1994 PLP 1487 (CLC)

"The principle underlying subsection (5) is definitely in favour of the view that such sales are pre‑emptible. A contrary construction would enable the parties by a simple and inexpensive device to render the whole Act nugatory and would be plainly inconsistent with the provisions of sub‑rule (5) of rule 34 of Order 21 which declares that the Judge of the Court will sign for the party and that the execution of the document will have the same effect as the execution of the document by the party. These provisions clearly tend to show that the signing of the sale‑deed by the Court stands on the same footing as the execution of a sale‑deed by the agent of a party, with only this difference that whereas in execution of private sales the agent executing the document is appointed by the party himself, in signing the document under sub‑rule (5) the Court is given by law the power to sign for the party. But the sale in such a case is not by the Court but by the party though the deed is executed, in the sense of its being signed, by the Court, and the sale is not in execution of a decree. I would therefore answer the question in the affirmative." Similarly at pages 492 to 495 of the report it has been held as under: "The most important argument, however, that the sales of the kind in dispute were not included in `sales in execution of decrees and orders' mentioned in section 3(5) of the Punjab Pre‑emption Act of 1905; is the liability of the pre‑emption Act to be defeated if the contrary view is adopted. The vendor and the vendee have only to take the trouble of going to Court to get rid of the pre‑emptors. The argument that a whole Act will be nullified by a particular construction is an argument of such great force that even a straining of language is permissible to avoid that result. Here there is no need to strain the language. As I have shown above the ordinary sense of the expression `sale in execution' does not include a sale‑deed executed under Order XXI, Rule 34, it is only if we construe the expression in a sense in which it has never yet been used in any enactment that we can defeat the pre emption Act. I see no reason why we should adopt such a course. I am of opinion that Nawab and others v. Tikaya Ran and others (supra) was wrongly decided and, as observed in Imam Din v. Feroze Din and others (i), it was to avoid the application of the exception to decrees for specific performance that in the Pre‑emption Act of 1913 the words 'for money' were added after the word 'decree'. I turn now to the present Act. The obvious intention in adding the words 'for money' after the word 'decree' was to limit the operation of the exception to sales in execution of decrees for money and to leave sales in execution of other decrees unaffected (assuming that a sale in execution' can refer to a sale in execution of a decree other than money). Really what the legislature did in 1913 was intended to clarify that when it used the words sale in execution of a decree' it only meant sale in execution of a decree for money but in any case it did limit the exception as indicated above. If, in spite of the amendment, we are to hold that even sales in execution of decrees other than money are included because they are all sales in execution of orders, the amendment ceases to have any effect. It is obvious that the word 'order' in this subsection is used in a sense which excludes such orders as are made during the course of the execution of a decree. Legislature has divided sales in execution into orders.. Sales in execution of decrees are not sales in execution of orders. Decree and order here refer to those basic mandates which are the foundations of the execution proceedings. If the word 'order' were to refer to any and every order passed in execution proceedings, any reference to 'sale in execution of a decree' would be wholly redundant for even in cases of sales in execution of decrees there must be orders for sale. The word 'order' is not used in this subsection in a sence including the immediate order for sale, but is limited to that order which is the foundation of the execution proceedings. 'Sales in execution of decrees' are not in this context included in 'sales in execution of order'. The two expressions are mutually exclusive, Assuming for a moment that in its ordinary sense 'sales in execution of decree' is included in "sales in execution of order' in the present context it would be excluded on the well‑recognized principle started in Maxwell on Interpretation of Statutes (Ninth Edition, P. 330), 'where two or more expressions are coupled together one of which generally includes the other it is obvious that the more general term is used in a sense excluding the other". The learned commentator regards it as 'obvious'. I have already stated while dealing with the interpretation of the Act of 1905, that a very important argument against the interpretation adopted by Muhammad Wazir v. Chaudhri Jahangiri Mal and others (supra) is that such construction would nullify the Act. That argument applies with equal force to the present provision. There were three Punjab cases dealing with the question whether a sale like the one in dispute was excluded from the definition of sale or not. Rangi Ram and others v. Mehr Baksh and others (2), Genda Ram and another v. Ram Chand and another (1) and Imam Din v.. Feroze Din and others (supra). In all these cases it had been held that a sale deed executed in pursuance of a decree of specific performance of a contract of sale is pre‑emptible. Of these only one, that is Genda Ram and another v. Ram Chand and another (supra) was brought to the notice of the learned Judges who decided Muhammad Wazir v. Chaudhri Jahangiri Mal and others (supra). In Rangi Ram and others v. Mehr Baksh and others (supra) Shadi Lal and Le Rossignal, JJ. held that a sale in execution of a decree other than money was not within the exception. In Imam Din v. Feroze Din and others (supra) Bhide, J considered the question in sufficient detail. The learned Judge pointed out that according to the interpretation put on section 3(5) of the Act of 1905 in Nawab and others v. Tikaya Ram (supra) the right of pre emption could be easily defeated and it was to avoid this result that the legislature had inserted the words 'for money' after the word 'decree'. The learned Judge was of opinion that the object was to exclude from pre‑emption sale which were not voluntary but by the order of Court, implying clearly that sales like the one in question were voluntary sales. Apart from general considerations (as to the meaning of 'order' in this subsection) let us consider what is the order in the present case on which the defendant may rely as the order in execution of which a sale took place. There is no order produced by the defendant but Mr. Mahamud Ali refers us to various sub‑rules under which he says there must have been an order before the sale‑deed was executed. He refers to sub‑rule (5) of rule 32 and sub‑rules (2), (3), (4) and (5) of rule

34. We may eliminate rule 32(5), because a specific provision for the execution of a document is made in rule 34 and therefore the Court would not stand in need of invoking rule 32(5). Sub‑rule (2) of rule 34 provides for service of the draft of the document on the judgment debtor, Sub‑rule (3) says the Court may hear objections to the draft and may approve or alter the draft. Under sub‑rule (4) the decree holder has to deliver to the Court a copy of the draft on proper stamp paper. Sub‑rule (5) gives the form in which the document is to be executed. It will be wholly inappropriate to say that the sale which comes into existence under Order XXI, rule 34 is a sale in execution of any order passed under any of the sub‑rules mentioned above. The only mandate in execution of which the Court takes the steps mentioned in the various sub‑rules is the decree itself. It should be remembered too that rule 34 is a general provision relating to the execution of any document and is not limited to the execution of sale‑ deeds or deeds of transfer. Even the execution of a power of attorney is within the rule, vide Norah Alexandrina Margaret Moore v. Afthur Reginald Moore (2). . I will sum up my conclusions as follows:‑ (1) From the earliest times a distinction was observed in pre‑emption cases between sales by act of parties and sales by Court, though in the relevant law, which was the foundation of the right of pre‑emption, no words excluding the latter class existed. (2) Out of the reasons on which this distinction was based none applied to a sale‑deed executed in pursuance of a decree for specific performance of contract of sale which was in fact a sale by act of parties. (3) Section 3(5) of the Act of 1905 was intended only to give effect to the abovementioned distinction. The phrase used that is `sale in execution of a decree or order" does not in its ordinary sense include a sale‑deed executed under Order XXI, Rule 34, C.P.C. The intention was not, and could not have been to include such a sale for such inclusion would result in the right of pre‑emption being easily defeated. (4) Nawab and others v. Tikaya Ram and others (supra) was incorrectly decided. (5) In order to avoid the result of the interpretation put upon section 3(5), the Act of 1913 added the words `for money' after `decree' in order to make it clear that out of sales with respect to which it may possibly be said (as was done in Nawab and others v. Tikaya Ram and others (supra) that they were sales in execution of decrees, only sales in execution of decrees for money were intended. `Sales in execution of decrees' and `sales in execution of orders' are in the subsection mutually exclusive. With all deference, I am unable to agree with Muhammad Wazir v. Chaudhry Jahangiri Mal and others (Supra) and would answer the question in the affirmative. KHURSHID ZAMAN, J.‑‑I agree and have nothing to add. Answer returned to the referring Bench." Similar view has been taken by the Honourable Supreme Court of Pakistan in case of Khurshid Ahmad and 4 others v. Syed Akhtar Hussain Gilani and 4 others (PI.D~ 1991 SC 1070) at pages 1072 and 1073 of which report, it has been observed and held as under:‑ "It was ruled in Malik Tahir Ahmad v. Tanseef‑ur‑Rehman (1988 SCMR 1861) that in Punjab, sale by mutation in pursuance of decree for spec performance amounts to such sale which is not excluded by the definition of sale in section 3(5) of the Punjab Pre‑emption Act (I of 1913) and that such a sale could be brought under a suit for pre emption. The High Court view in the said case which was approved by the Supreme Court was as follows:‑ `In the decree for spec performance the vendor was directed to sell the property in accordance with the agreement. Since the sale of land could be legally made orally through mutation and the vendor could comply with the decree without the decree‑holder, having taken recourse to execution of proceedings, therefore, the transfer of land by the judgment‑debtor/vendor through mutation in compliance with decree was itself a sale, therefore, it was rightly pre‑empted. Regarding nature of transaction by way of mutation also the law is clear that the sale takes place not through mutation itself but it records, registered and attests oral transaction which is presumed to have taken place earlier. In pursuance of the same principle in the present case, for example the transaction of sale would be constituted by the direction of the Court to the vendor to sell the property to the vendor/respondents side. The vendor complying with this direction and making an oral sale to them by delivering the possession on receiving the sale price. All this as already, noted was done in this case. Thus, the oral sale was complete., If it is followed by mutation it becomes the evidence of the oral sale and if it is not followed by a mutation the pre‑emptor can nevertheless maintain a suit of pre‑emption on the basis of oral sale. Section 3(5) reads as follows:‑ Section

3. Definition‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ 1.‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ 2.‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ 3.‑ ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ 4.‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑:‑‑‑‑‑‑‑‑‑‑‑. S. 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 for consideration or otherwise; It is obvious from the above definition that the sale through decree from specific performance has not been excluded from the definition of sale. Though sale in execution of a decree for money had been included. Section 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 of 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 attestation of 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; whichever date shall be the ‑ earlier; (2) in the case of a force closure of the right to redeem village immovable property or urban immovable property. from the date on which the title of the mortgagee to the property becomes absolute; (3) In the case of sale of urban immovable property from the date on which the vendee takes under the sale physical possession of any party of the property." Out of two cases relied upon by learned counsel for the appellant case of. "Muhammad Wazir" (supra) which is a Single Bench judgment has been considered and dissented from in case `Nur Muhammad' whereas case of `Mst. Rup Devi' is distinguishable on facts as in that case the sale referred to is not in pursuance of a decree for Specific Performance of Contract, hence, the said case being distinguishable on facts is also of no help to the appellant. Therefore, the argument of the learned counsel for the appellant to the effect that the sale in question is not pre‑emptible being contrary to the law declared in cases of "Noor Muhammad" and "Khurshid Ahmad" (supra) has no force, hence is repelled.

9. As regards the question of limitation case of the appellant himself is that he is a co‑sharer in the Khata, therefore, if at the time of sale he was in possession of the land in question as a co‑sharer his possession cannot be considered to be as that of a tenant. Even otherwise, it cannot be said that on the date when the decree was passed in his favour he entered in possession of the land in question under the sale which was completed on 2‑7‑1977 when the sale‑deed was executed. Therefore, the suit filed within one year w.e.f. the date of execution of sale‑deed is well within time and has rightly been held so.

10. Last argument of the learned counsel for the appellant to the effect that he was in possession of the land in question as a tenant hence he possessed superior pre‑emptive right is also not established on record. Possessory status of the appellant being that of a co‑sharer as held above, entries of Khasra Girdawari Exh. D.4 cannot be relied upon as being contradictory to the entries of copies of record‑of‑rights Exh. D.3 and Exh. D.7, which have a presumption correctness. In case of Muhammad Bakhsh and 3 others v. Khuda Bakhsh and 3 others (1993 MLD 937) and Mirza Adam Khan v. Muhammad Sultan (PLD 1975 SC 9) at page 14 of the report it has been held as under:‑ "We are inclined to agree with this submission. We think that the High Court has rightly observed that on the death. of Muslim intestate his estate devolves upon his heirs who succeed to it in specific undivided shares in proportion to their inheritance, and each heir becomes the owner of a definite fraction of every part of estate until partition takes place. A co‑owner does not, therefore, become a tenant' of the other owners, simply by being in possession of property 'in excess of his own share, and he would, therefore, be liable to pay compensation to the other co‑owners for excess occupied by him. In this view of the . matter he does not become a tenant and no question would arise of taking proceedings against under the Rent Restriction Ordinance. In his position as co‑owner and judgment‑debtor he is liable to be dealt with under the rule 95 of Order XXL" Similar view has been taken in case of Muhammad Bakhsh and 3 others v. Khuda Bakhsh and 3 others (1993 MLD 937). Findings of the lower Appellate Court as such, in this. behalf are unexceptionable. Therefore, the appellant has rightly been held not to be a tenant of any portion of the suit land. In view of the above findings, both the appeals have no force, hence are dismissed with no order as to costs. AA/M‑1567/L Appeal dismissed