MUHAMMAD ISHAQUE Versus MUHAMMAD SIDDIQUE

This appeal is directed against the judgment dated 11‑5‑1968, passed by the learned District Judge, Mianwali, whereby the appeal of the respondent was accepted and the ejectment application filed by the appellant against the respondent was dismissed.

2. The facts of the case are that the appellant Muhammad Ishaq filed an ejectment application under section 13 of the West Pakistan Rent Restric tion Ordinance, 1959, against the respondent, Muhammad Siddiq, in respect of shop No. 17, situated in municipal limits of Kallerkot, District Mianwali. The respondent denied the relationship of landlord and tenant between the parties. He also challenged the validity of the notice served upon him by the appellant. Necessary issues with regard to the relationship of landlord and tenant, and validity of the notice, were framed by the learned Rent Controller on the ba.is of the pleadings of the parties. He decided both the issues in favour of the appellant and, therefore, directed the respondent to deposit tentative rent at the rate of Rs. 15. with effect from 16‑9‑1966 to 16‑2‑1968, before 21st of May 1968, and also to deposit future rent before the 15th of every month.

3. This order was challenged in appeal by the respondent before the learned District Judge, Mianwali, who accepted the same by the impugned order. The appellant has now come up to the High Court and has challenged the validity of the said order.

4. The facts of the case would show that the property in question was initially transferred in favour of one Mst. Shirin Begum and after her death it devolved upon Mst. Ramzan Begum and Mst Aziz Begum, being her legal representatives. It was so decided by the D. S. C. concerned on 27‑1‑1961. They, however, sold away the property on 16‑9‑66, to the appellant Muhammad Ishaq, through registered sale deed Exh. P.

1. It is also admitted by the parties that prior to the tale in favour of the appellant both the said ladies agreed to sell the property in question to the respondent by means of an agreement deed. Since the property was not actually sold in favour of the respondent, therefore he filed a suit for specific performance of the agreement which was decreed in his favour vide Exh. R. 1. by the learned Civil Judge, Bhakkar on 14‑7‑1967. The decree was passed on the basis of the compromise effected between the parties, according to which if the respondent wanted to get the property transferred in his favour, then he was to pay Rs. 100 morn to the said ladies, otherwise he was held entitled to the refund of Rs. 900 which he had paid as the sale price of the property to Mst. Aziz Begum and Ramzan Begum. The respondent who is present in the Court in person has admitted before me that he has already received the amount of Rs. 900, in compliance with the decree passed in his favour.

5. The learned District Judge accepted the appeal of the respondent on the ground that since a decree for specific performance of the agreement with regard to sale of the property in question had been passed in favour of the respondent, therefore, question of occupying the shop in question by the respondent as tenant did not arise. He further observed that in view of the principle laid down in section 53‑A of the Transfer of Property Act, possession of the respondent over the shop would be that of an owner.

6. This view of the learned District Judge is apparently erroneous According to la .v a decree for specific performance only declares the right of the decree‑holder to have the property transferred in his favour covered by the, decree and so long as the sale deed is not executed in favour of the' decree‑holder by the judgment‑debtor or by the Court, the title of the] property remains vested in the judgment‑debtor. This point was considered in Hakim Inayarallah v Khalil Ahmad Khan and another A I R 1938 All. 432 and Abdul Majid v. Nizam Din and another P L D 1959 Lah. 273 and the view taken above was affirmed. According to law unless the title in the immovable property of the kind as involved in the present cast is transferred by means of a registered sale deed, it cannot be l deemed to have been transferred irrespective of the fact that an agreement to sell has been executed and a decree for its specific performance has also been passed. The purpose of the decree is to get the sale deed executed Sol accordance with the conditions mentioned therein, and so long as it is not executed, the title in the property will vest in the judgment‑debtor.

7. In this view of the matter the judgment of the lower appellate Court cannot be maintained and the same is hereby set aside.

8. There is yet another aspect of the case which needs consideration. The respondent, who is present in person, has made an application to this Court, which has been placed on the file stating therein that since 13‑12‑1968, he has not been in possession of the shop in question. He has stated that he by a registered letter dated 13‑4‑1969, informed the appellant that he bad vacated the shop in question, therefore, he should occupy the same. He has shown me a post‑card sent to the appellant under registered cover acknowledg ment due, which was refused to be received by him and ultimately was received back by the respondent. Its contents show that such intimation was conveyed to the appellant by the respondent. The appellant, on the other hand, has filed reply to this application and has also sworn affidavit to the effect that the respondent never vacated the shop and has always been in possession thereof. According to him he is still in possession of the property in dispute. This matter being disputed one cannot be resolved in the present proceedings as it is not possible to hold enquiry in this regard. The necessary inquiry, if so warranted by law in the circumstances of the case, will be made by the lower Court who would see the effect of the vacation of the shop in question by the respondent if it is found to be correct.

9. Since the impugned order dated 11‑5‑1968, passed by the learned District Judge, Mianwali, has been found to be non‑maintainable in law and, as such, has been set aside, therefore, the appeal is hereby accepted without any order as to costs and the case is remitted to the learned District Judge, Mianwali for deciding the appeal afresh in accordance with law and after hearing the parties which will be deemed to be still pending.

K. B. A. Appeal accepted: Case remanded.