NOOR HUSSAIN vs BASHIR AHMAD and anothers

' ABDUR REHMAN KHAN, J.---Bashir Ahmad, respondent No,1 filed suit for possession through pre- emption in respect of sale of the disputed land which was brought about by transfer of his right in the disputed land which the vendor had obtained by virtue of decree in a preemption case decided in his favour on 6-12-1979. Another suit was also instituted by Muhammad Ashraf who happened to be son of the vendor. The learned trial Court dismissed both the suits holding that transfer of decretal right was not a sale and, therefore, was not pre-emptible. Bashir Ahmad respondent challenged the judgment of the trial Court in appeal while the rival pre-emptor did not do so. The learned appellant Court by judgment, dated 11-12-1980, held that for all intents and purposes the land had been sold and not that the decretal rights had only been transferred, therefore, the transaction was held to be sale and as such pre-emptible. As the trial Court had already held the respondent to be possessed of superior right of preemption, therefore, by accepting the appeal the suit of the respondent was decreed. The High Court by the impugned judgment affirmed the judgment of the appellate Court.

2. This petition has, therefore, been moved to call in question the legality of the impugned judgments.

3. The learned counsel appearing for the petitioner relied on 'Laskhari Mal v. Ishar Singh and another (94 Punjab Record 1902) and Shams-ud-Din v. Ghulam Hassan and others (42 Punjab Record 1917) and on the strength of the rule laid down in these judgments argued that the transfer of the rights, which had accrued to the decree-holder in term of the decree, could not be declared as sale as that was merely transfer of the rights tinder the decree to obtain the property after requirements of the decree were satisfied. In other words it was meant that it was sale of decree only and not the sale of the disputed land. It was added that even in case the petitioner could be termed as vendee of the land then in that case in absence of execution of the decree that decree had become in operative and unenforcible.

4. '94 Puniab Record 1902' is distinguishable as in that case the successful pre-emptor had not by the time he gifted the property to his grandson, deposited the pre-emption amount and, therefore, the donee was to comply with the terms of the decree by deposit of the decretal money and then by taking the possession of the land decreed. The facts in that case indicate that the successful pre-emptor/ decree-holder in that case had spent nothing of his own in the proceedings culminating in decree in his favour as all those expenses had been borne by the donee. But in the instant case the decree-holder had already paid purchase money and under Order XX, rule 14 of the C.P.C. The decree-holder had become full owner of the property and as such transfer of decretal rights was nothing but a sale of the land covered by the decree.

However, the device of transfer of rights under decree was adopted merely to frustrate any possible attempt of the prospective preemptor. But such a mechanization or plan cannot be recognized as valid and enforcible in law. '42 Punjab Record 1917' has also no relevance as in that case the decree-holder had in fact abandoned his rights accruing to him under the decree and this device of the decree-holder was, threfore, termed as sale of the decree only and not sale of the land. It was stated in that judgment:- "The sale certainly did not transfer the land as contended by Dr. Narang. The deed transferred the decree only, i,e,, that it gave the defendant-appellants the right to get the property by complying with the conditions of the decree. If then the sale was not a sale of the equity of redemption the appeal must fail."

' The conclusion reached in the said case was:-- "In these circumstances I am not prepared to hold that the decree sold created a judicial hypothec and that what was sold was the equity or redemption."

5. In a case reported in "Inzar Gul Said Anwar and another v. Hajab Gul Taza Gul and others (AIR 1941 Peshawar 26) a learned Division Bench after considering '94 Punjab Record 1902' and 42 Punjab Record 1917' held:-- "that the question of whether a sale was a sale of land or not must depend on the circumstances of each particular case, and that there was an out and out sale of land by virtue of the compromise inasmuch as the land had vested in the pre-emptor by virtue of the decree when he deposited Rs,1,800 in Court and he was at the time of the compromise the absolute owner of the property of which he could get possession by execution."

' Therefore, on consideration of the factual aspect of this case, the relevant law and the rule laid down in the cases referred to above it becomes clear that after deposit of purchase money the decree-holder had become complete owner of the land decreed in his favour and the transfer by him of his right under the decree was nothing but sale of the land of which he had become owner and, therefore, such a transfer was rightly held as a sale and pre-emptible.

5. We, therefore, find no merit in this petition and while refusing leave to appeal dismiss it.