MUHAMMAD YOUSAF vs MUNAWAR HUSSAIN and 5 others

ORDER

' SH. RIAZ AHMED, J.---Leave to appeal is sought against the judgment and order dated. 14-4-1999 whereby a learned Judge of Lahore High Court dismissed C.R. No.2621 of 1995 and S.A.O. No.203 of 1995 because the litigation in these two matters was between the same parties and related to a dispute over a shop.

2. The relevant facts are that on 19-11-1989 the petitioner Muhammad Yousuf instituted a suit for declaration that he was owner in possession of disputed shop by virtue of an agreement to sell dated 1-7-1975 executed by Haji Muhammad Bakhsh, predecessor-in-interest of respondents Nos.1 to 5 and the sale of the shop made by the aforesaid respondents in favour of respondents Nos.6 to 10 was illegal. The suit was resisted, the execution of the agreement to sell was denied and the maintainability of the suit was also challenged. It was averred that the agreement to sell was not a title deed and the suit as framed did not lie because on the question of an agreement to sell only a suit for specific performance was competent. After framing of the issues, the parties led evidence and vide judgment, dated 2-5-1995, the learned Civil Judge seized of the matter, dismissed the suit with costs. The said judgment was assailed through an appeal, which was allowed vide judgment, dated 14-11-1995. The appellant Court, however, declined the prayer of the petitioner/plaintiff that he had become owner of the disputed shop, but allowed the remaining claim holding that by virtue of section 53-A of the Transfer of Property Act, 1882 (hereinafter called the Act), the petitioner/plaintiff was entitled to remain in possession of the disputed shop. The said appellate judgment was assailed through a revision petition and it was prayed that the judgment and decree of the trial Court be restored.

3. The successor-in-interest of Muhammad Bakhsh sold the disputed shop in favour of the appellant in S.A.O. No.203 of 1995, who filed an application seeking eviction of the respondents on the grounds of default and personal need. The eviction was resisted on merits as well as on the ground of non-existence of relationship of landlord and tenant. It was pleaded that with the execution of the agreement to sell, the tenant was occupying the property by virtue of the same and in part performance of the said agreement. The learned Rent Controller vide judgment dated 2-5-1995 allowed the eviction application and directed the tenant to vacate the premises. On appeal, the order of the Rent Controller was set aside by Additional District Judge vide his judgment dated 14-11-1995 and the eviction application was ordered to be rejected. The said judgment was also challenged by virtue of the second appeal and as already stated above, the revision petition and the second appeal were disposed of by the learned Judge of the Lahore High Court vide order impugned against which leave to appeal is sought.

4. Before the Lahore High Court by placing reliance upon the judgment reported as Dr. Faqir Muhammad v, Maj. Amir Muhammad etc. (1982 SCM R 1178), Mat. Saddiqunnisa v. Khan Sahib Agha Muhammad Sultan Mirza and 8 others (PLD 1972 Kar. 103), Habibur Rehman and another v. Mst.

Wahidania and others PLD 1984 SC 424 and Hakim Ali v. Sakhi Muhammad 1996 SCM R 354, it was contended that the frame of the suit on the basis of the agreement to sell was illegal and no declaratory decree could be awarded. It was also contended that in order to avoid eviction the petitioner tenant had fabricated false and fictitious agreement to sell. On behalf of the petitioner it was contended that the judgment delivered by the Appellate Court was in consonance with law and the conclusion arrived at by the Appellate Court on the question of the execution of the agreement to sell were cogent.

5. Before proceeding further it would be necessary to examine in brief the scope of section 53-A of the Act. The said provision of law enables the transferee to protect his possession provided the conditions laid down therein are fulfilled. The said conditions are the existence of the agreement and the A transferee having been put in possession in part performance of the said agreement. In other words as rightly observed by the learned Judge of the Lahore High Court, the aforesaid provision of law is a shield and cannot be used as a sword. Judged in this background, it is obvious that the petitioner/plaintiff seeks a declaratory decree on the basis of an agreement to sell and in the same breath further declaration is sought that the sale of the disputed shop by the respondents Nos.1 to 5 in favour of the respondents Nos.6 to 10 was against his rights. In this view of the matter, the right course for the petitioner would have been to institute a suit for specific performance if at all such agreement was executed. The agreement to sell by itself cannot confer any title on the vendee because the same is not a title deed and such agreement does not confer any propriety right, and thus, it is obvious that the declaratory decree as envisaged by section 42 of the Specific Relief Act, cannot be awarded because declaration can only be given in respect of a legal right or character. The only right arising out of an agreement to sell is to seek its specific performance and in case the vendee has been put in possession, the same is protected under section 53-A of the Act. It was also urged before the Lahore High Court that the agreement to sell should be construed as sale-deed. This plea was repelled and rightly so. The agreement to sell is executed on five rupees stamp paper and being unregistered document cannot be equated with a sale-deed. Another feature of the case, which was noticed by the High Court was delay of 14 years in instituting the suit. The agreement to sell was executed in 1975 while the suit was instituted in the year 1989 and no satisfactory explanation came forth to explain the delay. It was alleged that at the time of the execution of the agreement to sell, Rs.31,000 had been paid. Strangely enough no steps were taken to get the sale-deed executed and registered, therefore, it was rightly inferred that the agreement to sell was fictitious and was fabricated with a view to avoiding eviction in proceedings under the Rent Restriction Ordinance.

6. For the foregoing reasons, we are of the view that the civil revision was rightly allowed and the restoration of the judgment and decree of the learned Civil Judge was legal and no exception can be taken to the same. In the light of the restoration of the judgment and decree of the learned Civil Judge and the petitioner having failed to prove the execution of the agreement to sell, the relationship of landlord and tenant, thus, stands established and the petitioner had contumaciously denied such relationship, therefore, this eviction was in accordance with law.

Resultantly, these petitions fail and are hereby dismissed and leave to appeal is refused.