2012 PLP 1440 (MLD)

CH. MUHAMMAD IBRAHIM ZIA, J.

The captioned appeal, with the leave of the Court, is addressed against the judgment of the High Court dated 27-6-2008, whereby the appeal filed by the respondent has been accepted.

2. The precise summary of facts giving rise to this appeal is that an agreement-to-sell relating to a piece of land measuring 4 kanals along with houses comprising survey No.1073 min situated in village Garrala, Tehsil and District Sudhnoti, was executed on 13-4-2000 between the appellants and one Muhammad Raheem. It was agreed to transfer the property to appellants for consideration of Rs.4,00,

000. The respondent, on 17-7-2000 filed a pre-emption suit in the trial Court wherein he alleged that the agreement-to-sell is in fact a sale-deed and the actual price of the property is Rs.1,50,000, whereas Rs.4,00,000, in the deed, is written just to defeat the right of pre-emption. The suit was resisted by the appellants. After completion of necessary required proceedings, the trial Court dismissed the suit vide judgment dated 28-2-2007. The respondent feeling aggrieved challenged the propriety of the judgment of the trial Court in appeal before the District Judge, which was also dismissed vide judgment and decree dated 26-6-2007. Second appeal was filed in the High Court on 26-7-2007, which has been accepted by the learned High Court through the impugned judgment and consequently the suit is decreed while setting aside the concurrent findings of the subordinate Courts. Hence this appeal is brought before this Court.

3. Messrs Kh. Muhammad Nasim and Mushtaq Ahmed Janjua, the learned counsel for the appellants, seriously attacked the impugned judgment on the ground that the judgment is against the statutory provisions of law dealing with the subject and also against the facts and record of the case. It is argued on behalf of the appellants that the learned High Court has wrongly accepted the appeal against the concurrent findings. Admittedly the pre-emption suit is filed, wherein an agreement-to-sell has been made origin of the suit, whereas, according to the settled principle of law no right of pre-emption is available against agreement-to-sell. The respondent-plaintiff has failed to prove his contention by production of cogent evidence rather it has been clearly proved from the evidence of the parties that the document executed regarding the suit property is an agreement-to-sell, through which the title of the property has not yet been transferred, thus according to the statutory provisions of law no right of pre-emption exists against agreement-to-sell. They referred statutory provisions of sections 53 and 54 of the Transfer of Property Act and section 4 of the Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 Bik, and finally submitted that this appeal merits acceptance.

4. While controverting the arguments of the learned counsel for the appellants, Messrs Asghar Ali Malick and Sardar Mushtaq Ahmed, the learned counsel for the respondent forcefully defended the impugned judgment on the ground that the possession of the property has been handed over to the purchaser. It is mentioned in the deed that the purchaser is authorized to make improvements in the property. The recital of the deed clearly reveals that it is a sale-deed for all practical purposes just to defeat the right of pre-emption, therefore, the learned High Court has rightly accepted the appeal and decreed the suit.

5. We have paid our utmost attention to the arguments advanced at bar by the learned counsel for the parties and also perused the record. The admitted position according to the stands of the parties in this appeal is that both the subordinate Courts, on question of facts, have concurrently recorded their findings. According to celebrated principle of law the second appeal is only competent on question of law and doesn't lie against concurrent findings of facts. Therefore, we do not feel necessity to discuss the factual aspect of the case. The only legal point which requires deliberation and appreciation is the status and nature of the document "agreement-to-sell". Whether it can be treated 'sale' for the purpose of exercising the right of pre-emption or not? For proper appreciation, we have to advert to the basic codal provisions dealing with the subject i.e. section 4 of Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 Bik, which speaks as following:-- "

4. Right of prior purchase; application of.

The right of prior purchase shall mean the right of a person to acquire agricultural land or village immovable property in preference to other persons and it arises in respect of such land only in case of sales, or of foreclosures of the right to redeem such property. Nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in effect a sale." (Underlining is ours) In this codal provision the legislature has empowered the Court to treat an alienation other than sale as sale. In the statutory provision the words "alienation" and "sale" are of vital importance. These words have not been defined in this Act, therefore, for their definition and scope we will have to borrow meaning from the other sources.

6. The word "Sale" has been defined in section 54 of the Transfer of Property Act, which speaks as following:-- "

54. Sale defined.

"Sale" is a transfer of ownership in exchange for a price paid or promised or part paid and part promised. Sale how made.

Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property, of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Contract of Sale.

A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It doesn't, or itself create any interest in or charge on such property." (Underlining is ours) The definition of sale given by the Transfer of Property Act, is express, clear and comprehensive, therefore, need no further clarification, which clearly speaks that sale is a transfer of ownership.

7. Now for the meaning of the word "alienation" we will have to seek guidance from other sources. In the Oxford English Dictionary, the word 'alienation' has been defined as following:-- "The action of estranging, or state of estrangement in feeling or affection; The action of transferring the ownership of anything to another; The taking of anything from its owner, Diversion of anything to different purpose;" The state of being alienated, or held by other than the proper owner; Mental alienation: Withdrawal, loss or derangement of mental faculties; and Alteration, change. The Bombay High Court, in a case reported as AIR 1972 Bombay, 43 (v 59 C 6), while interpreting the word 'alienation' has opined as following:-- "Mr. Limaye on behalf of the plaintiff made an attempt to argue that in section 40 of the B.A.D.R. Act the word 'alienation' was used synonymously with the word "transfer". In view however, I cannot accept this contention. In my opinion "alienation" means transfer of ownership of property to another person. The word applies to absolute conveyances of immovable property and imports an actual transfer of title. It does not include a lease. The lease Exh.54 therefore is not an "alienation" within the meaning of that word in section 40 of the B. A. D. R. Act and is not invalid. The lease being valid the plaintiff is not entitled to possession on the footing that the defts. are trespassers. This suit must therefore fail." (Underlining is ours) While making distinction between the sale and agreement-to-sell the apex Court of Pakistan in a recent judgment titled Sikandar v. Sher Baz 2007 SCMR 1802 held:-- "We have carefully examined the nature of document (Exh.D-1) which at the best can be equated to that of agreement to sell. It is, however, to be kept in view that "agreement to sell" "sale" are neither synonymous terms nor interchangeable. Any possession which is obtained under an agreement to sell cannot be considered as a possession under the sale especially for the purpose of limitation. It can, therefore, safely be inferred that the possession was never taken under "sale" but pursuant to the mutation got attested on 9-5-1979 (Exh.P2)." (Underlining is ours)

8. From the survey of hereinabove discussed legal position it is clarified that the alienation in which the ownership or title of property is transferred that can be held by the Court to be sale and not otherwise.

9. The cumulative study of the Right of Prior Purchase Act, 1993 Bik, conveys clearly the spirit of the legislation that the right of pre-emption can be exercised only when the title of the property is transferred. Now keeping in view the legal position we will have to examine the document agreement-to-sell, which is the bone of contention between the parties in this lis. For proper perception the document 'agreement-to-sell' is reproduced as under:-- In this document the owner has admitted that he has received the consideration money and agreed that:

10. The clear wording of the deed conveys that between the parties it has been agreed that after completion of required documents the owner of the property will execute sale-deed, in case of his failure, the other party will have to approach the Court for decree of specific performance, which means although the parties entered into agreement and the consideration amount has also been paid but the title of the property has not been transferred. For transfer of title of the property there are some further steps to have been taken. As hereinabove, we have, discussed the scope of the word "alienation" which means the transfer of the title of the property. According to the provisions of section 4 of the Right of Prior Purchase Act, if the alienation is of such nature through which the title/ownership of the property is transferred, no doubt, the Court is vested with powers to treat the same as sale for the purpose of Right of Prior Purchase Act, but where no such transfer of title or ownership occurred, the alienation cannot be treated as sale. If the alienation is not sale, the question of right of pre-emption doesn't arise.

11. Hereinabove referred statutory provision section 54 of the Transfer of Property Act, in which sale has been defined, clearly lays down that a contract of sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties and it doesn't, of itself create any interest in or charge on such property. Our this view finds support from the several judgments of this Court, reference may be made to 2006 SCR 182(sic) and

214. In Raja Muhammad Akram Khan v. Azad Government and others case, PLD 2006 SC (AJ&K) 19 = 2006 CLC 1872 while dealing with the status of agreement-to-sell, this Court held:-- "There is another aspect of the case which needs consideration. Raja Muhammad Akram Khan, petitioner, pleads his right on the basis of an agreement-to-sell which doesn't create complete ownership for the purchaser and remains subject to some further performance under the Transfer of Property Act read with the Specific Relief Act." (Underlining is ours)

12. According to the terms of hereinabove reproduced deed of agreement-to-sell, further steps of execution of sale-deed or obtaining decree for specific performance have to be taken by the parties. Therefore, in our considered view the suit has been filed prematurely merely on the basis of above referred agreement-to-sell, which is not sale, hence there is no right of pre-emption. However, if in furtherance of this agreement-to-sell, the sale-deed is executed or a decree for specific performance is granted in that case any person in whom right of pre-emption vests, may approach the Court for enforcement of his right. Therefore, the subordinate Courts have rightly declared that the respondent-plaintiff has got no cause of action on the basis of the agreement-to-sell. The learned High Court has not dived into deep for true perception of the word "alienation" and the terms and condition of the document (agreement-to-sell), therefore, we are unable to subscribe with the view of the High Court. Consequently, this appeal is accepted, the impugned judgment and decree are set aside and the judgment and decree of the trial Court is hereby restored. The parties shall bear their own costs. H.B.T./37/SC(AJ&K) Appeal accepted.