WARD ALI KHAN vs Sheikh MURTAZA ALI and 2 others

' ABDUL HAMEED DOGAR, J.---Petitioner Wajid Ali Khan through this petition under clause (3) of Article 185 of the Constitution of Islamic Republic of Pakistan, 1973, seeks leave to appeal against the judgment, dated 2-4-2003 passed by a learned Single Judge of the Lahore High Court, Lahore, whereby his Writ Petition No,2838 of 2002 was dismissed with costs.

2. This matter has a chequered history and, briefly, stated the relevant facts are that respondent No,1 Sheikh Murtaza Ali the landlord had filed three ejectment applications against his tenants, namely, Ghulam Muhammad, Muhammad Iqbal and Khawaja Talat Saeed regarding his three shops falling in Property bearing No,75-Brandreth Road, Lahore. He succeeded in getting the tenants ejected before all forums up to this Court. Thereafter, in 1989, he filed execution applications about the implementation of the eviction orders against the said tenants. The case of the petitioner is that during the pendency of above mentioned execution proceedings, respondent No,1 vide an agreement to sell, dated 16-7-2000 agreed to sell the above said property in his favour for a total consideration of Rs,75,00,000 and accepted Rs,25,00,000 in advance as earnest money while the balance was agreed to be paid at the time of execution of the registered sale-deed. He further asserted that pursuant to the aforesaid agreement, respondent/landlord directed the tenant to deliver of the possession of the disputed property and in consequence whereof the possession was handed over to him. As per petitioner, respondent No,1 in order to extort more money from him against the terms and conditions of the agreement to sell got those pending execution proceedings before the Rent Controller started afresh on 16-3-2001. As a result whereof, petitioner filed suit for specific performance of the above said agreement to sell against respondent No,1 which is still pending adjudication before the competent Civil Court of law.

3. We have heard Mr. Hassan Ahmad Khan Kanwar learned Advocate Supreme Court for the petitioner and have gone through the record and the proceedings of the case in minute particulars.

4. Mr. Hassan Ahmad Khan Kanwar learned Advocate Supreme Court for the petitioner, mainly contended that the impugned order is not sustainable in law and is liable to be set aside.

According to him, the Rent Controller has got no jurisdiction to review its own order in view of section 14 of the West Pakistan Urban Rent Restrictions Ordinance, 1959, but can only correct clerical mistake. He next contended that it was in pursuance of the agreement to sell, he was handed over the vacant possession of suit property, as such, became its bona fide purchaser and for its declaration, the suit for specific performance is still pending adjudication. Thus, it cannot be said that the petitioner has got no' locus standi in the matter.

5. Admittedly, the shops in question were given on rent to the above mentioned tenants by respondent No,1 the landlord, who succeeded in getting the order of their eviction by litigating up to this Court. While execution proceedings were pending persons, namely, Muhammad Azam and Jawad Fazil Anwar encroached upon upper portion of the building bearing No,75-Brandreth Road, Lahore, in connivance with the tenants and claimed their possession over the eastern and western shops and filed objection petitions which were rejected by the trial Court vide order, dated 3-3- 2001.

6. It was thereafter the petitioner figured in for the first time and filed objection petitions in the above said execution proceedings on the basis of aforesaid agreement to sell at the instance of the tenants. He at the same time filed suit for specific performance of contract on 28-3-2001 against respondent No,1 which is yet pending adjudication.

7. Since the execution of the above said agreement to sell was strongly and vehemently denied by respondent No, 1/landlord as such, the burden to prove its validity and authenticity rests with the petitioner which is still subjudice before the Civil Court of law.

8. It is well-settled principle of law that mere agreement to sell does not confer any right of ownership upon any person, therefore, the petitioner cannot claim the protection under section 53- A of the Transfer of Property Act, 1982. This Court in the case of Muhammad Sarwar v. Muhammad Shafi (1986 SCM R 1638) while dealing with identical question of fact and law, has observed at (a) and (b) of page 1640 under: "It is well-settled that an order of ejectment can be executed against a person having come into possession of subject property through the tenant. Be that as it may the respondent having obtained an order of eviction from competent forums was not required to seek the relief of possession afresh in the suit filed by him on the plea that the petitioner was in occupation of the same house through the original tenant".

9. Irrespective of the above, the petitioner has been non-suited by all the forums below, thus their being concurrent findings recorded against him, we do not find any justification to interfere with the same which are accordingly maintained.

10. Consequently, the petition being devoid of force is dismissed and leave to appeal refused.