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Civil Petition No. 242 of 1981, decided on 5th July, 1982.
(From the order dated 3‑I1‑1980 of the Lahore High Court passed in Writ Petition No. 9711 of 1980).
‑ S. 13‑Landlord and tenant, relationship of‑Sale deed showing that transaction of sale completed between parties and respondent occupant (vendor) agreeing to make over actual possession of property within a period of 3 months of registration of deed and after expiry of such period respondent can continue with consent of vendee petitioner at a monthly rent of Rs.3000‑Question whether tenancy not created in such circumstances requires reconsideration‑Leave to appeal granted‑Constitution of Pakistan (1973), Art. 185(3).
Sheikh Ghias Muhammad, Senior Advocate Supreme Court assisted by Raza Hussain Shamsi, Advocate Supreme Court instructed by Syed Inayat Hussain Shah, Advocate‑on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing: 20th June, 1982.
The question that this petition raises is whether the parties stand in relation to each other as landlord and tenant. The petitioners had purchased Bugalow No. S‑69‑R‑33, Warris Road, Lahore from lust. Syeda Imtiaz Khatoon respondent for the consideration of Rs. 1,70,000 by a sale‑deed registered on 27‑1‑1975. In terms of the deed the respondent had agreed‑
"to give up actual procession of the said Bungalow No. S‑69‑R‑33 Warris Road, Lahore, in favour of the Vendees within a period of three months from the date of registration of this Sale‑Deed as mutually decided and agreed by the parties and the Vendees will enjoy the absolute right of ownership in any manner whatsoever. without interruption from any person and to their best interest and would be also entitled to charge Rs. 3,000 per month from the Vendor if she continue to reside in the said Bungalow with the consent of the Vendees after the expiry of three months from the date of Registration of this Sale‑Deed."
2. The respondent did not however, vacate the premises after the expiry of three months of the sale, nor, according to the petitioners tendered payment of Rs. 3,000 per month. They, therefore, filed an application before the Rent' Controller for the ejectment of the respondent on the ground of default. The application was contested on the ground inter alia of absence of relationship of landlord and tenant between the parties, but the issue that was framed in this regard was found against the petitioner which finding has been maintained by the Appellate Court as also by the High Court where the petitioners had gone is writ jurisdiction. The High Court was of the view that "the mere fact that a person agrees to pay something to the other for occupying his property would not create relationship of landlord and tenant between the two". The High Court further held that in the absence of any material on the record to show that after the expiry of the period of three months the respondent had asked for the consent of the petitioners and the same had been accorded to her it was difficult to hold that her occupation was permissive.
3. The Deed shows that the transaction of sale had been completed between the parties and that the respondent had agreed to make over "actual possession" of the property within a period of three months of the registration of the deed. The Deed further contemplates that if after the expiry of three months she continued to reside in the property with the consent of the vendees, she would be liable to pay Rs. 3,000 per month to the petitioners Counsel explains that the consent of the petitioners was implied as they had taken no object to the continuation of her occupation. If the further occupation of the respondent was for the purpose of residence, which may mean full enjoyment of the property to the exclusion 'of the petitioners and possibly for an unlimited period during which she had agreed to pay Rs. 3,000 per month, the question whether in these circumstances a tenancy had not been created, requires to be reconsidered. We, therefore, grant leave to appeal. The petitioners shall furnish security in the sum of Rs. 2,500.
Leave granted.
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