1984 PLP 841 (MLD)

The dispute in this petition is in respect of an agricultural land bearing Survey Nos.658, 659, 664, 665, 718, 721-725 A and B, 826 and 795-A, in Deh Sohiyeon Taluka and District Dadu measuring 30.16 Acres. The petitioner had purchased 1/4th share in the above land in June, 1969 and there is no dispute in respect of the same before us. The remaining 3/4th share in the said land was sought to be purchased by the petitioner and respondent No.6 Noor Muhammad from claimant Hafiz Idris by an agreement of sale, dated 3-1-1972 for the consideration of Rs.35,000 by an agreement. Rs.8,000 was to be paid to the seller on 10-1-1972 and lts.5,000 on 31-7-197? while the remaining amount of Rs.22,000 was to be paid in April, 1973 when the sale was to be", as stated in para.6 of the petition. The petitioner has claimed that on payment of Rs.8,000 to Hafiz Idris he was given the possession on 10-1-1972 but no document has been filed to show the factum of delivery of the said possession. The petitioner has claimed that he paid Rs.5,000 on 31-1-1972 and balance of Rs.22,000 on 4-4-1973 and, as stated in paragraph 8 of the petition the agreement of sale was accordingly registered in April, 1973. The mutation in the record of rights was made on 14-7-1973. in respect of the 3/4th share of Hafiz Idris.

2. The respondents Nos.2 to 4 made an application in August, 1973 to the Deputy Commissioner submitting that they were entitled to the right of first purchase in accordance with paragraph 25 of M.L.R.115, The application was kept pending and it was only on 7-6-1974 that Mukhtiarkar and 'tenancy 'tribunal by his order, dated 7-6-1976 dismissed the same after hearing the parties. It may be stated here that the rules framed by the Sind Land Commission under M.L.R. 115 in respect of the pre-emption rights granted under paragraph 25 of M.L.R.115 were brought into force on 13-2-1974.

3. The respondents Nos.2 to 4 filed an appeal before the Assistant Commissioner, Dadu under rule 3 of Sind Land Commission (Pre-emption) Rules, 1974. The Assistant Commissioner, Dadu by order, dated 16-i1-1974 set aside the order of Mukhtiarkar and Tenancy Tribunal Dadu and held that the agreement alleged to be entered into by the petitioner Hafiz Idris was bogus as it had not been registered or even attested by any Oath Commissioner. He further held that the said agreement had been manipulated in the previous date to deprive the fitting Tenancy from first right of pre-emption. It was also held by him that respondents Nos.2 to 4 had remained Haris of the same from 1962-63 to 1973-74. The Assistant Commissioner also held that since paragraph 25 (d) had conferred preferential pre-emption rights upon a tenant viz, Hart therefore, the present respondents Nos.2 to 4 were entitled to claim pre-emption in respect of the same in spite of the fact that Bahadur was co-owner of the land.

4. The petitioner took his grievance to the Deputy Commissioner, Dadu, in Revision, but he dismissed the same on 12-4-1975/22-4-1975. The petitioner had argued that his agreement was made on 10-1-1972 before paragraph 25 of the M.L.R.115 and therefore respondents Nos. 2 to 4 could not have the first right of pre-emption. The Deputy commissioner held that the record produced before him by Tapedar of the beat revealed that respondents 2 to 4 were Haris of the said survey numbers: He also held that the original sale agreement of the petitioner showed that it was neither registered nor attested by any lawful authority. He also held that the pre-emption rights had accrued after the sale is complete and the sale-deed is registered.

5. The petitioner went in second Revision before the Commissioner. Hyderabad Division but the same was dismissed on 20-5-1975 on the ground that the Commissioner had no jurisdiction. The petitioner has not challenged that position.

6. The learned counsel for the 'petitioner has contended before us that since the sale in his favour was complete on 3-1-1972 by the agreement executed with respondent No.5 therefore, the petitioner was not affected by M.L.R. 115 as the rest of the matter viz. The payment of the consideration did not affect the sale in his favour. The learned counsel contended that although the sale agreement in his favour had been registered in April 1973 but his registration date was of no consequence as the agreement had taken effect from 3-1-1972 the date of execution in accordance with provisions of section 47 of the Registra tion Act.

7. We are unable to agree with this view because the consistent position adopted by the petitioner before lower Tribunals was that agreement executed on 3-1-1972 was a mere agreement of sale and it was never asserted that the sale had been completed on 3-1-1972 or 10-1-1972. In this respect paragraphs 5, 6, 8 and 9 of the petition are relevant. Moreover, the lower Tribunals have clearly held that the document in favour of the petitioner was mere agreement of sale. The petitioner has not filed before us either the original agreement of sale or even the registered agreement of sale which would show, us that sale in favour of the claimant had already been completed on the day of execution of agreement of sale or on 10-1-1972 when the possession is alleged to have been transferred.

8. It is quite a strange position adopted by the petitioner that the sale was complete even before the payment of the major portion of the price and therefore, it was for him to establish the same in 'a positive manner and not to take it for granted that we will accept every word of the petition as gospel truth. An agreement of sale is mere agreement and it remains as such and it cannot be treated as a sale-deed, unless it is established to be a sale which is not the case here. The sale in this case would be treated to have been completed only on 4-4-1973 when the balance of the consideration namely Rs.22,000 was alleged to have been paid and not earlier and hence the petitioner could not claim to have any vested right in these lands before April, 1973.

9. The petitioner is not able to show by any document that the findings of the lower Tribunal in respect of the agreement of sale are in any way perverse or unjustified. We therefore, accept the findings of the facts arrived at by the lower Tribunals.

10. The petitioner has not contended that if the sale was really completed only in April, 1973 then also he would not be affected b the paragraph 45 of M.L.R. 115 which had come into effect in 1972. The paragraph 25(d) of M.L.R. 115 provides that as commencing from, Kharif 1972 the tenant shall have right of pre-emption in respect o the land comprised in his tenancy. This is a complete answer to the submissions of the petitioner. The sale agreement in favour of the petitioner could not be said to have ripened into a sale before April 1, 1973. A mere agreement of sale executed on 3-1-197.2 and only partly performed on 10-1-1972 could not be called a sale which had been completed before promulgation of M.L.R.

115. It is, therefore, obvious that the respondents Nos. 2 to 5 had the first preference of pre-emption in taking the land in dispute from respondent Hafiz Idris as from Kharif 1972 and therefore, the orders passed by the Tribunal below did not suffer from any illegality or infirmity.

11. Mr. Muhammad Ali had also argued that para.3, sub-clause (2) of Sind Land Pre-emption Rules of 1974 prescribed 12 months, commencing from execution of sale, in respect of exercise of rights of pre-emption, by a Hari and since the application by respondents 2 to 4 was made in August, 1973 therefore, it was barred because execution of sale had taken place on 3-1-1972 or 10-1-1972. We do not agree. This is in fact repetition of the same argument. We have already held that sale,. any in favour of the petitioner, could not be said to have taken place before 4-4-1973 when the balance of consideration was allegedly paid. Therefore, even this argument is of no avail. Consequently this petition is dismissed with costs. M.A.K. Petition dismissed.