appellant and passed summary ejectment order under section 13 (6) on the ground that the appellant had failed to furnish security for arrears of rent in compliance with his order dated 25-5- 74.
2. The facts of the case are that ejectment of the appellant was sought by the respondents on the ground of default in payment of rent, personal need and damaging the property in dispute. The appellant came forward before the Rent Controller with a plea that after the tenancy started one of the respondents, namely, Nawaz Nazir Hussain executed an agreement to sell the property in dispute in favour of the appellant agreeing to sell the property for Rs. 4500 and received Rs. 3000 in advance and thus no relationship of landlord and tenant existed between. The parties. The learned Rent Controller framed an issue on the point and some adjournments were given for evidence, but on 21-3-73 which was also the date for evidence, the learned Rent Controller recorded the statement of the appellant and observing that there was need of the production of evidence adjourned the case for argument. After hearing arguments be without deciding the point whether an agreement to sell had been executed by respondent No. 1 in favour of the appellant decided that even if it be admitted that such an agreement had been executed it did not put to an end the relationship of landlord and tenant which had come into existence prior to that. He, therefore, found that relationship of landlord and tenant existed between the parties. He directed the appellant to deposit arrears of rent and future monthly rent for the period from 1-3-72 to 31-3-74 amounting to Rs. 550 by 15th of May 1974 and to continue to deposit future monthly rent with effect from 1-4-74 before the 14th day of every succeeding month.
3. It has been argued by the learned counsel for the appellant that the learned Rent Controller could not give a finding that relationship of landlord and tenant existed and could not direct the appellant to deposit the arrears of rent and future monthly rent, without recording a decision on the fact whether there was an agreement to sell or not. He has also said that the learned Rent Controller has wrongly held that even if it be admitted that agreement to sell was executed by one of the appellants, the relationship of landlord and tenant still exists. On the other hand, learned counsel for the respondent has argued that the order of the learned Rent Controller was quite legal and the appellant was rightly directed to deposit arrears of rent and future monthly rent. Learned counsel for the appellant has said that under section 53-A of the Transfer of Property Act the terms and conditions of the agreement to sell would prevail and the terms and conditions of the tenancy would not apply. For ready reference section 53-A of Transfer of Property Act is reproduced as under:- "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 continue the transfer can be ascertained with reasonable certainty, 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, 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 transferer or any person claiming under him shall be debarred from enforcing against the transferee and person claiming under him 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: Provided that nothing in this section shall affect the right of a trans--feree for consideration who has no notice of the contract or of the part' performance thereof."
"Learned counsel for the appellant has relied upon Annamalai Goundan v. Venkatasami (AIR 1959 Mad. 354), PLD 1971 SC 114 and Mst. Ghulam Sakina v. Umar Bakhsh and another (PLD 1971 SC 456). The observations made in the first mentioned: authority are- "The conditions laid down in section 53-A of the Transfere of Property Act are fulfilled even though a contract to sell alone was obtained. The moment possession is taken or continues under the contract of sale the original relationship of landlord and tenant cases to exist and the landlord cannot take advantage of the provisions of the Madras Cultivating Tenants Protection Act to file an application for eviction. Before any proceeding for eviction could be taken under the Madras Cultivating Tenants `protection Act, the relationship of landlord and tenant must subsist both on the date when the cause of action arose and when the application was made."
The observations made in Karimuddin Ansari v. Director Excise and Taxation, Karachi and another (PLD 1971 SC 114are:- "In any proceeding for ejectment section 53-A of the Transfer of Property Act would afford a valid defence against the ejectment.
The agreements clearly show that the Government has intended to divest itself and to vest the lands in the sub-licensees, but the latter have apparently mala fide omitted to execute the lease as they were required to do under the terms of the agreement."
The observations made in Mst. Ghulam Sakina v. Umar Bakhsh and another "But section 53-A of the Transfer of Property Act makes an exception to this and provides that where a person obtains possession of or continues to remain in possession of property under a document in writing which, though compulsorily registerable, has not been registered, then neither the person transferring the property nor any one claiming under him shall be entitled to enforce against the transferee or any person claiming under him any right in respect of that property."
It is clear from the observations made in the above cited authorities the after an agreement to sell is executed, the transferor cannot exercise any other right except a right acquired under the said agreement. All the three case arise from ejectment petitions. Learned counsel for the respondent has no been able to show that section 53-A in such cases cannot help and that the tenant is still debarred from denying the tenancy. He has, however, argued that still section 116 of the Evidence Act applies but he has not been able to cite any authority in which a contrary view might have been taken to the one taken in the authorities cited above. He has cited 1972 SCMR 30 but in the case from which the authority arose the application of section 53-A was not involved. He relies upon Bashir and others v. The Crown (PLD 1955 Lah. 70), Ahmed Shah Khan v. Abdul Barkat (PLD 1960 Dacca 107and Mst. Zainab and others -v. Fatal Dad and others (PLD 1966 Lah. 1050). All these rulings are on the point of estoppel but no question of the application of section 53-A is involved. In cases where the applicability under section 53-A is not involved, of course, a tenant cannot deny the tenancy of his landlord. So these authorities are not helpful.
4. Learned counsel for the respondent has said that only Nazir Hussain respondent No. 1 is said to have executed an agreement to sell and the allegation is not that respondent No. 2 also joined him in the execution of the agreement. Learned counsel, therefore, says that so far as respondent No. 2 is concerned, the appellant cannot deny the title and is not entitled to the protection of section 53- A. Outwardly this argument appears to be forceful but it has not been shown that respondent No. 2 owns a divided portion of the house in dispute the result being that the appellant cannot be ejected from any portion of the property in dispute. If the appellant is allowed to be ejected, the provision of section 53-A would be defeated so far as the case relates to respondent No. 1 which cannot be allowed under the law.
5. The other contention of the learned counsel for the respondent is that the agreement to sell was not produced. Therefore, it is not known what are its terms. No doubt, the appellant did not place the agreement . On record, but this thing cannot be lost sight of that the learned Rent Controller without deciding the fact if an agreement to sell was executed held that relationship of landlord and tenant existed between the parties. The appellant could have produced the agreement in his evidence if the learned Rent Controller had decided the point after recording evidence.
6. Learned counsel for the respondent has also argued that the date of the execution of the alleged agreement is said to be 23-7-1972 where as the default on the ground of which the ejectment petition was brought was alleged to have occurred from 1-3-72. therefore, the protection of section 53-A is not open to the appellant. I do not find any force in this argument. It is not necessary for the application of section 53-A that the default complained of should be for a period after the execution of agreement to sell. It applies even if the default is said to be for a period prior to the execution of such an agreement. If in reality E the agreement to sell has been executed and respondent No. 1 has received Rs. 3000, the appellant cannot be dispossessed of the property till the specific performance of the contract, or the return of the money irrespective of the fact that the default was committed before the execution of the agreement.
7. The last point argued by the learned counsel for the respondent is that the learned District Judge was justified in striking off the defence and ordering summary ejectment of the appellant for not furnishing security for arrears of rent, in compliance with his order, and that the fact that the other part 'of the order of the learned Rent Controller whereby he had directed the appellant to deposit future monthly rent before the 14th of every succeeding month is defective will not be material.
Learned counsel -for the appellant, on the other hand, has argued that since a part of the order is illegal the whole order will be treated as illegal. In this respect she relies on Khair Muhammad Nizamani v. Abdul Qaddus (PLD 1965 Kar. 367In the case from which the authority arose, that part of the order of the Rent Controller whereby he had directed the deposit of future monthly rent was incorrect. But the part of the order which directed the deposit of arrears of rent was not incorrect.
The Rent Controller reviewed and corrected the order. It was held that as the section is penal, to be on the safe side the appeal should be accepted. Learned counsel for the respondent has not been able to cite any authority to the contrary but the real question which is involved in this case is quite different. The learned District Judge directed the appellant to furnish security for arrears of rent by way of a condition to the stay order issued by him. So if the condition had not been fulfilled the stay order could have been vacated but the defence could not be struck off nor summary ejectment order could be passed. This is noteworthy that the learned Rent Controller did not pass any order of striking off the defence directing the summary ejectment of the appellant on account of the non- compliance of his order. So first of all the learned Rent Controller had to pass the order if the appellant had not deposited rent in compliance with his order on the withdrawal of the stay order by the learned District Judge. Since the learned District Judge did not withdraw the order o injunction and directly passed summary order there was no occasion for the appellant to deposit arrears of rent in compliance of the order of the ;learned Rent Controller within the period which had, if any, been left at hi disposal. An appellate authority can pass an order under section 13 (6) ,directing the deposit of arrears of rent and future monthly rent if the Rent -Controller has failed to pass such an order. But since in the present case the learned Rent Controller had passed such an order the learned District Judge could not pass any such order and the order passed by him was only a conditional stay order. On this ground the order of summary ejectment passed by the learned District Judge is not maintainable.
8. As a result of the observations made above, I accept the appeal and setting aside the order of summary ejectment and striking off the defence passed by the learned District Judge and the order of the learned Rent ,Controller whereby he found that the relationship of landlord and tenant exists between the parties remand the case to the learned Rent Controller with the direction that he shall-after giving opportunity to the parties to the produce evidence on the point whether there existed relationship of landlord and tenant between the parties record fresh order in that respect. If he comes to the conclusion that relationship and tenant exists between :the parties he shall pass a fresh order for the deposit of arrears of rent and ,future monthly rent. The lower Court record shall be sent back immediately.