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Second Appeal from Order No. 363 of 1965, decided on 23rd December 1966.

S. 13 read with Transfer of Property Act (IV of 1882), S. 109 (Ejectment application) ‑ Landlord transferring ownership of property pendente lite to another with a stipulation that posses sion would be transferred after ejectment of tenant‑Held relationship of landlord and tenant had not extinguished as between vendor of property and his tenant‑Application for ejectment does not abate‑Ordinance does not operate as a complete ouster of Transfer of Property Act (IV of 1882)‑Words and phrases‑ "Ownership"‑"Possession"‑Explained.

Where in proceedings for ejectment under section 13, West Pakistan Urban Rent Restriction Ordinance, 1959, the tenant had objected that the landlord had sold the property by a regis tered sale‑deed to another, and having thus ceased to be the landlord, the petition for ejectment could not be proceeded with:

Held, that the landlord was entitled to receive rent on the date that he filed the application for ejectment against the tenant. By force of the stipulation in the conveyance to a third person, the landlord continued to be entitled to receive rent in respect of the building from the tenant and, therefore, continued to be his landlord.

Since the relationship of landlord and tenant had not been extinguished on account of the transfer of the property his appli cation for ejectment under section 13 could not be said to abate.

Ordinance VI of 1959, does not operate as a complete ouster of the principles underlying the Transfer of Property Act and is to be preferred only in case of inconsistency.

The right to possess a property is transferred to the lessee in a given case for a given period. In the present case the transferee of the property did not have a right to possess the property until the petition for ejectment was decided. The transferee of the property in dispute did not, therefore, become the landlord of the tenant since the former not being entitled to possession himself could not transfer it to the latter and without a transfer of possession the relationship of landlord and tenant could not be established.

The stipulation contained in the conveyance was a contract to the "contrary" within meaning of section 109, Transfer of Property Act, 1882, so far as the right to possession was con cerned because by it the delivery of possession had been made dependent upon the decision of the petition for eviction filed by the lessor.

Concepts of "ownership" and "possession" explained.

Salmond: Jurisprudence, (11th Edition), p. 300 and Holland: Jurisprudence, (15th Edition 1924), p. 240 ref.

Raja Mahmud Akhtar for Appellant.

Sh. Zahurul Haq for Respondent.

Date of hearing: 30th November 1966.

Ghulam Murtaza filed a petition under section 13(6) of Ordinance VI of 1959, on the 29th of July 1963, for the eviction of Muhammad Amin from Shop No. 99/1 including a room on the first floor situated near the post office in the bazar of New Pattoki, Tehsil Chunian. He claimed that the property had been transferred to him on the 6th of May 1960, by a Provisional Transfer Order by the Settlement Department and that Muhammad Amin had become his tenant by the operation of law. The fair rent of the property had been fixed at Rs. 14 per month on an application made by Muhammad Amin and was payable by the 5th of every month. It was alleged that two notices under section 30 of the Displaced Persons (Compensa tion and Rehabilitation) Act, 1958, had been duly served upon Muhammad Amin by registered post acknowledgment due on the 18th of June 1962, and 5th of September 1962. The grounds for the prayer for eviction were that‑

(a) Muhammad Amin is a defaulter having failed to pay rent from the 6th of May 1960, to the 5th of July 1963.

(b) the property was required by the petitioner for his own use in good faith, and

(c) Muhammad Amin was damaging the property and thus impairing its value.

2. The tenant contested the application. Issues were framed and the landlord led evidence. These matters need not be gone into because while the matter was still pending before the Rent Controller, Muhammad Amin moved an application stating that the property in dispute had been sold by Ghulam Murtaza pendente lite' to the Central Co‑operative Bank, Lahore, by registered sale‑deed and having thus ceased to be the landlord the petition for ejectment made by him could not be proceeded with. Ghulam Murtaza, on the other hand; claimed that although the property had been transferred to the Bank it had been stipu lated in the deed of transfer that the possession of the property shall be handed over to the vendee only after the landlord was able to obtain it from Muhammad Amin as a result of the litigation in point. It was, therefore, claimed by the landlord that the proceedings would not abate because although he was no longer the owner he continued to be the landlord of the tenant in respect of the property in dispute.

3. The learned Rent Controller accepted the plea of the tenant and holding that Ghulam Murtaza had ceased to be a landlord dismissed the application for ejectment and ordered the parties to bear their own costs.

4. Ghulam Murtaza appealed against this order which was accepted by Chaudary Muhammad Hasan Sindhar, Appellate Authority, Lahore by his order dated the 7th of May 1965, and the case was remanded to the Rent Controller for further proceed ings in accordance with law.

Hence this second appeal.

5. The only point that arises in this appeal is whether by virtue of the sale of the property in dispute during the pendency of the litigation Ghulam Murtaza, who admits to have sold it, ceased to be the landlord.

6. The document of sale, which is admitted by the parties, is on the record. It contains the following stipulation‑

This averment shows that the possession of the property in dispute was not made over to the vendee (Central Co‑operative Bank, Lahore) by Ghulam Murtaza vendor and that it was to be made over only after the vendor obtained its actual possession from Muhammad Amin as a result of his application for eviction.

7. Dealing with the concept of ownership Salmond in his Book on Jurisprudence (11th Edition) observed at page 300 that

"ownership, in its wide sense, as the relation in which a person stands to any right vested in him, is opposed to two other possible relations between a person and a right. It is opposed, in the first place, to possession. This very difficult juridical conception will be considered by us in the succeeding chapter. We shall see that the possession of a right (possession juris, Rechtsbesitz) is the de facto relation of continuing exercise and enjoyment, as opposed to the de jure relation of owner ship. A man may possess a right without owning it, as where the wrongful occupant of land makes use of a right of way or other easement appurtenant to it. Or he may own a right without possessing it. Or finally, ownership and possession may be united, as, indeed, they usually are, the de jure and the de facto relations being coexistent and coincident."

It, therefore, needs no gainsaying that ownership can be complete even without possession but that does not mean that an owner does not have the right to obtain possession.

8. As against that‑

"a lease, in this generic sense is that form of incumberance which consists in a right to the possession and use of property owned by some other person. It is the outcome of the right ful separation of ownership and possession. We have seen that possession if the continuing exercise of a right, and that although a right is normally exercised by the owner of it, it may in special cases be exercised by someone else."

Holland in his Book on Jurisprudence (15th Edn., 1924) expresses the same at page 200 by asserting that‑

"Of the right to possess, little more need be said than that it includes the 'jus vindicandi', and that it is inherent in owner ship unless expressly severed from it, as is the case when the owner has let, lent or mortgaged his property."

The passage, quoted above from the deed of conveyance, does not impinge upon any theory or provision of law and is in line with accepted concepts of ownership and possession. By virtue of the specific stipulation, referred to above, ownership of the property in dispute passed to the vendee but the possession did not. The constructive possession remained with the vendor while the actual possession was being enjoyed by the tenant.

9. The question is whether the right to give the property on lease passed with the transfer of ownership in the present case or not. All the rights and liabilities attached' to a property pass to the person to whom the property passes. The rela tionship between the landlord and tenant is, however, based on contract and would not create a privity of contract between the vendee of the property and the lessee under the vendor. It was with a view to getting over this difficulty that section 109 of the Transfer of Property Act provides for the transfer of all the rights of the lessor to the transferee‑

"If the lessor transfers the property leased, . . . . . the transferee, in the absence of a contract to the contrary, shall possess all the rights . . . . . ."

It, however, restricted the transfer to two qualifications‑

(a) that the liabilities of the lessor shall be deemed to have been transferred to the transferee only if the lessee so elects, arid

(b) that even the transfer of all the rights may be subject to restriction by a contract between the lessor and the trans feree.

In the present case, the stipulation contained in the conveyance and referred to above is "a contract to the contrary" so far as the right to possession is concerned because by it the delivery of possession has been made dependent upon the decision of the peti tion for eviction filed by the lessor.

10. The right to possess a property is transferred to the lessee in a given case for a given period. In the present case the transferee of the property does not have a right to possess the property until the petition for ejectment is decided. The transferee of the property in dispute does not, therefore, become the landlord of Muhammad Amin since the former not being entitled to possession himself cannot transfer it to the latter and without a transfer of possession the relationship of landlord and tenant cannot be established.

11. It maybe mentioned here that Ordinance VI of 1959, does not operate as a complete ouster of the principles under lying the Transfer of Property Act and is to be preferred only in case of inconsistency. The word "landlord" has been defined in Ordinance VI of 1959 as‑

"any person for the time being entitled to receive rent in respect of any building "

Ghulam Murtaza was entitled to receive rent on the date that he filed the application for ejectment against Muhammad Amin. By force of the stipulation in the conveyance, referred to above, Ghulam Murtaza continues to be entitled to receive rent in respect of the building from Muhammad Amin and, therefore, continues to be his landlord. The question whether Ghulam Murtaza is accountable to the transferee for the rent received after the date of the transfer is a separate matter.

12. Since the relationship of landlord and tenant between Ghulam Murtaza and Muhammad Amin has not been extingui shed on account of the transfer of the property in dispute by Ghulam Murtaza to the Central Co‑operative Bank, Lahore his application for ejectment under section 13 cannot be said to abate.

13. I, therefore, dismiss the appeal and uphold the order of the learned Appellate Authority remanding the case back to the Rent Controller for further proceedings in accordance with law. The parties shall now appear before the Rent Controller on the 23rd of January 1967.

A. H. Appeal dismissed.

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