IQBA Versus RABIA BIBI

1. MUHAMMAD AFZAL ZULLAH, C.J .‑‑‑This appeal by a tenant through leave of the Court is directed against the dismissal by the High Court of his First Appeal from an order of ejectment on the grounds of default and personal requirement. The facts and points noted for grant of leave to appeal are as follows:‑‑

2. "The property in dispute is a shop situate in Saddar Bazar of Multan Cantt. Appellant No.1 and one Kale Khan, predecessor‑in‑interest of respondents Nos.2 to 7 were inducted into the shop by the husband of the respondent No.1 (landlord) as his tenants. After the death of her husband, respondent No.1 allegedly executed an agreement to sell in favour of appellant No.1 and Kale Khan. Under the agreement the price of the shop was fixed as Rs.15,000 and respondent No.1 received R00,000 at the time of execution of the deed. It was stated in the agreement:‑‑

3. Subsequently, respondent No.1 filed an application for the ejectment of the appellants on the ground of default in the payment of rent and personal need. The appellants denied that the relationship of landlord and tenant existed between the parties. Consequently, the learned Rent Controller framed a preliminary issue to that effect.

4. The appellants on their part filed a suit for the specific performance of the agreement. 'Respondent No.1 denied that she had entered into any agreement for sale of the house and described the deed as a forgery. The document was referred to the Finger Print Bureau of the Punjab Police. An expert reported that the thumb‑impression on the document was that of respondent No.1.

5. In the suit filed by them, the appellants sought a temporary injunction to restrain respondent No.1 from ejecting them pendente lite. The application was' rejected by the trial Court and the matter went to the High Court which upheld the order of the trial Court in this regard.

6. After the refusal of the High Court to grant a temporary injunction to the appellants, the learned Rent Controller held that the relationship of landlord and tenant existed between the parties and directed their ejectment. From the order of the learned Rent Controller, the appellants filed an appeal before the High Court. The same having been dismissed they were granted leave to appeal for the consideration of the argument that the Controller had not recorded any finding on the question whether the agreement to sell was genuine or not. A decision on this point was. particularly important as under the said agreement the appellants had come to occupy the shop not as tenants but in their own rights after payment of a very large amount of consideration.

7. Learned counsel for the appellants has pressed the point on which leave to appeal was granted. The High Court view on this question as expressed in Para 8 of the impugned judgment was that in the previous order of the High Court, in the earlier litigation regarding temporary injunction, it was stated that the general rule, comprised in Section 54 of the Transfer of Property Act; namely, that agreement to sell does not in itself create a right or interest, applied. Since the appellants were relying. on, such an agreement, the rule enunciated by the High Court had to be‑applied and they could not stall eviction on its strength. This view was further sought to be strengthened by the following observations:

8. It appeared to be a well‑received rule inasmuch as in Allah Yar and others v. Additional District Judge and others (1984 S.C.M.R. 741) and Mian Muhammad Abdullah v. District Judge, Sahiwal and 6 others ‑(PLD 1985 Lah. 467) it was laid down unambiguously that ejectment proceedings could not be stayed or stalled on a plea that the tenant in possession holds such an agreement. Even pendency of a suit for specific performance of the agreement was held no ground to avoid eviction of the tenant by the Rent Controller. Since the plea raised in defence by the appellants was not effective, the next order to be passed was one for B eviction. Muhammad Idrees vis. Mst. Sara Begum and others (1986 SCMR 795) was an instance where straightaway ejectment was ordered on failure of such a defence."

9. In so far as it goes the aforenoted findings and view by the High Court seem to be based on good authority and the learned counsel has not been able to meet the same.

10. Be that as it may, in some recent judgments this court has taken the view that in cases like the present one, where the sale agreement or any other transaction relied upon by a tenant is seriously and bona ride disputed by the landlord, the appellant/tenant cannot be allowed to retain the possession during the litigation where he continues to deny the ownership of the landlord who had inducted him as a tenant, without any condition and/or reservation. It has been ruled that in such cases although the tenant has a right to adduce evidence and take a short time for that purpose to remain in occupation despite having set up a, hostile title which is denied by the landlord, but on the well‑known bar of estoppel in this behalf, he (the tenant) cannot be permitted to remain in occupation and right the litigation for long time‑‑even for decades. In this case it is more than a decade that the appellants have been able to keep the possession on a claim which the landlord asserts is false. Accordingly, as held in those cases in fairness to both sides, while the tenant is at liberty to prosecute the litigation, wherein he should try to establish his claim but it should not be at the cost of' landlord/owner. It should be at the cost of himself and he must vacate‑‑though of course he would be entitled to an easy and. free entry as soon as he finally succeeds in establishing his title against his own landlord. See Makhan Bano V, Haji Abdul Ghani (PLD 1984 Supreme Court 17), Allah Yar and others v. Additional District Judge. and others (1984 SCMR v. Mufti Abdul Ghani (PLD 1985 SC 1).

11. In the light of what has been stated above this appeal fails. Accordingly, it is dismissed with no order as to costs.

12. A.A./I ‑137/S Appeal dismissed.