2002 PLP 1894 (CLC)

Date of hearing: 6th November, 2001. The facts are that the petitioner filed a suit for pre‑emotion for possession of land measuring 16 Kanals, 1 Marla given in detail in the plaint. The learned trial Court, on the basis of the‑oral and documentary evidence produced on the record, decreed the suit of the petitioner vide judgment and decree, dated 30‑9‑1984. The said decree was assailed by the respondents in an appeal. Vide judgment and decree, dated 3‑11‑1987, the appeal was accepted and the suit for pre‑emotion of the petitioner was dismissed on the sole ground of limitation The learned Appellate Court held that possession was delivered under the sale to the vendee‑respondents on 12‑6‑1980. According to the appellate Court, it was not material if the complete sale price was not paid on the said date and concluded that the payment of part of sale price alongwith delivery of possession shall amount to possession under the sale and that time shall start to run for a suit for pre‑emotion from the said date. Although the Mutation No.838 of sale was attested on 9‑8‑1980 and the suit was filed on 8‑8‑1981 (within one year of mutation) yet the learned Appellate Court computed the limitation w.e.f. 12‑6‑1980 and held the suit to be barred by time.

2. The point for determination that arises in this civil revision is the validity of the transaction of oral sale that took place on 12‑6‑1980. The vendee/respondents had contended that they had obtained the possession of the suit land on 12‑6‑1980 much earlier to the attestation of the sale mutation. According to him, Exh.D.1 copy of the report Roznamcha Waqiati shows that the vendor Mst. Zeenat entered into an agreement to sell the suit land to the vendees on 12‑6‑1980 and after receiving Rs.3,000 as earnest money, she delivered the possession to the defendants on that date. The full sale price was admittedly not paid on that date. The learned trial Court was of the view that the sale would have been completed on 12‑6‑1980 if along side proving the plea of possession the payment of the entire sale consideration would have been made on the same day. Holding thus the trial Court came to the conclusion that no completed sale took place on 12‑6‑1980 for the purpose of computing limitation. The suit was held to be within time. In appeal, however, the reliance was placed upon the definition of the term "sale" as given under section 54 of the Transfer of Property Act, according to which a "sale" is the transfer of ownership in exchange for a price paid or promised or part paid and part promised. It was accordingly held that even the payment of part consideration would amount to sale and under Article 10 of the Limitation Act time shall commence to run from the date on which the purchaser takes, under sale physical possession of the whole of the property sold. It was thus, found that the sale was completed on 12‑6‑1980 and the suit filed beyond one year thereof shall be barred by limitation.

3. Ch. Abdus Sattar, Advocate, the learned counsel for the petitioner challenged the judgment of the Appellate Court on two grounds. It is firstly contended that as section 54 of the Transfer of Property Act applies to the erstwhile State of Bahawalpur, no oral sale shall be effective unless made through a registered instrument. In support of this contention, he has relied upon the case of Muhammad Masud Khan Bhatti v. Mst. Ghulam Fatima 1987 SCMR 1206 to contend that the‑ property in dispute is situated in Bahawalpur, where the Transfer of Property Act and the Registration Act apply with full force and, therefore, sale of immovable property of the value of Rs.100 or more cannot be made without; a registered instrument. To the same effect, reliance is placed on the cases of Custodian, Evacuee Property, West Pakistan, Lahore v. Rais Ghazi Muhammad PLD 1973 SC 537 and Barkat Ali v. The Custodian of Evacuee Property 1974 SCMR 69.

4. This argument of the learned counsel for the petitioner is self- defeating. The petitioner is a pre‑emptor who has filed the suit for pre emption on the basis of sale which according to the petitioner himself is evidenced by Mutation No.838, dated 9‑8‑1980. If this argument of the petitioner is allowed, it would lead to non‑suiting him on the simple ground that no valid sale through a registered sale‑deed is in the field. This argument is also not valid in view of the rule laid down in the case of Abdul Karim v. Fazal Muhammad Shah PLD 1967 SC

411. Section 3(5) of the Punjab Pre‑emption Act, 1913 defines "sale" as under:

"3(v) 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 landlord whether for consideration or otherwise."

5. In view of the definition of sale, it was ruled in the case of Abdul Karim (supra) as under:‑‑ "this definition of sale is obviously wider than the one under section 54 of the Transfer of Property Act, for, it .is not governed by the restrictions as to the mode of transfer contained in the latter section."

6. It is thus found that for the purpose of pre‑emption an oral sale is pre‑emptible regardless of the provisions of section 54 of the Transfer of Property Act, 1882.

7. It was secondly contended by the learned counsel for the petitioner that in order that a sale is completed sale the whole sale consideration, has to be made. According to him, as only a part of sale consideration was proved to have been made on, 12‑6‑1980 the transfer of possession even if evidenced by the Roznamcha Waqiati would not amount to possession under the sale. The learned counsel supported his contention with reference to the case of Muhammad Inayat and 5 others v. Mst. Nisar Fatima PLD 1994 SC 120 and case of Abdul Haq and 4 others v. Sardar Shah and others 1994 SCMR 1238.

8. On the other hand, Mr. Aejaz Ahmed Ansari, Advocate for the respondents contended that the sale has been defined under section 54 of Transfer of Property Act to mean the transfer of ownership in exchange for a price paid or promised or part paid and part promised. Even if the part of sale consideration is proved it would amount to sale. According to him if possession is transferred under such sale, it would be enough for the purpose of computing limitation from such date under Article 10 of Limitation Act and section 30 of the Pre emption Act, 1913.

9. The reliance placed upon the case of Muhammad Inayat (supra) by, the learned counsel for the petitioner would not advance his case. In the cited case, the parties had expressed and intended that the sale would be completed only on the registration of the sale‑deed and not earlier. No such intention of the parties is available in the present case. In the case of Abdul Haq and 4 others (supra), the question was that as the sale was out of joint Khata, it did not amount to transfer of possession in pursuance of the sale. Obviously, in. the present case, the sale is in respect of a specific piece of the land the transfer of possession of which is evidenced by Exh. D.1 on the record.

10. From the above discussion, the following conclusions are made:‑‑ (a) That a sale which is subject‑matter of a suit for pre‑emption depends upon the intention of the vendor and the vendee. If the parties intended a sale to be through an oral transaction, such, a sale would be covered under the definition of sale under the ; Punjab Pre‑emption Act, 1913 and shall be pre‑emptible. The rule laid down in the case of Abdul Karim v. Fazal Muhammad Shah PLD1967 SC 411 is followed. (b) The definition of sale in the Punjab Pre‑emption Act, 1913 is wider than the definition given in the Transfer of Property Act, 1882. Even in the latter Act sale means transfer of ownership in exchange for a price paid or promised or part paid and part promised. As the sale consideration was partly made on 12‑6‑1980, it would amount to sale susceptible to a right of pre emption. (c) That such a sale shall be valid for the purpose of Article 10 of Limitation Act, 1908 and section 30 of the Pre‑emption Act, 1913, if accompanied by delivery of possession of the vendee under the sale. The period of one year is liable to be calculated from this date.

11. Viewed in this perspective, the suit for pre‑emption filed beyond one year of the transfer of possession under the sale was barred by time. There is no merit in this civil revision which is hereby dismissed. Parties to bear their own costs. Q.M.H,/M.A.K./A‑492/L Revision dismissed.