1. ' ZAFFAR HUSSAIN MIRZA, J.--This appeal is directed against the judgment of a learned Single Judge of the High Court of Sindh, Karachi, dated 21st November, 1985, whereby the respondent's appeal was allowed and the order of ejectment passed against him was set aside.
2. ' It is common ground between the parties that respondent was inducte as a tenant in the premises in dispute, namely, Flat No,B-29, Al-Azam Squar F.B. Area, Karachi under the terms of an agreement of tenancy between t parties dated 2nd August, 1975, for a term of 11 months at a rental of Rs,240 per month.
3. ' On 11th October, 1978, the appellant instituted an ejectment application against the respondent in which two grounds were taken i.e, (i) subletting in violation of the tenancy agreement and (ii) wilful default in the payment of rent. The respondent controverted the allegation with regard to subletting and his main plea in defence was that under an agreement to sell, dated 1st February, 1978, the appellant had agreed to transfer his ownership in the property comprising the premises for a consideration of Rs,50,000, out of which he (respondent) had paid Rs,5,000 to the appellant as earnest money. The respondent contended that as a result of the aforesaid agreement, the relationship of the landlady and the tenant between the parties had come to an end, with the result that he was not under any obligation to pay the rent. The learned Rent Controller first took up the preliminary issue as to the relationship of the landlady and tenant between the parties and decided the same in favour of the appellant. Thereafter he proceeded to determine the ejectment application on merits and held that the respondent was liable to be evicted on the ground of default in the payment of rent. The issue with regard to subletting was decided against the appellant.
4. ' Being aggrieved the respondent challenged the order of his eviction in an appeal before the High Court and mainly raised the controversy on the basis of the agreement to sell, under the terms whereof according to him he had ceased to be the tenant of the appellant and with effect from the date of the said agreement continued to enjoy possession of the demised premises in the capacity of an owner by virtue of the provisions of section 53-A of the Transfer of Property Act, which recognized the equitable doctrine of rights accruing by part performance. As against that on behalf of the appellant it was urged that although the agreement to sell is not denied, the plea of rights under section 53-A of Transfer of Property Act, was not available to the respondent, as he was earlier inducted as a tenant and his possession was not continued as an owner under the terms of the said agreement, therefore, his status continued to remain that of a tenant.
5. ' Learned Single Judge referred to several decisions cited before him and enumerated the principles for the application of the doctrine of part performance in a case of tenant who has entered into an agreement for the purchase of the property comprising the demised premises and observed as under:- "Before applying section 53-A to a case the Controller should first prima facie ascertain the genuineness of the agreement to sell. He should inter alia ascertain whether the tenant is continuing in possession under the agreement of tenancy, or has been put in possession under the agreement to sell, and whether under the agreement to sell the tenant has been exempted from payment of rent. If the finding of the Controller is that under the agreement to sell exemption from payment of rent has been granted, the protection afforded under section 53-A can be ganted.
6. Another question which should not be ignored is whether the tenant is ready and willing to perform his part of the agreement."
7. ' In the light of these principles the learned Judge repelled the contention raised before him on behalf of the present appellant (landlady) in the following manner: "Applying these principles to the present case, it may be noticed that the agreement to sell contains amongst others the following two clauses: ' Clause (7) that the vendor has given possession of the flat on the date of this agreement on purely care-taker basis;
(10) that, in case purchaser fails to produce to get sale-deed duly executed and registered by the end of April, 1978, the earnest money already paid by the purchaser will be forfeited and the purchaser shall vacate and hand over peaceful possession of the said flat to the vendor on the first day of May, 1978."
8. ' From clause 7 it seems clear that in terms of agreement the respondent has delivered possession to the appellant not as a tenant, but as a caretaker. It, therefore, seems clear that the appellant was not allowed to continue with his possession as a tenant under the tenancy agreement. By this agreement to sell possession was delivered on 1-2-1978, which in law was a completely different possession given to the appellant under the agreement of tenancy. Now the possession has been given as a caretaker and not as a tenant. From these clauses it is obvious that the parties have said go-bye to the tenancy agreement, have entered into a fresh agreement and possession was delivered to the appellant under the agreement to sell. It can, therefore, be logically concluded that the appellant was not required to pay the rent to the respondent, otherwise, the possession would not have been delivered on 1-2-1978 in a different capacity. From clause 10 it is clear that the capacity of the appellant was of a care-taker and not a tenant, otherwise, in case of non- registration of the agreement, the appellant could not have been asked to vacate the premises."
9. ' Thus the learned Judge was of the view that the nature of the possession of the respondent at the time of the eviction application was different from that of a tenant and was indeed in part performance of the terms of the agreement to sell, with the result that the relationship of landlord and tenant, previously existing between the parties came to an end. Accordingly the learned Judge held that the eviction application was not maintainable for want of relationship of landlord and tenant between the parties.
10. ' Now the question as to whether the tenant was entitled to resist the eviction application on the doctrine of part performance and whether the requirements of section 53-A of the Transfer of Property Act, were satisfied in the facts of this case, has arisen and indeed can arise in an eviction application, to a limited extent as would be presently explained, namely, whether there existed or continued to exist the relationship of landlord and tenant, between the parties which initially undisputedly existed, after the intervention of the contract to transfer the immovable property on the part of the landlord. The question before the Rent Controller which is not a Court of plenary jurisdiction but a tribunal of limited jurisdiction, was not whether the transferor is debarred from enforcing against the transferee any right in respect of the property in dispute other than a right expressly provided by the terms of contract. Adjudication of such civil rights of enforcing the contract on the part of a transferor, which fall beyond the limited jurisdiction of the Rent Controller, cannot be undertaken and determined finally in ejectment proceedings. Therefore in such a case the fundamental question is whether under the contract to transfer the property, the tenancy rights were terminated, so that the Rent Controller would lack the jurisdictional foundation for passing an order of eviction against the tenant.
11. ' In the present case the crucial terms of the contract of transfer on which the decision whether the tenancy stood terminated depends have been reproduced in the quotation from the judgment of the learned Single Judges, namely, clauses 7 and 10. The learned Judge has referred to number of decisions from which he has formulated certain principles bearing upon the question whether the doctrine of part performance protected the tenant from eviction. One of the principles mentioned by the learned Judge was that the test would be whether tenant/vendee has been exempted from payment of rent under the agreement to sell. This principle has been postulated on the observations made by this Court in 1 laji Jan Muhammad v. Ghulam Ghous and others (1976 SC MR 141). In that case the plea of tenant invoking the doctrine of part performance on the ground of his continued occupation of the premises coupled with nonpayment of rent was repelled, on the ground that the agreement of sale did not exempt him from payment of rent and therefore his continued occupation of the premises in violation of the law could hardly be put forth as a defence or a step towards part performance when admittedly the petitioner had never paid the consideration.
12. ' The facts of the present case are somewhat similar. Here out of the agreed consideration of Rs,50,000, the tenant was able to prove the payment of only Rs,2,000 as acknowledged in the agreement. No other payment was proved. There was nothing in the agreement of sale exempting the tenant from payment of rent. The learned Single Judge's decision turned only on the interpretation of clause 7. The inferential conclusion drawn by the learned Judge from the language used in the said clause that the possession of the property would be on the "care-taker basis" was that the respondent's possession was not continued in the capacity of a tenant. On a careful consideration of this reasoning I have been unable to agree with the learned Judge. The language used did not lead to the conclusion logically that the respondent was not required to pay rent. It is well settled that the Court cannot read into a contract a term which does not exist there.
13. The agreement for sale dated 1st February, 1978, makes no reference to the prior agreement of tenancy so as to supersede the same by novation. Merely because the agreement used the expression that the possession of the property was given on purely care-taker basis, does not imply that the transferee was put in possession in his own right as a vendee in part performance of sale agreement.
14. ' The question is whether the term of the contract as incorporated in the clause with regard to possession being given on a care-taker basis, can be construed as possession taken in part performance of the contract to transfer immovable property as required by section 53-A. The relevant provisions of section 53-A of Transfer of Property Act are in the following terms:-- "Part performance.--Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has, performed or is willing to perform his part of the contract, then notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: ' Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
15. ' The rights of the transferee under this section are protected, inter alia, on showing that the transferee has in part performance of the contract taken possession of the property or any part thereof, or the transferee being already in possession, continues in possession in part performance of the contract. It is the latter clause which is attracted in the present case, namely that the respondent was already in possession as a tenant and he can succeed in his plea only if he satisfies the Court that his possession was continued in part performance of the contract. This obviously means that his possession under the agreement must have reference to the contract to transfer immovable property which to my mind would be the possession in the capacity of a purchaser. Possession is delivered in pursuance of a contract to transfer immovable property in view of the liability of the seller under section 55(f) of the Transfer of the Property Act. Possession given in any other capacity will have no nexus with the contract to transfer such immovable property. Therefore, possession in the capacity of the care-taker cannot be appropriated towards the contract to sell stricto sensu, for obviously it implies that the care-taker holds the possession as an agent of the person entitled to possession. Therefore on any basis the respondent could not claim that he was holding possession in his own right under the terms of the agreement of sale. It is quite clear that clause 7 is a mere recital in the agreement, which indicates that vendor did not agree to divest himself of the possessory right as an owner, otherwise the agreement would not have used the words "on purely care-taker basis". To my mind there is nothing in the agreement which shows that the possession of the respondent as tenant was converted into possession as a vendee under the terms of the agreement. At any rate clause 7 of the agreement, on which reliance has been placed, is not couched in unequivocal language to reach such a conclusion. If a vendee is already in possession of immovable property, it would be necessary that the vendor by appropriate acts and declarations converts the permissive possession of such a vendee, whether as a tenant or otherwise, into possession as a vendee. In case of a sale of immovable property which is already leased out and is in occupation of a tenant, the vendor would be required to deliver symbolic possession to the buyer by asking the tenant to attorn to the latter. There is no such unequivocal act or declaration proved in the present case. In this connection reference may be made to a recent case of this Court reported as Shamim Akhtar v. Muhammad Rashid (PLD 1989 SC 575), in which the plea of the tenant to resist ejectment on the doctrine of part performance was repelled and the following observation was made by the learned Chief Justice: "In this case there was no consideration of the question as to whether there was any stipulation in the agreement to show as to whether the continuance of possession was of a tenant or of a vendee and the High Court merely upon the premise that protection is afforded against dispossession under section 53-A of the Transfer of Property Act upon the execution of the agreement decided the issue. The High Court's reliance on this decision was not correct as it had failed to notice the important ingredients of section 53-A of the Transfer of Property Act."
16. ' Learned counsel for the respondent has relied upon Mst. Ghulam Sakina v. Umar Bakhsh and another (PLD 1964 SC 456) and Kalimuddin Ansari v. Director, Excise and Taxation (PLD 1971 SC 114) which are both irrelevant to the present controversy as the issues involved therein were totally different. He has also referred to Hassan Abbas v. Shahid Bashir and others (1980 CLC 1442) but that case has been overruled by this Court in the case of Shamim Akhtar already referred to.
17. ' For the foregoing reasons I am unable to subscribe to the conclusions arrived at by the learned Single Judge and hold that the respondent was not entitled to protect his possession and resist ejectment, under the provisions of section 53-A of the Transfer of Property Act and the relationship of landlord and tenant continued to exist between the parties even after the execution of the agreement of sale. As admittedly the respondent had failed to tender rent to the appellant the eviction order passed against him by the Rent Controller was fully justified. I would therefore, allow this appeal, set aside the judgment of the learned Single Judge of the High Court and restore the order passed by the Rent Controller. There will be no order as to costs.