intimation of transfer through a notice under section 13-A of the Rent Ordinance, ejectment petition seeking eviction of the tenant/ occupant on grounds of default in payment of rent and personal need, was moved by the owner in the Court of Rent Controller Urban Area, Lahore. Tenant appeared and opposed the petition. Defence in the written statement, apart from several preliminary objections was that "tilt: real owner of the property in question a portion of which is in possession of the respondent entered into an agreement to sell whole of the property bearing No, 8, Melaram Park, Abdul Karim Road, Qila Gujjar Singh, Lahore in favour of the respondent for a lawful and adequate consideration of Rs,1,31,000 out of which she received Rs,88,000 as earnest money on 23-9-1977 and since then the respondent is in possession of the premises in question in his own right by virtue of the principles of a provisions of section 53-A of the Transfer of Property Act. On 23-9-1977, the previous owner of House No, 8, Melaram Park, Abdul Karim Road, Qila Gujjar Singh, Lahore, executed a receipt in favour of the respondent. Therefore, the ejectment petition is not competent and cannot succeed." However, it was admitted that prior to the execution of the alleged receipt, the defendant was in possession of the property as a tenant holding under Mst. Zubeda Begum. Possession thus was sought to be protected under the principle of law enacted in section 53-A of the Transfer of Property Act. Rent Controller on pleadings framed following issues:-
(1) Whether the relationship of landlord and tenant exists between the parties? O.P.P.
(2) Relief.
' Parties produced evidence. Rent Controller examined the evidence, heard the parties and then found the issue in favour of the landlord. Since the payment of rent was not pleaded and default stood admitted, without making any further inquiry under section 13 of the Rent Ordinance, Rent Controller, vide order, dated 20-11-1980 passed an order of eviction. Order, dated 20-11-1980 was appealed against in the Court of District Judge, Lahore who transferred the appeal to the file of learned Additional District Judge, Lahore. Later learned Judge, vide order, dated 12-5-1982 endorsed the findings of the Rent Controller. Thus eviction order was maintained in appeal. Having not succeeded on the defence presented, constitutional jurisdiction has been invoked. Petition was admitted*to regular hearing on 21-6-1982 and actual eviction was stayed.
2. I have heard learned counsel for the parties at length and examined the evidence also. Before attending to and taking up the points raised in support of writ petition, I deem it necessary to mention that the petitioner instituted a civil suit for cancellation of registered deed, dated 17-4-1978 executed by Mst. Zubeda Begum in favour of Muhammad Aslam. This civil suit was dismissed for non-deposit of process fee by the civil Court on 6-1-1980. Civil suit again was filed for the same relief which also was allowed to be dismissed on 8-6-1982 for making default in appearance under Order IX, rule 8, C.P.C. Yet another civil suit covering the same relief was filed which too was dismissed on 20-10-1982 by the civil Court on account of non-prosecution. At present, admittedly, neither a suit for declaration nor one seeking specific performance of the alleged agreement to sell is pending before any Court of competent jurisdiction. Learned counsel for the petitioner stated that since there was an agreement to sell executed by the previous owner of the property in favour of Ch. Ghulam Mohy-ud-Din, Advocate, the eviction proceedings could not be continued as the possession was fully protected under section 53-A of the Transfer of Property Act, 1882. The Courts below have misread the evidence in finding against the tenant in occupation qua genuineness/correctness of the sale agreement. Learned counsel for the respondent, however, vehemently opposed the petition and stated that the Courts below after thorough examination of the evidence adduced in support of the alleged agreement, have concurrently found against the writ petitioner. He relied on a rule of law laid down by their Lordships of the Supreme Court in Muhammad Sharif and another v. Muhammad Afzal Sohail and others PLD 1981 SC 246 to contend that in such circumstances, equitable constitutional jurisdiction of this Court was not available to the petitioner. In case, there was any truth in the defence asserted, proper course for the petitioner was to institute a civil suit for specific performance of an agreement to sell. Till such time that such a suit was filed, decree passed and sale-deed executed in favour of the petitioner, respondent cannot be divested of his legal title to the property which he obtained through registered sale- deed, dated 17-4-1978. It was also submitted that the relationship of landlord and tenant came into being automatically when the property in dispute was transferred from its previous owner to the respondent. It was not open to the tenant in occupation of the premises to question the right of the respondent to proceed against him in eviction proceedings before competent forums. There was no misreading of record. Concurrently concluded finding of fact was not open to judicial review in constitutional jurisdiction.
3. I have duly attended to the submissions advanced in support of and against, by the learned counsel for the parties. it is admitted that the petitioner prior to the alleged agreement, was in possession as a tenant paying monthly rent to Mst. Zubeda Begum, its previous owner. Sale of the property by Mst. Zubeda Begum to Muhammad Aslam respondent is evidenced by a registered deed, dated 17-4-1978. This deed completely divested the title of Mst. Zubeda Begum and vested the same in the transferee i.e, Muhammad Aslam. The transfer clothed him with full rights to proceed against the occupant/tenant. It is also in evidence that a notice under section 13-A intimating the transfer of ownership was served. This was all that was required of a new owner.
' Principal defence raised based on an agreement to sell has been negative by the Courts below.
Evidence produced in support of the plea raised was examined and in the result, the finding has gone against the writ petitioner. Plaintiff (petitioner) in three successive attempts, failed before the civil Court. Once, the suit was dismissed as he did not deposit the process fee. On two further occasions, the suit was dismissed for non-prosecution under Order IX, rule 8, C.P.C. Last order by the civil Court was passed on 20-10-1982. Petitioner has not taken any step to get the sale agreement specifically enforced through a civil Court. Agreement to sell, vide section 54 of the Transfer of Property Act does not per se create any interest. It only gives a right to the promise to enforce the agreement through a Court of law in case of refusal by the promisor to fulfill his part of agreement. Till such time A that a decree in a suit for specific performance is passed and in compliance thereto deed of sale executed, no title vests in the promises. In the instant case as is evident from the facts narrated above, no suit for specific performance till today has been filed.
Suits for declaration claiming cancellation of the sale-deed, dated 17-4-1978 were filed and then were got dismissed either on account of failing to deposit the process fee or non-appearance. This gives a hint as to the attitude of the petitioner who was making deliberate attempts to prolong his stay in the premises on the basis of an alleged agreement of sale in his favour. Admittedly from the date of purchase i.e, 17-4-1978, not a single penny has been paid to the owner landlord by its occupant i.e, writ-petitioner. On frivolous and flimsy grounds, the eviction order passed was being thwarted. Be that as it may, the Courts below after attending to every bit of oral evidence adduced, have answered adverse finding on agreement to sell. Learned counsel appearing for the petitioner has failed to point out any misreading or non-reading of the evidence adduced. He did not deny the statement of law that the proper remedy for the petitioner in such circumstances was to institute suit for specific performance. Constitutional jurisdiction has been improperly invoked to assail findings of fact concurrently concluded by the two Courts. It is not denied that the Rent Controller had jurisdiction to decide the question of relationship of landlord and tenant and in that contest to examine the agreement to sell also. Findings of Rent Controller as already stated have met with the approval by the Court of appeal. High Court in its constitutional jurisdiction is not to assume the role of a Court of appeal in such matters when facts have been properly appreciated in the light of law applicable. There is no legal error committed by the Courts below in arriving at a finding against the writ-petitioner. I, therefore, find it difficult to agree with the contentions raised in support of writ petition. Writ petition, has no force, and is dismissed with Rs,1,000 as costs. Copy of this order be sent without delay to the learned Rent Controller relevant urban area so as to proceed further in execution.