HAJRA BAI Versus MUHAMMAD HASSAN KHAN

The present appeal arises from the order passed by the Vth Senior Civil Judge and Rent Controller, Karachi East, whereby, application filed by the appellant landlady for ejectment of the respondent on the ground of default and personal requirement has been dismissed. The case of the appellant is that she is the owner/landlady of house bearing No.164‑B, Sindhi Muslim Housing Society Malir Naqa, Karachi having purchased the same from Ahmad s/o Haji Abdullah under a registered Sale Deed dated 30‑4‑1971 and that the deceased father of the present respondent was the tenant in the said premises at that time at the monthly rent of Rs.700. The intimation of change of ownership was given to the, respondent's deceased father who promised to pay the rent. but he failed and therefore he was served with a legal notice demanding the arrears of rent. It is further contended that in consequence of the above notice he paid the arrears and also started paying monthly rent which he paid up to August, 1976 but failed to do so from September, 1976 and, therefore, a Rent Case No.1541/77 was filed which was dismissed on account of statement made by the present respondent that the said S.M.Salim, his father had died on 27‑2‑1977. Thereafter the present rent case was filed against the respondent on the ground of default in payment of rent from September, 1976 till March 1978 at the rate of Rs.700 per month. The second ground taken in the rent case is that the appellant required the premises for her personal use and occupation and that of her dependents. The respondent filed the written statement denying the above allegations and also the relationship of landlord and tenant. The case of the respondent is that one Ahmad son of Halt Abdullah was the previous landlord who entered into an agreement of sale with deceased father of the respondent through his attorney Khalid Haii Mohammad who is incidentally the son of the present appellant. The said agreement of sale is dated 8‑7‑1961 and the consideration is Rs.55,000. It is further contended that a sum of Rs.20,000 was paid to the previous owner Ahmad at the time of the execution of the sale agreement and subsequently the remaining amount of Rs.35,000 has also been paid in three instalments in the year 1962 and that the possession of the demised premises was handed over to the deceased father of the respondent in part performance of the said agreement to sell. It is categorically denied that the deceased father of the respondent or the respondent himself has ever paid any rent to the said previous owner or the present appellant. It is also the case of the respondent that ever since the agreement of sale the respondent's father always treated himself as owner of the demised premises and that their names were also entered in the record of Excise and Taxation Department as owners and they had been paying all the taxes, charges, etc. and performing all overt acts as the owners of the demised premises. In support of their respective contentions the appellant examined her son and attorney Abdullah while the respondent examined himself and the learned Rent Controller after hearing the arguments was pleased to hold that the relationship of landlord and tenant did not exist between the parties and as such the application for ejectment filed by the appellant was dismissed without giving any findings on the other issues.

I have heard learned counsel for the parties. It may be advantageous to, state here that Mr. Hussain Adil Khatri the learned counsel for the respondent has pointed out that in the instant case the present appellant after getting the sale agreement executed in her favour got the said premises mortgaged with Muslim Commercial Bank within two days and took the money. The said Bank then filed a civil suit against the present appellant which was allowed by the appellant to be decreed against her. Consequently an execution application was filed wherein also the appellant allowed the same to be decided against her and allowed the demised premises to be attached. It was only then that the present respondent came to learn about the said transaction and filed an application under section 12 of the Civil Procedure Code for setting aside the said decree which is still pending. Mr. Abdul Hameed Lakham learned counsel for the appellant has referred to the documents brought on record. The main document referred to i1 the agreement of sale dated 8‑7‑1961 executed in favour of the deceased father of present respondent. It will be advantageous to reproduce the following clauses of the said agreement:

3. That the vendor has handed over vacant possession of the property to the purchaser at the time of execution of this agreement on a monthly rental of Rs.100 payable till such time as the sale‑deed is executed to favour of the purchaser.

4. That the Vendor shall get the sale‑deed executed within the period of three months from the date of agreement.

5. That the vendor shall be responsible for all charges, claims, or liens on the property up to the date of execution of this agreement.

6. That all expenses pertaining to the registration and all charges and fees incidental thereto shall be borne by the purchases.

7. That the purchaser shall pay the balance of Rs.30,000 (Rupees thirty thousand only) to the vendor upto the time of execution of sale‑deed.

8. That the purchaser shall offer to pay the balance and get the sale completed within the period of three months and in case of his failure to do so within the stipulated time the earnest money shall be forfeited by the vendor and further sum of Rs.5,000 (Rupees five thousand only) shall be payable by the purchaser to, the vendor by way of consolidated damages along with possession of the property

9. That in case the vendor fails to get the sale completed within the stipulated time or such time as may reasonably be required through legal process or in procuring income tax clearance certificate or other requirements of law prerequisite of sale‑deed he will be liable to pay consolidated amount of Rs.5,000 (Rupees five thousand only) as damages to the purchaser and no rent for such period shall be chargeable. He has placed reliance on clause 3 specially from where he has submitted that the agreement shows that the possession was not handed over in part performance of the agreement of sale but the said S.M. Salim was inducted as tenant at the rent of Rs.100 per month. In the first instant this contention of the appellant is also belied by his plea taken in the rent case that the respondent is tenant at the rate of Rs.700 per month. Mr. Lakhani has further argued that two powers of attorney were executed in favour of the said Khalid the attorney of first owner Ahmad. First one is a general power of attorney executed on 15‑12‑1960 whereby he could sell the demised premises whereas the second one is a special power of attorney executed on 17‑7‑1967 empowering him only to sell the said premises to Muhammad Salim Khan, the deceased father of the respondent. From this he has contended that the sale in favour of the present appellant was under the first general power of attorney. On the contrary in my view after the second special power of attorney which has restricted the authority and power of the said attorney Khalid to sell the property only to Muhammad Salim, he could not have sold the same to the present appellant in 1971. Mr.Lakhani learned counsel for the appellant has also argued that entries in the Excise and Taxation Department are not the conclusive proof of title and will have no bearing in the present case. He has further contended that the protection under section 53‑A of the Transfer of Property Act is also not available to the respondent as he has been put in possession as a tenant and not by way of part performance of the agreement to sell as laid down in clause 3 of the above same. He has placed reliance on the cases of S.M. Hayat v. Commodore (Retd.) Ikramul Haq Malik and another 1984 CLC 3176; Haji Muhammad Ramzan v. Mian Jameel Shah PLD 1967 Peshawar 380; Khawaja Ammar Hussain v. Muhammad Shabbiruddin Khan PLD 1986 Karachi 74.

Repelling the above contention of the appellant Mr. Hussain Adil Khatri, learned counsel for the respondent has submitted that the only clause 3 of the agreement of sale should not be read to the exclusion of other clauses but the document should be read as a whole and the same should be interpreted accordingly. He has placed reliance specially on clauses Nos. 8 and 9 to argue that from these two clauses it can be gathered that the Vendor has to execute the sale deed within a period of three months by having obtained requisite income‑tax certificate and having complied with other formalities and further that in case the same could not be completed within the said stipulated period the said Muhammad Salim would not be liable to pay any rent. He has also referred to clause 7 to show that the purchaser had to pay the remaining Rs.30,000 upto the execution of the sale‑ deed. He has further contended that there is nothing on the record to show that the vendor or his attorney Khalid has ever obtained the necessary certificate which was a pre‑requisite for execution and registration of the sale‑deed and therefore as stipulated in the terms of the above agreement to sell, the Vendee Muhammad Salim was not liable to pay any rent and therefore he would not fall within the definition of tenant as given in section 2, clause (j) of the Sind Rented Premises Ordinance which reads as under:‑‑

"(j) "tenant" means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes‑‑

(i) any person who continues to be in possession or occupation of the premises after the termination of his tenancy; and

(ii) heirs of the tenant in possession or occupation of the premises after the death of the tenant." And Mr. Hussain Adil Khatri has also drawn my attention to receipts produced on record to show the payment of balance amount of consideration and has submitted that in spite of having received the full consideration the Vendor had failed to execute the sale‑deed and therefore he would not be liable to be penalized for the same. He has placed reliance on the case of Rashid Ahmad v. Messrs Friends Match Works PLD 1986 Karachi 258. He has also sought protection under the provisions of section 53‑A of the Transfer of Property Act and relied on the cases of Hasan Abbad v. Shahid Bashir and 5 others 1980 CLC 1442 and Haji Jan Muhammad v. Ghulam Ghous and 2 others 1976 SCMR 141. In order to support his other contention Mr. Hussain Adil Khatri has further placed reliance on a receipt executed by said Khalid the attorney of the previous owner on a Rs.2 stamp‑paper produced as Exh. O/4 acknowledging the entire amount of consideration on 18‑12‑1962 without any protest or condition. Mr. Abdul Hamid Lakhani learned counsel for the appellant has then submitted that the previous owner Ahmad had revoked the agreement in favour of the deceased father of the respondent and in order to support his above contention he has referred to the copy of the letter written by his attorney Khalid to the Chairman of the Housing Society on 31‑12‑1970. This revocation in my view will not be helpful to the appellant as this on the very face of it appears to be without notice to said Muhammad Salim as nothing on the record shows that the intimation of revocation was ever communicated to him. Be as it may, I would at this stage refrain from giving any conclusive finding with regard to the title of the parties as the same is sub judice in the civil suit and the execution application filed by Muslim Commercial Bank against the present appellant wherein the present respondent has made an application under section 12, C.P.C.. which is pending adjudication as stated by Mr. Hussain Adil Khatri the learned counsel for the respondent which fact is not denied by the appellant's Advocate. However, I would again refer to clause 9 of the said agreement which provides that no rent is to be payable by the Vendee in case the Vendor failed to execute the sale‑deed within the stipulated period. It may also be considered that the entire amount of consideration has been paid by the vendee which has been acknowledged by the attorney of the vendor without any protest and yet no steps were taken by the vendor to execute the sale‑deed. In these circumstances I am of the view that vendee Muhammad Salim or his descendant the present respondent are not liable to pay the rent and would not fall within the definition of tenant under the provisions of Sind Rented Premises Ordinance, 1979. It will also be pertinent to point out here that Khalid the said attorney of the previous landlord is the son of the present appellant and it is argued by Mr.Khatri that the whole affair is a managed one. He has further pointed out that Abdullah the attorney of the present appellant is also her son and a brother of above‑said Khalid. From the above discussion I am of the view that since the present respondent does not fall within the definition of the tenant, the relationship of landlord and tenant does not exist between the parties and the present rent application is therefore not maintainable. The appeal is therefore dismissed with no order as to costs.

H.B.T./H‑142/K Appeal dismissed.