ABDUL NASIR and anothei vs Haji SAID AKBAR

' JAWWAD S. KHAWAJA, J.---This petition arises out of a preemption suit filed by the respondent- plaintiff namely Haji Said Akbar. After hearing the learned counsel for both sides, it has become evident that the pre-emption suit itself was pre-mature. Section 31 of the N.W.F.P. Pre-emption Act, 1987 provides as under:-- "31. Limitation-. - The period of limitation for a suit to enforce a right of pre-emption under this Act shall be [one hundred and twenty days] from the date:--

(a) of the registration of the sale deed; or

(b) of the attestation of .The mutation, if the sale is made otherwise than through the 'registered sale deed; or

(c) on which the vendee takes physical possession of the property if the sale is made otherwise than through the registered sale deed ' or the mutation; or

(d) of knowledge by the pre-emptor, if the sale is not covered under paragraph (a) or paragraph

(b) or paragraph (c)"

' From the above statutory provisions it is clear that the right of pre-emption becomes enforceable within 120 days from the four situations noted above in clauses (a),(b),(c) and (d) of section 31, ibid. In the present case we have gone through the agreement to sell dated 30-7-2001 wherein it has expressly been stipulated that a sale deed shall be executed after payment of the balance consideration amounting to Rs,6,00,000. The obvious conclusion to be drawn from the contents of the agreement to sell between the vendor and the petitioners-vendees is that a sale as yet has not been concluded. This is so, notwithstanding the fact that possession apparently has been delivered to the petitioners in anticipation of the sale.

2. Clause (c) of section 31 of the N.-W.F.P. Pre-emption Act reproduced above does speak of the period of limitation starting from the date a vendee takes physical possession, but this clause is also posited on the fact that a sale has taken place. Section 2(d) of the N.-W.F.P. Preemption Act defines sale. It is evident from this definition that it is not different from the usual connotation of the word "sale" which, encompasses the conveyance of title to the vendee. The agreement referred to above clearly specifies that the title in the property will be conveyed at a subsequent date after the balance consideration has been paid. It follows, therefore, that a sale has not, as yet, taken place.

3. The above observations are also reinforced by the provisions of section 5 of the Act ibid which expressly provides that the right of preemption "shall arise in case of sale". This provision, therefore, necessarily implies that if there is no sale i,e, conveyance of title from vendor to vendee, then the right of pre-emption does not arise.

4. In the foregoing circumstances, we are not left in any doubt that the parties in the case as well as the learned Courts below have fallen in error by treating the above referred agreement as a conveyance rather than an agreement to sell which envisages a conveyance at a future date, after payment of the balance consideration, which date has not as yet occurred.

5. Learned counsel for the parties concede the above legal position and acknowledge that the parties as well as the learned courts below have not noted the above cited statutory provisions while proceeding with the pre-emption suit filed by the respondent-plaintiff. In the circumstances, this petition stands disposed of with the observation that the respondent-plaintiff may enforce his right, if any, by way of pre-emption subject to law, as and when the sale is completed in terms of section 5 of the N.-W.F.P. Pre-emption Act. As a consequence, the respondent's plaint is rejected as, admittedly, no cause of action has arisen in favour of the respondent-plaintiff as yet.