1997 PLP 422 (SCMR)

‑‑‑‑S. 6‑‑‑Transfer of Property Act (IV of 1882), S. 53‑A‑‑‑Constitution of Pakistan (1973), .Art. 185(3)‑‑‑Agreement to sell executed between father 'of petitioner and owners of land‑‑‑Plaintiff treating agreement to sell as sale and on basis of his superior right of pre‑emption filed suit for possession through pre emption against petitioner's father‑‑‑Pending finalization of sale and disposal of suit, petitioner purchased land in question‑‑‑Transaction of sale was completed through petitioner's father (who had agreement to sell in his favour) as attorney of owners‑‑‑Plaintiff who had already filed suit for pre‑emption, instead of filing separate suit; impleaded petitioner as defendant in suit‑‑‑Suit was decreed by all the Courts including the High Court‑‑‑Validity‑‑‑Petitioner raising contention that agreement to sell in favour of his father could not be equated as sale for vendor still retained interest in property, therefore, Courts below erred while overlooking that property in question did not vest in petitioner's father, therefore, same was not pre‑emptible; that sale in favour of petitioner had been wrongly construed as transaction connected with agreement to sell and both Courts below reaching such conclusion had misread evidence; that transaction between petitioner's father (agreement to sell) and owners of property as sale was not supported by any evidence and merely delivery of possession and partial payment of price would not constitute complete transaction of sale‑‑‑Leave to appeal was granted to consider the points raised and to consider whether sale in favour of petitioner was wrongly and incorrectly described as transaction connected with agreement to sell. Muhammad Nawaz Abbasi, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioner. Nemo for Respondents. Date of hearing: 27th November, 1995. SH. RIAZ AHMAD, J.‑‑‑The petitioner seeks leave to appeal against the judgment dated 29‑6‑1995 delivered by a learned Judge of the Peshawar High Court at Dera Ismail Khan, whereby, revision petition filed by the petitioner calling in question the orders of the Courts below was dismissed. The facts giving rise to the institution of this petition are that respondents 3 to 11, the owners of the. disputed land entered into an agreement to sell the said land with respondent No.2, father of the petitioner, vide agreement dated 10‑4‑1988. Respondent No. l treating the agreement to sell as sale and on the basis of his superior right of pre‑emption filed a suit for possession through ore‑emption against respondent No.2. pending finalization of sale and the disposal of suit, the petitioner purchased the disputed land and on 23‑12‑1989, Mutations Nos. 1253 and 1254 were entered in his favour. The transaction of sale in favour of the petitioner was completed through respondent No.2 as attorney of respondents Nos. 3 to 11, the vendees. Respondent No.1 who had already filed a suit, instead of filing a separate suit, impleaded the petitioner as defendant in the suit. The petitioner as defendant contested the suit but it was decreed by the learned trial Judge vide judgment dated 25‑5‑1993. An appeal calling in question the aforesaid judgment and decree was also dismissed vide judgment and decree dated 25‑9‑1994 by the lower Appellate Court. The petitioner then invoked the revisional jurisdiction of Peshawar High Court at Dera Ismail Khan, but the said revision was also dismissed vide judgment impugned. Hence the present petition for leave to appeal.

2. It is contended before us that the agreement to sell in favour of respondent No.2 cannot be equated as sale because the vendor still retains the interest in the property and, therefore, the Courts below erred while overlooking that the disputed property did not vest in respondent No.2 and, therefore, was not pre‑emptible. It is further contended that the sale in favour of the petitioner has been wrongly construed as transaction connected with the agreement to sell and both the Courts below reaching this conclusion have misread the evidence. It is next contended that the transaction between respondent No. 2 and respondents Nos.3 to 11 was a sale is not supported by any evidence and merely delivery of possession and partial payment of price would not constitute the complete transaction of sale. All these points and whether the sale in favour of the petitioner was wrongly and incorrectly described as transaction connected with the agreement to sell need consideration. Accordingly, we grant leave to appeal. The status quo order granted on 8‑10‑1995 shall remain operative until disposed of appeal. A.A./F‑396/S Leave granted.