P L D 2006 Supreme Court 306 (PLP)

SARDAR MUHAMAMD RAZA KHAN, J.

This appeal after leave of Court is filed against the judgment dated 20-10-2001 of a learned Judge in Chambers of Lahore High Court, Bahawalpur Bench, whereby, while accepting the revision petition of respondents, the judgment and decree dated 7-7-1987 of the learned District Judge Bahawalpur was set aside, that of the trial Court was restored and the appellant's suit for pre-emption was dismissed. The learned Additional District Judge, while setting aside the dismissal of the suit by the trial Court, had granted a decree of possession through pre-emption in favour of the appellant.

2. The brief and relevant background of the case is that Mithu son of Punun Khan and others, owners of the suit land had entered into an agreement to sell the suit land in favour of Abdul Rashid etc., the respondents on 8-6-1972, which was registered on 9-6-1972. It appears that the agreement aforesaid failed to be completed and hence Abdul Rashid etc. filed a suit for specific performance of contract on 29-6-1976, which was finally decreed on 20-11-1979. During execution proceedings and in compliance with the decree, the transaction was registered on 27-11-1980.

3. Mst. Maqsood Mai, on 11-3-1981 filed a suit for pre-emption which was dismissed by the trial Court, holding the view that the vendees had taken possession of the land long before the decree and hence the suit of pre-emption was time-barred.

4. The learned Additional District Judge held the contrary view that sale was not c6mpleted with the transfer of possession but with the registration of the sale on 27-11-1980 in compliance with the decree dated 20-11-1979 of specific performance of contract and that the suit filed on 1-3-1981 was well within time. The learned High Court disagreed with the first Appellate Court and concurred with the trial Court.

5. Section 30 of Punjab Pre-emption Act, 1913 read with Article 10 of the Limitation Act of 1908 provides that if limitation is to be computed from taking over possession by the vendee, then such possession must be under the sale. The question to be determined is, that the delivery, if at all, of the possession in the present case was or was not under the sale. If this question is answered in affirmative, the pre-emption suit of the appellant lady would decidedly be time-barred but if the question is answered in the negative, the suit would certainly be within time.

6. It is an admitted principle of law, that an agreement to sell is not a sale, as such, and hence for this sole reason, any transfer of possession if at all, cannot be deemed to be a transfer of possession under the sale and a prospective pre-emptor cannot be expected of following the delivery of possession. A perusal of registered agreement to sell dated 9-6-1972 would indicate that the performance of contract was deferred to the registration of sale subject to payment of remaining amount and, most importantly, subject to the procurement of sale certificate by the vendor, for, he had acquired the property from Government through auction. The very recital of the deed is indicative of the fact that the vendor was yet to mature title and the agreement was to be completed after the acquisition of title and through a registered document. In these circumstances, the sale was never complete and any possession even if delivered would never be considered to be one under the sale.

7. The filing of a suit for specific performance of contract, seriously contested by the real owner, is by itself a strong indication that the sale was not only not complete but also strongly disputed between the parties to the agreement to sell. In the given conditions, the possession even if delivered would not be a one delivered under the sale.

8. No doubt a possession obtained under an oral sale gives a prospective pre-emptor a cause of action but in that case too the completion of oral sale is bound to be proved. When the very agreement to sell contains a recital for the completion of sale through a registered deed, no cause of action could be deemed to have accrued to a prospective pre-emptor, without such registration. When an agreement to sell is indicative of the imperfect title of the vendor which is to be perfected in due course, the sale cannot be deemed to be completed unless such title is perfected, as given in the agreement to sell in hand. This principle has been discussed by this Court in the case of Muhammad Inayat as well, reported as PLD 1994 SC 120.

9. Learned counsel for the respondents raised an objection that appellant Mst. Maqsood Mai was a party to the suit for specific performance of contract and hence had the knowledge of the delivery of possession. This objection is totally unfounded because we have already held that the possession if at all obtained in the instant case was not under the sale. Moreover, the appellant if at all a party to the suit aforesaid was not party to the sale but a mere party to a dispute between the parties to the agreement to sell. It does not estop her in any manner whatsoever from filing a pre-emption suit after registration of sale-deed, particularly when the possession provenly was not under the sale. The learned High Court has, therefore, held an incorrect view while that of the learned Additional District Judge was in accordance with law.

10. Consequently, the appeal is accepted, the impugned judgment and decree dated 20-10-2001 of the High Court is set aside and that dated 7-7-1987 of the learned Additional District Judge, Bahawalpur is restored on payment of Rs.24,000 (rupees twenty-four thousand only) as pre-emption money within two months, in case it is not deposited already. M.H./M-37/S?????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.