TAHIR AHMAD Versus TANSEEF-UR-REHMAN

ORDER

1. MUHAMMAD AFZAL ZULLAH, J .‑‑Leave to appeal has been sought by the vendees' side in a pre‑emption matter, against the dismissal of their Regular Second Appeal by the High Court.

2. The sale pre‑empted by respondents' side, was successfully effected between the vendor and the vendee by a mutation, in pursuance of a decree for specific performance. Learned counsel has contended that such a sale is not pre‑emptible.

3. The same point was raised before the learned trial Court. It was repelled with the observation that it was "legally not correct. The answer is to be found in Nur Ahmad v. B. Muhammad Ibrahim PLD 1953 Lah. 470. This was also conceded in principle on behalf of the defendants (present petitioners)".

4. In first appeal also the position was the same including the concession of the petitioners' side. The High Court dealt with the argument as follows:‑---

5. "Learned counsel for the appellants thus vaguely argued that unless a registered sale‑deed was executed the decree for specific performance could not be treated to have been complied with and it was only that registered sale‑deed which could be pre‑empted. I am afraid the contention has no legal foundation. In the decree for specific performance the vendor was directed to sell the property in accordance with the agreement. Since the sale of land could be legally made orally through mutation and the vendor could comply with the decree without the decree‑holder having taken recourse to execution of proceedings, therefore, the transfer of land by the judgment- debtor/vendor through mutation in compliance with the decree was itself a sale: therefore it was rightly pre‑empted."

6. After hearing the learned counsel we have no reason to disagree with the learned lower Courts nor we have any reason to differ with the decision of the Lahore High Court in the full Bench case of Nur Ahmad. Amongst others, it has the support of the language used in subsection (5) of Section 3 of the Punjab Pre‑emption Act. The sale through registered deed or mutation in consequence of a decree for specific performance has not been excluded by definition of sale in Section 3(5).

7. No other point has been pressed. Leave to appeal accordingly is refused.

8. M.I. /T‑26/S Petition dismissed.