2002 PLP 1460 (YLR)

3. The suit was contested on the grounds that the suit was time‑barred and that the plaintiff was estopped to bring the suit. On merits, the superior right of pre‑emption .was denied. It was further contended that the sale price as shown in the decree was not fixed in good faith or actually paid. He also claimed expenditures upon improvements.

4. From the pleadings of the parties, the following issues. (1) Whether the plaintiff has got superior right of pre‑emption? (2) Whether Rs.17,200 were fixed in good faith or actually paid as a sale price of the suit land? (3) If Issue No.2 is not proved, thus what was the market value of the suit land at the time of its sale? (4) Whether the suit of the plaintiff is time‑barred? (5) Whether the plaintiff is estopped to bring the present suit by his word and conduct? (6) Whether the defendant had made improvements upon the suit land? If so, to what, extent? (7) Relief.

5. After recording evidence, the learned trial Court found that Fateh Muhammad respondent was the real brother of Mst. Pairan vendor and that he was also Shariek‑e‑Khata in the suit land. The superior right of pre‑emption of the respondent was thus, established. Issues Nos.2 and 3 were decided against the appellant/defendant. It was also found that the suit of pre‑emption which was instituted on 9‑7‑1979 was within time from the date of judgment in appeal in the suit for specific performance which was passed on 20‑6‑1979. Holding thus, the suit for pre‑emption of the respondent was decreed in his favour vide judgment and decree dated 6‑7‑1986.

6. The appellant challenged the said decree in First Appeal No.78 of 1986. The learned Appellate Court reappraised the evidence on the record and concurred with the findings of the learned trial Court on all the issues. Resultantly, the appeal was dismissed on 4‑3‑1987.

7. The arguments of the learned counsel for the parties have been heard and record perused.

8. The main contention raised by the learned counsel for the appellant is that the appellant had obtained a decree for specific performance of the contract and that as no registered sale‑deed was executed in pursuance of the said decree, the suit for pre emption was not competent. According to the learned counsel, even after such decree, the title remains with the original owner until a proper sale‑deed is registered in favour of the decree‑holder. He next contended that although the decree for specific performance was passed on 15‑6‑1978 and was affirmed in appeal on 20‑6‑1979, both the said decrees only affirmed the original transaction evidenced by the agreement to sell dated 4‑1‑1965 and as such the suit brought on 9‑7‑1979 was barred by time.

9. The first argument of the learned counsel for the appellant that no suit for pre emption was competent against a decree for specific performance without the execution of a sale‑deed in pursuance thereof is not tenable at law. According to section 3(5) of the Punjab Pre‑emption Act, 1913, "Sale" shall not include:‑‑ (a) a sale in execution of a decree for money or of an order of a Civil, Criminal or Revenue Court or of a Revenue Officer; (b) the creation of an occupancy tenancy by a landlord whether consideration or otherwise. It is obvious from this definition sale through decree for specific performance, has not been excluded from the definition of sale. There is also no indication in the definition that if a law permits sale without registration, it will not be treated as sale for purpose of pre‑emption.

10. In this context, reference to section 30 of the Punjab Pre‑emption Act, 1913 is also relevant which is reproduced as under:‑‑ "S.30. Limitation.‑‑‑In any case not provided for by Article 10 of the Second Schedule the Limitation Act, 1908 the period of limitation in a suit to enforce a right of pre‑emption under the provisions of this Act shall, notwithstanding, anything in Article 120 of the said Schedule, be one year; (1) in the case of a sale of agricultural land or of village immovable property, from the date of the attestation (if any) of the sale by a Revenue Officer having jurisdiction in the register of mutations maintained under the Punjab Land Revenue Act, 1887, or from the date on which the vendee takes under the sale physical possession of any part of such land or property; which ever date shall be the earlier." The Legislature in sub‑clause (1) above has qualified the sale of agricultural land or of village immovable property subject to limitation from the date of the attestation, if any (underlining is ours) of the sale by a Revenue Officer. It certainly implies that the Punjab Pre‑emption Act, 1913 contemplates a completed sale even before its attestation by a Revenue Officer. An oral sale which fulfills all the ingredients of a sale is pre‑emptiable under the Punjab Pre‑emption Act, 1913. Strength for this proposition is drawn from the rule laid down in the case of Abdul Karim v. Fazal Muhammad Shah (PLD 1967 SC 411).

11. In the instant case, the sale is evidenced by a judicial pronouncement by a Court of competent jurisdiction through the decree for specific performance in favour of the appellant who shall be considered as the vendee under the sale.

12. The next contention raised by the learned counsel for the appellant that the suit filed on 19‑7‑1979 was barred by time is also fallacious. An agreement to sell is merely executory in nature which forms the basis of a suit for specific performance. The decree for specific performance takes effect from the date when it is passed and cannot act retroactively from the date of the agreement to sell. It is further pointed out that the decree for specific performance was passed on 15‑6‑1978, against which, an appeal was filed. The appeal being a, continuation of the suit, the final adjudication of the lis shall come through the decree of the learned Appellate Court. The appeal was dismissed on 20‑6‑1979 whereby the decree for specific performance became final and the suit filed on 9‑7‑1979 was rightly held to be within time.

13. The learned counsel for the appellant has not been able to point out any misreading and non‑reading of evidence on the record. He has not been able to indicate any other material irregularity in the concurrent findings of the learned lower Courts.

14. Resultantly, there is no merit in this second appeal which is hereby dismissed, leaving the parties to bear their own costs. Q.M.H./M.A.K./A‑528/L Appeal dismissed.