MUHAMMAD SHARIF Versus MUHAMMAD SIDDIQ

Brief facts of this Civil Revision are that a suit for possession through pre‑emption regarding agricultural land measuring 26 Kanals and 1 Marla was filed by the respondent against the present petitioners. This suit was contested by the defendants, issues were formulated, evidence was produced by the parties and the learned trial Court vide judgment and decree, dated 12‑4‑1983 decreed the suit. On appeal the learned: Appellate Court vide judgment and decree, dated 28‑11‑1984 dismissed the appeal and confirmed the judgment and decree passed by the learned trial Court. Both the concurrent findings by the learned Courts below are under challenge in the instant Civil Revision.

2. Submissions made by the learned counsel for the petitioners are that the suit for possession through pre‑emption was filed on the basis of a decree for specific performance, dated 30‑9‑1975 from the father of the respondent and others and as the decree was not executed by the petitioners and although the mutation was entered in the Revenue Record in favour of the petitioners the suit filed by the respondent was premature as there being no sale in the field in respect of the said land: He further submitted that the learned Courts below took the misconceived view while saying that the non‑registration of the sale‑deed is a great hindrance upon the ownership, yet it does not render the sale incomplete. This observation is a negation of the conception of the ownership and the learned trial Court assumed wrong view and gave an erroneous judgment and decree. The main question of law in the present suit is that the land was obtained by the petitioners through a decree for specific performance of the agreement. This decree was not executed and registered in their names, therefore, the sale was not complete and the disputed land was not pre‑emptible and the entry in the Revenue Record even that of mutation is a recognition of sale and not a sale itself. In the present case there is no sale and non‑registration of decree for specific performance either by the vendor or by the Court the land is not pre‑emptible as the decree for specific performance declares a right of the petitioners over the property in question and does not confer the title to the petitioners. The suit itself was liable to be dismissed. Learned counsel for the petitioners has relied on "Hakim Enayat Ullah v. Khalil Ullah Khan and another" (AIR 1938 Allahabad 432), "Muhammad Ishaq v. Muhammad Siddique" (PLD 1975 Lahore 909), "Abdul Majid v. .Nizam Din and another" (PLD 1959 Lahore 273), "Nur Ahmad and others v. B. Muhammad Ibrahim and another" (PLD 1953 Lahore 470), Muhammad Wazir v. Ch. Jahangiri Mal and others" (PLD 1949 Lahore 1), 'Muhammad Nawaz v. Fida Hussain and another" (1994 CLC 1487), "Syed Manzoor Hussain Shah v. Khurshid Ahmad and 4 others" (1989 CLC 1372).

The crux of all these judgments is that a decree for specific performance declares the rights of the parties and entitles them to have a title transferred in accordance with the agreement to sell on the failure of the party to perform to the part of agreement Court itself performs those‑ obligations by tarrying out the act required to be done. Title remains vested in the vendor as long as it is not executed. He has further relied on "The P&T Co operative Housing Society Ltd., Karachi v. Ch. Manzoor Ahmed Sahi" (PLD 1961 (W.P.) Karachi 53), "Nasir and others v. Muhammad Ali and others" (PLD 1961 (W.P.) Rev. 41), and "Abdul Qadir and others v. Ghulam Qadir (1996 CLC 1216). The ~ crux of all these judgments is, that a mere entry in the Revenue Record does not confer a right or title, it is just for .fiscal purposes and does not determine rights of parties nor it confers any right or title or interest, therefore, the suit for pre‑emption was premature and the learned Courts below have ignored all these important and material facts and the judgments delivered are outcome of error of law.

3. Learned counsel for the respondent submitted that the right of pre emption is a right of substitution as the pre‑emptor placed himself into the shoes of the vendee and of the vendees' title is defective; the pre‑emptor will get a defective title. The right of pre‑emption arises in case of sale or exchange, if the transaction amounts to a sale in fact, then notwithstanding it is in the form prescribed in section 54 of the Transfer of Property Act or not the right of pre‑emptor will come into operation in a matter where sale of land has taken place whether a title based on the transaction or not. Relies on "Abdul Karim v. Fazal Muhammad Shah" (PLD 1967 SC 411). Further submitted that a decree of specific performance does no more than direct the parties to perform their respective obligations under the agreement, ‑relies on "Muhammad Bakhsh v. Zia Ullah and others" (1983 SCMR 988) where it is held that Order 21, Rules 32 and 34, C.P.C., a sale in execution of specific performance is entirely different from a voluntary sale for the purposes of pre‑emption. A decree for specific performance is a substitution for the person who is not at fault, as such, act must be deemed to be performed by the Order of the Court. Section 3(5) of the Pre‑emption Act specifically holds:‑‑

"A sale in execution of a decree for money or an order of a Civil, Criminal or Revenue Court or a Revenue Officer. "

It is only the voluntary sale interest for the purposes of pre‑emption. It does not mean necessary that decree be executed and where there is a sale in fact, it depends on the intention of the parties as the pre‑emptor will avail the right under section 53 of the Transfer of Property Act where there is a sale within the meaning of law of pre‑emption under which the right of pre‑emption is claimed, therefore, the definition of sale in section 3(5) of the Pre‑emption Act is vital. The method of transfer by mutation is a valid method of transfer of agricultural land. The right of pre‑emption one of substitution the pre emptor would be just as come in possession as vendor and mere failure of parties to comply with the .requirement of section 54 of the Transfer of Property Act will not alter the nature of transaction entered into between the parties. Even oral sale of property of more than Rs.100 in value in contravention of section 54 of the Transfer of Property Act ‑is not immune to exercise of right of pre‑emption, "Gullan v. Muhammad Ramzan and others" (PLD 1962 (W.P.) BJ 33) and "Muhammad Nawaz v. Fida Hussain and others" (1994 CLC 1487). An oral sale is complete if it is followed by mutation, it becomes the evidence of oral sale. He has further relied on "Malik Tahir Ahmad and another v. Tanseef7ur‑Rehman and another" (1988 SCMR 1861), where it is held that section 3(5) read with Article 185(3) of Constitution of Pakistan Pre‑emption sale by mutation in pursuance of decree for specific performance whether pre‑emptible transfer of land by Judgment debtor/vendor through mutation in compliance with the decree itself being a gale which had not been excluded by definition of sale in section 3(5) of Act (I of 1913), held was rightly pre‑empted leave to appeal was refused.

4. The learned counsel further relied on "Malik Hussain and others v. Lala Ram Chand and others" (PLD 1970 SC 299), where it is held that if the Court finds that the price mentioned in the deed of sale was in fact, paid, then, the pre‑emptor in order to pre‑empt shall be required to pay that price, and it shall not be necessary for the Court to determine the market value of the property and fix the price for the purpose of pre‑emption. He has further relied on "Abdul Majid v. Tora Baz Khan" (PLD 1975 Lahore 628), "Wali Muhammad v. Dost Muhammad" (1986 CLC 1220), "Khair Din (deceased) v. Haji Muhammad Din (deceased) and others" (1987 SCMR 1131).

5. I have heard the learned counsel for the parties and carefully perused the record. From the copy of plaint received by the learned counsel for the petitioners Muhammad Sharif and Muhammad Bashir sons of Ghulam Muhammad filed a suit for specific performance against Imam Din about property bearding Khasra Nos.267, 301, 302, 306, 394 and. 433 measuring 26 Kanals and 1 Marla on the basis of agreement, dated 12‑7‑1972 and it was averred in paragraph 2 that according to the conditions of the agreement Rs.2,500 was received from the plaintiffs by the defendant. The prayer went like this:

The suit for possession through pre‑emption was filed by the respondent Muhammad Siddique against the petitioners Muhammad Sharif and Muhammad Bashir on the basis of his superior right of pre‑emption being "Yakjaddi" and it was averred in paragraph 1 that the petitioners/defendants obtained this land in consideration of Rs.4.,000 through a decree for specific performance, dated 30‑9‑1975 from Muhammad Sharif etc. and this transaction being sale is pre‑emptible. This defendant filed written statement objecting to the valuation of court‑fee, the suit being incompetent and the transaction being "Benami" and that the decree for specific performance is not executed, therefore, the suit is premature. Following issues were framed by the learned trial Court:‑‑ .

(i) Whether the land in dispute is not pre‑emptible? OPD.

(ii) Whether the suit is properly valued for the purposes of court‑fee and jurisdiction? OPP.

(iii) Whether the suit is for partial pre‑emption ? OPD.

(iv) Whether the plaintiff has superior right of pre‑emption ? OPP.

(iv‑A) Whether the suit of plaintiff is benami and for benefit of Muhammad Yaqoob? If so, with what effect? OPD.

(iv‑B) Whether the sale was not complete, if so, with what effect ?

(v) Relief.

6. Parties led their evidence. P.W.1 Asghar Ali stated on oath that Exh.P.4 is prepared by him. P.W.2 is Muhammad Siddique plaintiff who gave evidence in respect of his superior right of pre‑emption. He expressly negated that transaction is a benami transaction, however, he admitted that the property was mortgaged and even the mortgage money was added in the consideration of sale transaction. He further stated that Muhammad Sharif and Imam Din are his predecessors, he has taken the Shajra. The registree was completed through Court and he had taken copy of the mutation. Exh.P.l, copy of Parcha Khatooni, Exh.P.2 copy of judgment and decree, dated 30‑1‑1975, Exh.P.3 copy of Shajranasab were produced.

D.W.1 Baloch son of Jan Muhammad appeared and deposed on oath that the disputed property was obtained through decree in consideration of Rs.4,000. The disputed property was mortgaged with them. The sale consideration was different. The ancestors of the plaintiff have gone 14/15 years from their village and the vendees have also gone. The suit expenses were borne by one Yaqoob. This property was mortgaged with him. It was redeemed by the defendant. The father of Siddique was Imam Din. The suit was filed as the agreement was violated. The defendant produced copy of report Roznamcha Exh.D.I and concluded the evidence.

7. I have also carefully perused the EXh.D.I, this is proceeding of possession through warrant issued by Rao Akbar Ali; learned Civil Judge, Narowal in Civil Suit, No.383 of 1975 issued on 17‑10‑1975 in favour of Muhammad Sharif and Muhammad Bashir sons of Ghulam Muhammad decree holders. ( ,:‑, 16D 1~ ) was given to the petitioners and the proceeding was recorded in Rapat Roznamcha Exh.D.l, dated 21‑10‑1975 and the Mutation No.17 was sanctioned. The learned trial Court after discussing the issue‑wise finding observed that the word "sale" contemplated in the Punjab Pre‑emption Act means the transfer of ownership in exchange of a price. The mode of sale has not been contemplated in the Punjab Pre emption Act but the nature of transaction is taken into consideration to determine whether the sale is complete or not. For this purpose the intention of the parties are looked into which are to be gathered from the statement of the parties and their acts at the time of transaction and thereafter. The registration of sale‑deed has not been made a prerequisite for completion of sale for the purposes of right of pre‑emption. The acts of the decree‑holder and judgment‑debtor after passing of the decree by the Court is to be taken into consideration. The mutation Exh.P.7 was sanctioned in favour of the defendants on the basis of the decree at the instance of the defendant and copy of the Jamabandi Exh.P.6 also shows that the defendants are owners of the property in dispute and it is admitted by Muhammad Sharif D.W.3 that the defendants are owners in possession of the property in dispute and that he has ceased to be owner of the property in dispute, therefore, Issues Nos.3 and 4‑B, were decided against the defendant for the purpose of right of pre emption. Issues Nos.l and 2 were decided in favour of the plaintiff and Issues Nos.4 and 4‑A were decided against the defendants.

8. On appeal the learned Appellate Court while discussing all the issues as well as law on the material moot point confirmed the judgment of the learned trial Court on the aforesaid issues holding that although a decree for specific performance in respect of the suit land was passed in favour of the defendant/appellant by the Court of competent jurisdiction a mutation was sanctioned in favour of the appellant which stands proved through copy of Exh.P.7. It is further proved by the Jamabandi Exh.P.6, that the petitioner/defendants are shown as owners of the suit land and the statement of Muhammad Sharif P.W.3, one of the vendors regarding payment of price as consideration about the suit land is also not disputed and the relevant entry in the Revenue Record in view of changed possession of ownership of these relevant and attending circumstances reached to the conclusion that the Court decree for specific performance in consequence of which the mutation was sanctioned in favour of the defendants/appellants and their entry in the Revenue Record is a sale.

9. After carefully keeping into consideration all the relevant facts and circumstances of this case Order 20, Rule 14 is reproduced:‑‑

Decree in Pre‑emption suits. ‑‑ .

"(i) Where the Court decrees a claim to pre‑emption in respect of a particular sale of property and the purchase money has not been paid . into Court, the decree shall‑‑

(a) specify a day on or before which the purchase money, shall be so paid, and

(b) direct that on payment into Court of such purchase‑money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase‑money and the cost (if any) are not so paid, the suit shall be dismissed with costs."

From the provision of Order 20, Rule 14, C.P.C. this is established that pre emption is a right of substitution in place of, the vendee. In the suit for specific performance photostat copy of which has been placed before this Court, the parties have prayed for the possession of the property after payment of the remaining money. In Exh.D.I warrant of possession seems to be issued by the Court of Rao Akbar Ali, learned Civil Judge in Civil Suit No.383 of 1975 on 17‑10‑1975. All these proceedings are incorporated in the copy of Roznamcha Waqiati on 21‑10‑1975. The mutation Exh.P.7 shows that:‑‑

Jamabandi for the year 1977‑78 mentions the Mutations Nos. 17, 1 and 18. Mutation No. l is about sale of right of mortgage 17 is sale and 18 is redemption of mortgage. In the ownership column Muhammad Sharif and Muhammad Bashir are recorded as owners. D.W.3 Muhammad Sharif has categorically stated that although no registered sale‑deed was executed after the decree of specific performance of agreement to sell but the defendants are in possession of the disputed property as owners in possession and we are no more than owners after the issuance of decree. In "Malik Tahir Ahmad and others v. Tanseef ur Rehman and others" (.1988 SCMR.1861) it was held that pre‑emption sale by mutation in purusance of decree for specific performance and transfer of land by judgment‑debtor/vendor through `mutation in compliance with the decree itself being a sale is not excluded by definition of sale in section 3(5) of the Act, held, was rightly pre7empted leave to appeal refused. In the same, book on page 1016 it is held that Order 20, Rule 14, C.P.C. and sections 4 and 15 of the Punjab Pre‑emption Act (I of 1913) right of the pre‑emptor to pre‑empt property without getting decree executed and without vendees' withdrawing money deposited for his benefit execution of decree and withdrawal of money or its payment to vendees, held was not relevant or of consequence for vesting of title in pre‑emptor. Order 20, Rule 14, C.P.C., which is specifically provided in that rule that title in the property shall be deemed to have accrued from the date of such payment so, execution of the decree and the withdrawal of money or its payment to the vendee is not relevant or of consequence for vesting of title in pre‑emptor.

10. For the foregoing reasons this Court has come to the conclusion that the sale in this case is complete. No intervention is needed in the concurrent findings arrived at by the Courts below, the revision petition is dismissed. No order as to costs.

Q.M.H./M.A.K./M‑1254/L Revision dismissed.