' The petitioner has in the present writ petition assailed the validity of the ejectment order passed against him by the learned Rent Controller, Lahore, on 30-6-1983, as affirmed by the learned Additional District Judge, Lahore, vide his order dated 12-9-1983.
2. On 4-4-1979, respondents Nos.1 to 9 filed an application for the eviction of the petitioner from Property No,S-49-R-58 situated at Chamberlane Road, Gowalmandi, Lahore.They alleged that the petitioner was in occupation of the property as a tenant but in spite of notice he had failed to pay or tender rent. The petitioner contested the application denying the existence of relationship of landlord and tenant between the parties. According to him, the transfer order in respect of the property in dispute issued in favour of the respondents was the result of fraud and collusion and that a suit for the cancellation of the transfer order was sub juice in the Civil Court at Lahore. He also contended that no notice as required by law had been served on him and that the respondents were not entitled to claim the rent. He further pleaded that the ejectment application was bad for non-joinder of necessary party and that respondents Nos. 1 to 9 had no cause of action. The learned Rent Controller framed the following issues:-
(1) Whether the relationship of landlord and tenant exists between the parties? O.P.P.
(2) Whether no cause of action is available to the petitioners against the respondent? Q.P.R.
(3) Whether the petition is bad for non-joinder of necessary party? O.P.R.
3.The parties adduced their evidence for and against the issues. The learned Rent Controller after appraising the evidence found the issues against the petitioner. Since non-payment of rent by the petitioner was admitted, the learned Rent Controller held that no further proceed ings were called for and passed the order of ejectment against the petitioner, giving him a period of thirty days for the vacation of the property. Feeling dissatisfied, the petitioner filed an appeal which was heard by the learned Additional District Judge, Lahore. The only plea which was agitated before the learned Additional District Judge was that no notice as cone milked by section 30 of the Displaced Persons (Compensation and Rehabi Mation) Act, 1958, had been given to him. The learned Additional District Judge repelled this contention on the ground that after the repeal of the evacuee laws, the notice was no longer necessary.
4.The sole contention which has been pressed into service by the learned counsel for the petitioner in this Court is that since respondents Nos. 1 to 9 on the demise of their father to whom the property was originally transferred by the Settlement Department did not send a notice to the petitioner as required by section 13-A of the Punjab Urban Rent Restriction Ordinance, 1959, he could not be ejected on the ground of default in the payment of rent. This .contention has been controverted by the learned counsel for respondents Nos. 1 to 9 on the plea that the property was in fact transferred to respondents Nos. 1 to 9 and not their father. In support of this plea reliance is placed on the statement of Nawazish Ali, an official of the Settlement Department, examined by respondents Nos.
1 to 9 before the learned Rent Controller. He stated as AW-1 that according to the record of the Settlement Department, the transfer order of the property was issued in favour of respondents Nos.
1 to 9. The petitioner also admitted that the property had been transferred to respondents Nos.1 to 9, although according to him the transfer was maneuvered fraudulently. Since there is no evidence that the transfer order of the property was originally issued in favour of the father of respondents Nos.1 to 9, the provisions A of section 13-A of the Punjab Urban Rent Restriction Ordinance, 1959, are not attracted. Moreover, this plea was not specifically raised in the pleading filed before the Rent Controller.
5.For the foregoing reasons, I find no substance in this writ petition and dismiss the same, leaving the parties to bear their own costs.
6. At this stage, a prayer has been made on behalf of the petitioner that he may be given some time to vacate the property in dispute. The petitioner shall vacate the property in dispute and deliver its possession to respondents Nos.1 to 9 within two months from today.
Petition dismissed.
184 MLD 185 [ Karachi] Before Fakhruddin H. Shaikh, J ABDUL HAMID and 24 others--Appellants versus ALLAH NAWAZO and 2 others--Respondents Second Civil Appeal No, 191 of 1970, decided on 16th November, 1983.
(a) Sind Agriculturists Relief Act (XVII of 1879)-- - --S.10-A--Two documents executed by two parties in favour of each other regarding sale and repurchase--Both documents, held, constituted one transaction. [p. 188] A Raja Bahadur Narasingerji Gyanagerji v. Raja Panuganti Parthasaradhi Rayanim Garu AIR 1924 P C 226 rel.
(b) Sind Agriculturists Relief Act (XVII of 1879)-- ---S.10-A--Transfer of Property Act (IV of 1882), S. 58--Documents executed by parties and entries in record-of-rights in respect of survey number in dispute making transaction between parties as a mortgage and not a sale with condition to repurchase--Amount paid by appellants as sale consideration to respondents grossly inadequate and land under sale much more valuable-- Transaction, held, stood proved as a mortgage by conditional sale in circumstances.
[pp. 188, 189, 190] B, C, D, E, F & G Nathu Lal and others v. Mst. Gomti Kuar and others AIR 1940 Pr. C . 160 rel.
(c) Sind Agriculturists Relief Act (XVII of 1879)-- - --S.10-A--Whether a transaction a sale with condition of repurchase or a mortgage--Test-- Conditions mentioned in PLD 1967 Kar. 859, held, must not necessarily be proved by an agriculturist to claim benefit Flf-5.10-A--Agriculturist if successful in establishing by surrounding circumstances, by conduct of parties, by inadequacy of a sale consideration that nature of transaction was mortgage it would not be necessary for him to prove other tests. [p. 189] F Haji Allahanda and another v. Sadarangmal and another PLD 1967 Kar. 859 distinguished.
(d) Transfer of Property Act (IV of 1882)-- - --S.58 (c), proviso--Sind Agriculturists Relief Act (XVII of 1879), S.10-A--Proviso to S.58 (c), Transfer of Property Act, 1882 as to restriction of inference to be drawn in favour of a mortgagee only to cases where condition of repurchase embodied in document of ostensible sale, held, will not apply to transactions covered by S.10-A, Sind Agriculturists Relief Act, 1879. [p. 190] H Haji Allahanda and another v. Sadarangmal and another PLD 1967 Kar. 859 rel.
(e) Sind Agriculturists Relief Act (XVII of 1879)-- ---Ss.10-A & 15-A--Civil Procedure Code (V of 1908), S.100--Second appeal--Findings of two Courts below as to nature of transaction between parties based on cogent reasons and supported by irrefutable evidence--Findings not shOwn to be perverse or based on misreading of evidence or that same could not have been based on evidence on record--Inter ference declined in second appeal. [p. 190] I Abdul Majeed Khan for Appellants. Ghiyasuddin Baloch for Respondents. Date of hearing: 30th October, 1983.
' This is second appeal from the judgment of Additional District Judge, Nawabshah dated 12th March, 1970, whereby the learned Judge had dismissed the appeal of the appellants against the judgment of Civil Judge, Naushehro Feroze, dated 7th March 1969.
2. Appellants Nos. 1 to 23 are legal heirs of deceased Din Muhammad. Respondents Nos.2 and 3 are legal heirs of deceased Gagan. Respondents had filed a suit in the Court of Civil Judge, Naushero Feroze praying that they are agriculturists and that in the year 1918 respondent No,1 and deceased Gagan had executed a sale-deed in respect of Survey No, 352 situated in Deh Mada Biyani, Taluka Kandiaro, District Nawabshah in favour of Din Muhammad for Rs,240, The date of the sale-deed is 18th August, 1918. On the same date Din Muhammad deceased had also executed a deed in favour of respondent Allah Nawazo and deceased Gagan that he shall recovery the land in question to them (Allah Nawazo and Gagan) if the amount of Rs, 240 is paid to him within two yeaRs, The possession of the land was to remain with Din Muhammad Who was also allowed to appropriate the produce of the land. It was further stipulated in the second deed that if the amount of Rs,240 was not paid within two years, Din Muhammad shall not be bound to return the land to them and that he shall become sole-owner of the land.
3. The claim of the respondents in their suit was that the two transactions in fact constituted mortgage by conditional sale and that as they are agriculturists, hence they are entitled to conveyance of the land in question without payment of any amount, as the mortgage money has already been appropriated by Din Muhammad and his heirs appellants Nos.1 to 23 by produce of the land. The respondents prayed for the following reliefs in their suit before the Civil Judge: ' That the appellants be called upon to render accounts for produce of the3.1and and the mortgage. be allowed to be redeemed and a decree may be passed accordingly with cost.'
4. Appellants Nos.24 and 25 have been joined as Mst. Pari, appellant No,2, is said to have transferred her share in the disputed land to these appellants.
5. Appellants Nos.1 to 23 only contested the suit by alleging that the suit was not maintainable, that the transaction was not a mortgage but was a conditional sale, that according to the second deed dated 18-8-1928 the appellants have become full owners of the land due to failure of the respondents to pay Rs,240 within the stipulated period of two yeaRs, They had taken other pleas also upon which the following issues were framed by the trial Court:- "(1) Whether the suit is not maintainable at law?
(2) Whether the suit is time-barred?
(3) Whether the suit in present form is not maintainable and is barred under section 42 of the Specific Relief Act?
(4) Whether the court-fee stamp paid is insufficient?
(5) Whether the plaintiffs are agriculturists?
(6) Whether the transaction in favour of Haji Din Muhammad is a mortgage or a conditional sale?
(7) What should the decree be?"
6. After recording evidence of the parties the learned Civil Judge came to the conclusion that the respondents were agriculturists, that the two deeds executed between Din Muhammad of the one part and Allah Nawaz and Gagan of the other part in favour of each other constituted mortgage by conditional sale and that the respondents were entitled under section 10(A) read with section 15(A) of the Sind Agri culturists' Relief Act of 1879 (hereinafter referred to as the said Act) to a decree of redemption of the Survey No, in question. In view of this finding the suit of the respondents was decreed and it was directed that on deposit being made by the respondents of Rs,240 as 'mortgage money, the land in dispute shall be reconvened to them by the appellants. Against this judgment appeal was filed before the District Judge, Nawabshah who transferred it to Additional District Judge. The learned Additional District Judge concurred with the findings of the trial Judge and dismissed the appeal.
7. The only point stressed before this Court by the learned counsel for the appellants is that the two documents which have been produced by the respondents as Exhs. 34 and 35, dated 28-8-1918 constituted conditional sale and that by virtue of the stipulation in the second deed regarding payment of Rs,240 by the vendors (Allah Nawazo and the Gagan), having not been complied with, the sale had 'become absolute and that the respondents were not entitled to claim conveyance of the land.
8. It is not disputed that the respondents as well as the Gag an deceased, the father of respondents Nos.2 and 3 were and are agriculturists. It is, therefore, clear that the provisions of sections 10(A) and 15(A) of the said Act shall be applicable to this case and the nature of the transaction shall have to be determined with reference to the principles laid down by higher Courts from time to time in this behalf. The most important case which has been relied upon by both the parties in this connection is of Haji Allahanda and another v. Sadarangmal and another PLD 1967 Kar. 859 in which it has been held that to determine whether a transaction is a sale with the condition of repurchase or a mortgage, the following circumstances may be considered:-
(i) Whether the relationship of debtor and creditor existed between the parties before or at the time of the alleged sale;
(ii) Did the intention to create a mortgage precede the alleged sales;
(iii) Was the price paid by the purchaser fair market price;
(iv) Was the possession of the property transferred to the purchaser;
(v) Is there a covenant for the payment of interest by the purchaser;
(vi) Is the purchaser accountable to the seller for the income of the property;
(vii) Whether agreement of repurchase was made at the time of sale or some time thereafter; (the former evidencing the intention to create mortgage and the latter the intention of repurchase only); ' It has further been held in the above case that the rule prescribed by the proviso to section 58(c) of the Transfer of Property Act, as to restriction of the inference to be drawn in favour of a mortgagee only to cases where a condition of repurchase is embodied in the document of ostensible sale, will not apply to transactions covered by section 10(A) of the said Act.
9. In view of the tests laid down above it is to be seen as to how far the parties have succeeded in proving the actual nature of the transaction. Now the two transactions i.e, the sale-deed Exh.34 and the second-deed Exh.35 for conveyance of the property on payment of Rs,240 by the vendors to deceased Din Muhammad for conveyance A of the land within two years were executed on the same date. It shall, therefore, be presumed that both the documents constituted one transaction and not two. Reference in this connection may be made to the case of Raja Bahadur Narasingerji Gyanagerji v. Raja Panuganti Parthasaradhi Rayanim Garu AIR 1924 Pr.C. 226 in which two documents executed by two parties in favour of each other regarding sale and repurchase were held to constitute one transaction. It was further held that a transaction ostensibly a sale with right of repurchase in the vendor shall be mortgage by conditional sale where time fixed for repurchase was not of the essence of the contract, the price was extremely inadequate and other circumstances indicated a mortgage. It will be shown that in the present case there are other circumstances which indicate that the transaction was a mortgage by conditional sale and not a sale with condition to repurchase. In the case of Nathu Lal and others v. Mst. Gomti Kuar and others AIR 1940 Pr.C. 160 it was held that where a vendor ostensibly sells a property by executing a sale- deed and a vendee by another document agrees to re-convey the property on payment of the price thereof after the expiry of the fixed period, the transaction amounts to a mortgage by a conditional sale.
10. The most important circumstance which establishes the nature of the transaction as mortgage is the mutation in the record of rights in respect of survey number in dispute in favour of Din Muhammad, copy of which has been produced by the respondents as Exh.36. This is certified copy of the record of rights in which Survey No/ 352 was mutated in favour of Din Muhammad on 21st October, 1918. In column No,12 of this record the nature of title of Din Muhammad is described as under. It is in Sindi, translation of which will be as follows:- "Mortgage with 'possession in favour of Din Muhammad son of Jamal by Gagan son of Saleh and Allah Nawazo son of Deboro vide documents dated 18-8-1918 for Rs,240, with the condition that on payment of this amount within two years, the land shall be returned to the mortgagoRs,"
11. It is thus clear that Din Muhammad himself regarded this transaction as a mortgage and not a conditional sale. This entry in the record of rights has not been disputed by any of the appellants.
The mutation must have been effected in the record of rights at the instance of Din Muhammad himself because he was the purchaser or the mortgagee. He himself accepted his status as mortgagee before the Revenue authorities by describing himself as such in the relevant Revenue record.
12. Another important circumstance to be considered in this connection is whether there was relationship of debtor and creditor between the parties to the transaction. D.W. Abdul Hameed has admitted in his cross-examination that his father Din Muhammad used to lend money to Allah Nawazo and Gagan. He also admits that Allah Nawazo has sold his other land also in order to pay up his debts to Hindus. This is thus another circumstances in favour of the presumption that the transaction in question was mortgage and not a conditional sale.
13. Another important circumstance to be considered in this connection is adequacy of the sale consideration. The parties have produced several documents pertaining to sale of neighboring land from which it transpires that the rates of land were different. The disputed land the area of which was seven acres and 25 grunts was valued at Rs,240 by the parties. This means that the rate per acre would approximately be Rs,35, The respondents have produced certified copies of two sale-deeds as Exhs. 71 and 72 in respect of certain lands which were sold during the same period when the transaction in dispute had taken place. Exh. 72 relates to sale of 3 acres of land for Rs,458, It is dated 7th May 1923. The land is situated in Taluka Kandiyaro. From this sale-deed it would appear that the value of land in those days was more than Rs,100 per acre, This deed clearly shows that the value of the land in dispute as Rs,35 per acre was grossly inadequate. The other sale-deed Exh.71 is dated 27th January, 1944, which shows that one acre and 39 grunts of land was sold for Rs,100 in the same District. These two documents which have been produced by the appellants themselves do not prove that the amount which was paid by Din Muhammad to the respondent No,1 father of respondents Nos.2 and 3 for the disputed land was adequate. These documents establish that the disputed land which was sold for Rs,35 per acre was much more valuable than the amount which was paid by deceased Din Muhammad.
14. It may be stated that all the conditions mentioned in para. 5 above for testing the nature of a transaction must not necessarily be proved by an agriculturist to claim benefit of section 10(A) of the said Act. If such an agriculturist is successful in establishing by surrounding circumstances, by conduct of the parties, by inadequacy of a sale consideration that the nature of the transaction was mortgage, it would not be necessary for him to prove other tests which have been mentioned in the above para. The respondents have also produced several sale-deeds pertaining to the surrounding lands which prove that the land in dispute was much more valuable than the price paid by deceased Din Muhammad for it. They have produced a sale-deed Exh.40 whereby four acres and 31 grunts were sold for Rs,700, which means that the rate of land per acre would approximately be Rs,150, Other sale-deed is Exh.39, whereby 2 acres and 17 ghuntas of land were sold for Rs,400 i.e, approximately at the rate of Rs,200 per acre. Then Exh. 37 is another sale-deed, whereby the land was sold at the 'rate of Rs,85 per acre. The last sale-deed is Exh. 38, whereby irrigated land was sold for Rs,200 per acre, All these sale-deeds relate approximately to the same period when the disputed transaction had taken place and are situated in the vicinity of the disputed land. It is, therefore, proved that the amount paid by deceased Din Muhammad for this land at the rate of Rs,35 per acre was grossly inadequate which is one of the most important circumstance to establish that the transaction was a mortgage by conditional sale.
15. Mr.Abdul Majeed learned counsel for the appellants has argued'' that according to section 58(c) of the Transfer of Property Act, no transaction of conditional sale shall be deemed to be a mortgage unless the condition of mortgage is specifically embodied in the document which effects or purports to effect the sale. In this connection reference may again be made to the case of Haji Allahanda in which it has been clearly held by Noorul Arfin, J. as under:- "The rule prescribed by the proviso to section 58(c) of the Transfer of Property Act, as to restriction of the inference to be drawn in favour of a mortgagee only to cases where the condition of repurchase is embodied in the document of ostensible sale will not apply to transactions covered by section 10(A) of the Sind Agriculturists' Relief Act.
' The second proviso to section 10(A) specifically states that the section will not apply to a bona fide transferee only if such transferee held land under a registered deed executed more than 12 years before the institution of the suit.
' Section 10(A) of the Sind Agriculturists' Relief Act confers wide powers on the Court to determine the real nature of the transaction and to admit evidence outside the written documents, notwith - standing the provisions of any other law.
' The effect of section 10(A) of the Sind Agriculturists' Relief At is not, however that the inference of mortgage should necessarily be drawn in all cases where the condition of repurchase is embodied in a document executed with or after the sale-deed."
I am in respectful agreement with the above rule. In view of the overriding nature of section 10(A) of the said Act, the proviso to H section 58(c) of the Transfer of Property Act shall not be applicable to a claim set up by an agriculturist under the said Act.
In view of the above discussion I am satisfied that the finding of the two Courts below regarding the nature of the transaction, is based on cogent reasons and supported by irrefutable evidence. It has not been shown that the findings are perverse or are based on misreading of evidence or that these findings could not have been based on the evidence on record. The appeal is, therefore, dismissed with costs.