FURQAN AHMAD KHAN vs ABDUR REHMAN And Other
This matter concerns a petition for leave to appeal against a judgment of the Peshawar High Court, which dismissed a revision petition regarding a pre-emption suit. The dispute arose when the original owners entered into an agreement to sell land with the petitioner's father (respondent No. 2). Subsequently, respondent No. 1 filed a pre-emption suit against respondent No. 2, treating the agreement to sell as a completed sale. During the pendency of this suit, the petitioner purchased the land from the original owners through respondent No. 2, acting as their attorney. The petitioner was impleaded as a defendant in the pre-emption suit, which was decreed against him, with subsequent appeals and revisions being dismissed. The core legal question is whether an agreement to sell constitutes a sale sufficient to trigger a right of pre-emption, and whether the petitioner's subsequent purchase was correctly linked to that initial agreement. The Supreme Court granted leave to appeal, noting that the contentions regarding the nature of the transaction and the alleged misreading of evidence by lower courts require further judicial consideration.
- Does an agreement to sell constitute a sale sufficient to trigger a right of pre-emption?
- Can a transaction be considered a sale if only possession and partial payment have occurred?
- Does the purchase of property during the pendency of a pre-emption suit against an agreement-to-sell holder constitute a valid transfer?
ORDER
1. SH. RIAZ AHMAD, J.---The petitioner seeks leave to appeal against the judgment dated 29-6-1995 delivered by a learned Judge of the Peshawar High Court at Dera Ismail Khan, whereby, revision petition filed by the petitioner calling in question the orders of the Courts below was dismissed. The facts giving rise to the institution of this petition are that respondents 3 to 11, the owners of the.
2. Disputed land entered into an agreement to sell the said land with respondent No.2, father of the petitioner, vide agreement dated 10-4-1988. Respondent No. l treating the agreement to sell as sale and on the basis of his superior right of pre-emption filed a suit for possession through ore- emption against respondent No.2. Pending finalization of sale and the disposal of suit, the petitioner purchased the disputed land and on 23-12-1989, Mutations Nos. 1253 and 1254 were entered in his favour. The transaction of sale in favour of the petitioner was completed through respondent No.2 as attorney of respondents Nos. 3 to 11, the vendees.
3. Respondent No.1 who had already filed a suit, instead of filing a separate suit, impleaded the petitioner as defendant in the suit. The petitioner as defendant contested the suit but it was decreed by the learned trial Judge vide judgment dated 25-5-1993. An appeal calling in question the aforesaid judgment and decree was also dismissed vide judgment and decree dated 25-9- 1994 by the lower Appellate Court. The petitioner then invoked the revisional jurisdiction of Peshawar High Court at Dera Ismail Khan, but the said revision was also dismissed vide judgment impugned. Hence the present petition for leave to appeal.
2. It is contended before us that the agreement to sell in favour of respondent No.2 cannot be equated as sale because the vendor still retains the interest in the property and, therefore, the Courts below erred while overlooking that the disputed property did not vest in respondent No.2 and, therefore, was not pre-emptiable. It is further contended that the sale in favour of the petitioner has been wrongly construed as transaction connected with the agreement to sell and both the Courts below reaching this conclusion have misread the evidence. It is next contended that the transaction between respondent No. 2 and respondents Nos.3 to 11 was a sale is not supported by any evidence and merely delivery of possession and partial payment of price would not constitute the complete transaction of sale. All these points and whether the sale in favour of the petitioner was wrongly and incorrectly described as transaction connected with the agreement to sell need consideration. Accordingly, we grant leave to appeal.
4. The status quo order granted on 8-10-1995 shall remain operative until disposed of appeal.