Ss.15 &18‑‑Change ownership. Service of notice. Mere service of notice on existing tenants on the part of person entering into agreement of sale with owner of premises, held, by itself would not create tenancy between the parties.
Ejectment application filed by person entering into agreement of sale with original owner, prior to acquiring title in respect of premises in question through registered sale‑deed was premature and was rightly dismissed by Rent Controller.
Unless and until] such a sale‑deed was actually brought into existence by act of parties, party entering into such contract could not be said to have acquired ownership over that property.
1990 C L C 588
[Karachi]
Before Qaiser Ahmed Hamedi, J
MUHAMMAD ASHRAF MAGS1‑‑Appellant
versus
MUBARAK ALI‑‑Respondent
First Rent Appeals Nos.l l l l to 1117 of 1987, decided on 23rd August, 1989.
(a) Sind Rented Premises Ordinance (XVII of 1979)‑‑
‑‑‑S. 2(f)‑‑‑Term `landlord', scope of‑‑‑Definition of "landlord" being wide enough to include a person for the time being authorised or entitled to receive rent it was not necessary for a person claiming rent, to be owner of rented property.
(b) Transfer of Property Act (IV of 1882)‑‑
S.54‑‑‑Contract of sale‑‑‑ Contract of sale, by itself would not create any interest in or charge on property, but it would give rise to an obligation limiting rights of owner.
Where agreement of sale clearly showed that it did not pass a valid title to intended vendee, such vendee would get only a right to compel other party (vendor) to execute a sale‑deed in respect of property in question.
Unless and until] such a sale‑deed was actually brought into existence by act of parties, party entering into such contract could not be said to have acquired ownership over that property.
T.V. Kochuvareed and another v. P. Mariappa Gounder and others AIR 1954 Trav.‑Co. 10 and Khawaja Ammar Hussain v. Muhammad Shabbiruddin Khan PLD 1986 Kar. 74.
(c) Sind Rented Premises Ordinance (XVII of 1979)‑‑
‑‑‑Ss. 15 & 18‑‑‑Change in ownership‑‑‑Service of notice‑‑‑Mere service of notice on existing tenants on the part of person entering into agreement of sale with owner of premises, held, by itself would not create tenancy between the parties.
Ejectment application filed by person entering into agreement of sale with original owner, prior to acquiring title in respect of premises in question through registered sale‑deed was premature and was rightly dismissed by Rent Controller.
Manohar Lal for Appellant.
Vazir Ali for Respondent.
Date of hearing: 16th August, 1989.
JUDGMENT
Since common question of law is involved in all the above appeals, they are being disposed of by a consolidated judgment.
2. The question that has been raised in 'thcse appeals filed under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) relates to the effect of agreement of sale executed in favour of the appellant by the previous owner in respect of tenants already in occupation of a building.
3. The building constructed on Survey No. 368, Bihar Colony, Karachi, originally belonged to one Oamar Ali. The respondents are in occupation of different tenants of this building as tenant. On 19‑11‑1984 the said Qamar Ali agreed to sell this building to the appellant for a consideration of Rs.90,000 who executed such agreement on receipt of Rs.60,000 as earnest money. The said Qamar Ali agreed to execute registered sale‑deed before 30th April, 1985, after receiving the balance of Rs.30,000. On 12‑12‑1984, the appellant served the respondent with a notice under section 18 of the Ordinance, calling upon each of them separately to pay him the rent due. The failure of the respondents to meet with this demand of the appellant led the parties into this litigation. The cases proceeded before Ist Senior Civil Judge and Rent Controller (Soutli) Karachi, who vide order dated 25‑10‑987, dismissed all the applications for ejectment filed by the appellant, giving rise to present appeals.
4. 1 have heard Mr. Manohar Lai, learned counsel for appellant and Mr. Vazir Ali, learned counsel for respondents.
5. The term `landlord' as defined by section 2 (f) of the Ordinance, means the owner of the premises and includes a person who is for the time being authorised or entitled to receive rent in respect of such premises. The above definition is very wide and, it declares. a person to be the `landlord', who is for the time being authorised or entitled to .receive rent. It is, therefore, not necessary for a person claiming rent to be the owner of the property. The appellant has, however, claimed rent from the respondent on the basis of ownership and in such a situation he had to satisfy the Rent Controller that he is entitled to receive rent. The appellant has tried to prove his status on the basis of agreement of sale (Ex.A/4). Section 54 of the Transfer of Property Act, 1882, defines a `sale' and a `contract for sale'. A `contract to sell' does not create any interest in, or charge on, the property, but it gives rise to an obligation which limits the rights of the owner. The scope of section 54 of the Transfer of Property Act, 1882, was B examined in T.V. Kochuvareed and another v. P. Mariappa Gounder and others, reported in A.I.R. 1954 Travancore‑Cochin 10, and it was observed:‑
"This position is made clear by the last clause to S.54, T.P. Act where it is stated that a contract for sale of immovable properties does not, of itself create any interest in or charge on such properties. 1n this respect the Indian Law is different from the English Law which recognises an equitable estate in favour of a party who has entered into a contract for the sale of immovable property. Under the Indian Law such a person gets only a right to compel the other party to execute a sale‑deed in respect of the property and unless and until such a sale‑deed is actually brought into existence by act of parties or under a decree of Court, the party who has contracted for the purchase cannot be said to have acquired an ownership over the property. The plaintiff in this case not having acquired any such ownership his claim for recovery of mesne profits in respect of the suit properties from the defendants in the case is clearly unsustainable. In this view of the matter the question as to what would be the correct rate of mesne profits due in respect of the suit properties does not arise for consideration."
6. In the case of Khawaja Ammar Hussain v. Muhammad Shabbiruddin Khan, reported in P L D 1980 Karachi 74, it was held that a contract of sale by itself would not create any interest in or charge on such property. At page 79, it was observed:‑
"I, therefore, hold that by entering into the agreement of sale; the respondent did not acquire any title to the property nor does the doctrine of part performance as contained in section 53‑A of the Transfer of Property Act apply to the facts and circumstances of this case:'
7. The sale of immovable property of value of rupees one hundred and upwards could be made only by registered instrument. The clauses of agreement of sale (ExA/4), if read together make it abundantly clear that it did not pass a valid title to the appellant. Under the law such a person gets only a right to compel the other party to execute a sale‑deed in respect of the property and unless and until such a sale‑decd is actually brought into existence by the act ofparties, the party who has entered into such contract cannot be said to have acquired an ownership over the property.
8. The service of notice under section 18 of the Ordinance, by itself does) not create tenancy between the parties. The appellant had acquired title on 1 5‑6‑1985, when a registered sale‑deed was executed. The applications for, ejectment which were filed on the basis of notice under section 18 of the, Ordinance, dated 12‑12‑1984, were thus premature, and were rightly dismissed by the learned Rent Controller.
9. For the aforesaid reasons, I see no merits in these appeals which are accordingly dismissed with no order as to costs Appeals dismissed.
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