NABI BUX vs Mst. NASEEM
This matter concerns a petition for leave to appeal against a High Court judgment that ordered the eviction of the petitioner from a shop. The petitioner, while acknowledging his initial status as a tenant, resisted eviction by claiming ownership of the property based on an alleged agreement of sale and a pending suit for specific performance. The core legal question was whether the petitioner could invoke the doctrine of part performance under Section 53-A of the Transfer of Property Act 1882 to resist eviction proceedings despite the existence of a landlord-tenant relationship. The Supreme Court held that the petitioner could not rely on Section 53-A because the sale agreement itself stipulated that the petitioner was to continue paying rent until the full sale consideration was paid and the sale was registered. Consequently, the petitioner's possession remained that of a tenant, not a purchaser. The Court affirmed the principle that a mere agreement to sell, coupled with a pending suit for specific performance, does not automatically terminate the landlord-tenant relationship or bar eviction unless the agreement explicitly provides for the cessation of such relationship.
- Can a tenant resist eviction proceedings by relying on Section 53-A of the Transfer of Property Act 1882 based on an agreement to sell?
- Does the mere filing of a suit for specific performance of a sale agreement terminate the landlord-tenant relationship?
- Is a tenant in possession under an agreement to sell entitled to protection against eviction if the agreement stipulates that rent must be paid until the sale is finalized?
- Section 53-A, Transfer of Property Act 1882
ORDER
' MAMOON KAZI, J.---The petitioner is the respondent's tenant in a shop constructed on plot bearing No.CS-3760. Ward-B, Thatta Town. Thatta. The respondent field eviction application before the Senior Civil Judge and Rent Controller alleging default in payment of rent committed by the petitioner from January, 1994 to April, 1996. The premises were also claimed for personal bona fide use of the respondent.
2. The petitioner filed written statement raising objection to the maintainability of the eviction application as he claimed to be lawful owner of the property in question by virtue of a sale agreement allegedly entered into by him and the original owner of the property Muhammad Ramzan Bhutto. According to him, an amount of Rs.25,000 had already been paid towards the sale consideration and only balance was to be paid before the Registrar. However, it was alleged that the original owner had died and thereafter, his legal representatives declined to perform their part of the contract. Consequently, a case for specific performance of the contract had been filed by the petitioner which is still pending.
3. As against the said written statement, the attorney of the respondent filed his affidavit-in- evidence and also placed on record the registered sale-deed of the said property and other relevant documentary evidence. He also produced Syed Refique Ahmed Shah and Abdul Farid before the Rent Controller to give evidence.
4. The Rent Controller, upon such evidence, found that no relationship of the landlord and the tenant existed between the parties in respect of the disputed premises and, therefore, the eviction application was dismissed,
5. On appeal filed by the respondent in the High Court, the learned Judge in Chambers allowed the appeal and set aside the order passed by the Rent Controller. It was held by her that the respondents' claim of ownership had been fully established by the sale-deed executed between the parties. The petitioner was further found to be guilty of default in payment of rent and the claim of the respondent for personal bona fide need was also found to be consistent with the evidence adduced by her in this regard. Consequently the appeal was allowed and the order passed by the Rent Controller was set aside and the respondent was ordered to be evicted from the demised premises within two months from passing of the impugned judgment.
6. We have heard Mr. Hafiz Abdul Baqi, learned counsel for the petitioner and Mr. K.B. Bhutto, learned counsel for the respondent.
7. The only ground argued by Mr. Hafiz Abdul Baqi was that the learned Judge in Chambers has completely overlooked the provisions of section 53-A of the Transfer of Property Act as the petitioner was already in possession of the premises in question in pursuance of the said agreement of sale. Consequently, he could not be rejected. This contention, however, does not appear to be tenable as Mr. K.B. Bhutto, learned counsel for the respondent, has placed on record a copy of the said agreement which clearly indicates that the petitioner had agreed to pay rent to the owner of the property, the predecessor of the respondent, until full payment of the sale consideration had been rejected by the latter and the sale was registered. The said agreement further indicates that Rs.50,000 had been agreed to be paid as the total consideration for the said property out of which the respondent had paid Rs.25,000 to the owner. It, therefore, clearly follows that the petitioner was in possession of the disputed property not in pursuance of the said agreement but by virtue of his being a tenant in the said property. In the case of Iqbal and 6 others v. Mst. Rabia Bibi (PLD 1991 SC 242) plea of the tenants to stay ejectment was declined and the fact that they were tenants in possession and were holding an agreement of sale and had filed a suit for specific performance of such agreement, was held to be of no consequence. Reference may also be made in this regard to Muhammad Rafique v. Messrs Habib Bank Limited (1994 SCM R 1012).
In this case also relief under section 53-A of the Transfer of Property Act was declined to the tenant in absence of any clause in the sale agreement indicating that relationship of the landlord and the tenant had ceased to exist and the position of tenant was that of a purchaser after execution of the sale agreement. Consequently, the contention of Mr. Hafiz Abdul Baqi does not appear to be tenable.
8. As no other ground has been urged by Mr. Hafiz Abdul Baqi, the order of the learned Judge in Chambers does not appear to be open to exception under the circumstances of the case. The petition is, therefore, dismissed and leave is refused.