1. ' NAIMUDDIN, J.--The petitioners and the respondent 3 (hereinafter jointly called the petitioners), are the successors-in-interest of Sh. Wazir Muhammad who was the owner of Property No,76/C-1, Gulberg III, Lahore, having purchased the same from Mst. Gulfarin Riaz wife of Riaz Ahmad Naik by a sale-deed dated 15-5-1972 and registered on 20-5-1972.
2. ' The petitioners' predecessor-in-interest on or about 24-8-1973, filed an application under section 13 of the West Pakistan Rent Restriction Ordinance, 1959, for eviction of the respondent 1 from the house on the ground of default in payment of the rent, alleging that she was paying rent to the predecessors-ininterest of the petitioners at the rate of Rs,1,300 per month and she paid rent in February, 1973, amounting to Rs, 7,800 for the period commencing from 15-5-1972 to 14-11-1972 and failed to pay the rent for the remaining period. Subsequently, however, the petitioners were substituted for their predecessor-in-interest.
3. ' The respondent '1 denied the existence of relationship of landlord and tenant between the parties and claimed that she entered into an agreement of sale with Mst. Gulfarin Riaz and she is in possession of. The property in part performance of the contract of sale. She denied payment of any rent to the predecessor-in-interest of the petitioners and also service of the notice. On the pleadings of the parties the Controller framed the following issues: "(1) Whether the relationship of landlord and tenant exists between the parties? OPA
(2) Whether the petition is not maintaibable under section 53-A of the Transfer of Property Act, 1882? OPR
(3) Relief."
4. ' The Controller by the order dated 25-10-1980, decided both the issues in favour of the petitioners holding that the relationship of landlord and tenant existed between the parties and section 53-A of the Transfer of Property Act was not applicable under the circumstances of the case and consequently directed to the respondent 1 to deliver vacant possession of the house to the petitioners.
5. ' Aggrieved by the order of the Controller, the respondent 1 preferred an appeal, being Miscellaneous Civil Appeal No,109 of 1980, with the District Judge, Lahore, who by the judgment dated 11-7-1981, accepted the same and dismissed the eviction application holding that she was in possession of the house in part performance of the contract of sale and section 53-A of the Transfer of Property Act helped her.
6. ' This order of the District Judge was challenged by the petitioners in Writ Petition No, 5067 of 1981 in the Lahore High Court, which was dismissed by a learned Judge by the judgment dated 2nd August, 1986, giving rise to this petition for leave to appeal.
7. ' In dismissing the writ petition the High Court relied on Rehmatullah v. Ali Muhammad (1983 SCMR 1064) and in accordance with directed the petitioners to get their title confirmed by the civil Court by bringing a regular suit and then again approach the Controller for securing eviction of the respondent 1. It may be worth mentioning that respondent 1 had filed a suit for injuntion but she has however, not filed, as stated at the Bar, any suit for specific performance of the contract in part performance whereof she claimed to be in possession of the property. We may state that we have refrained from discussing in detail the dealings of the respondent 1 with Mst. Gulfrain Riaz.
8. Concerning her agreements dated 13-1-1970 and 5-1-1971, with latter regarding the sale of the property as they could be subject matter of a suit between them.
9. We have heard Mr. Mushtaq Masood for the petitioners and Mian Nisar Ahmad for the respondents/caveators. After hearing both the counsel we grant leave and convert this petition into appeal and allow the same for reasons that it is not claimed that under the agreemnt of sale entered into by the respondent 1 with Mst. Gulfrain Riaz she was exempted from payment of rent to her and therefore on execution of registered sale-deed of the property by Gulfrain Riaz in A favour of the predecessor-in-interest of the petitioners, the ownership of the property alongwith the right to receive the rent passed to him, as provided under the provisions of section 55(6)(a) of the Transfer of Property Act and he became a landlord within the meaning of section 2(c) of the West Pakistan Urban Rent Restriction Ordinance, 1959. Accordingly, if the tenant made default in the payment of rent she became liable to eviction under the Ordinance. In Rehmatullah v. Ali Muhammad and another (1983 SCMR 1064), it was observed by Muhammad Afzal Zullah, J. That: "It has also been observed that the requirement of the relevant law contained in the Rent Restriction Ordinance is that the Rent Controller cannot decide the question of relationship of landlord and tenant against the tenant when the landlord has not been able to establish his position as landlord beyond reasonable doubt. In that situation the proper course for the Rent Controller would be to decide the issue against the landlord and advise him to first get his title established before seeking ejectment."
10. Now, in the case in hand there could not be any doubt that the petitioners' predecessor-in-interest became the owner of the property on execution by Mst.Gulfrain Riaz a registered sale-deed in his favour. Accordingly B his title to the property was clear and, therefore, the petitioners who are claiming through him could not have been directed to get their title to the property cleared by a civil Court. It may be noted that under section 54 of the Transfer of Property Act, a sale is a transfer of ownership in exchange for a price paid or promised or part-paid part-promised and in the present case it was complete on execution of the sale-deed by Mst. Gulfrain Riaz. It may also be observed that a contract for the sale of immovable property is a contract that a sale of such property shall take C place on terms settled between the parties but it does not, of itself create any interest in or charge on such property. Therefore the agreement of sale by Mst. Gulfrain Riaz in favour of the respondent and payment to her of any amount did not create any interest in or charge on the property.
11. ' As regards the protection of the possession of the respondent 1, under section 53-A of the Transfer of Property Act it may be observed that the said provisions give the right to retain possession on the ground of part performance but they do not affect the rights of a transferee for consideration who has no notice of the contract or part performance thereof. Therefore respondent 1 should have filed a suit for specific performance of the contract joining the petitioners' predecessor in-interest as a party to the suit. But this has not been done so far. Under the circumstances of this case, petitioners are entitled to succeed and accordingly the order of the Controller dated 25-10-1980 is restored and all other orders are set aside. The petitioners shall bear their own costs.