RASAAL HASAN SYED, J.---Order dated 05.11.2018 of the learned Addl. District Judge, Multan whereby the case was remanded to the learned Civil Judge for trial of the suit in accordance with law, is the subject-matter of this appeal.
2. Respondent instituted a suit claiming that through agreement dated 06.6.201 1, plot No.16 at Officers Colony Multan, was purchased by appellants Nos.1 to 7 for Rs.82,50,000/- and that he having superior right of, pre- emption, made requisite Talbs and, being so, he was entitled to a decree for possession through pre-emption.
Appellants Nos.1 to 7 applied for rejection of plaint through an application under Order VII, Rule 11, C.P.C. raising the plea that only occupancy rights were transferred; the plot form part of the property vested in Multan Development Authority (MDA); certificate of ownership had not been issued and as such the transaction did not amount to sale so as to activate any right to pre-empt the transaction and that the suit was barred by provisions of section 23 of The Punjab Pre-emption Act, 1991. The application under Order VII, Rule 11, C.P.C. found favour with the learned trial court which rejected the plaint vide order dated 06.2.2017. In appeal, the order was set aside and the case remanded to the learned trial court in accordance with law .
3. Arguments from both sides pro and contra have been heard and relevant record annexed with the appeal was carefully perused.
4. The main emphasis of the appellants was that the plot vested in Multan Development Authority (MDA), its ownership rights had not been transferred, only occupancy rights were assigned to the allottee who in turn, transferred the same in favour of appellants Nos. 1 to 7 and that no registered sale-deed was yet executed; the impugned transaction did not fall within the purview of sale and that the property being still in the ownership of Multan Development Authority (MDA), the provisions of section 23(b) of The Punja b Pre-emption Act, 1991 would operate as a bar against maintainability of suit for pre-emption. The plea raised by the appellants Nos.1 to 7 found favour with the learned trial court which recorded findings to the effect that the trans action was not a sale and that it was consequently could not be pre-empted. Learned appellate court taking the contrary view observed that the suit was not barred by law and that the plaint did disclose cause of action. The finding s of the learned trial court were accordingly set aside and the case was remanded for further trial in accordance with law. It appears that while accepting the appeal, the learned Addl. District Judge was principally influenced by the rule in "Abdul Karim v.
Fazal Muhammad Shah" (PLD 1967 SC 411) to conclude that the transaction was sale which could be pre- empted under the provisions of the Punjab Pre-emption Act, 1991 while the learned trial court mainly relied on "Muhammad Siddique and others v. Muhammad Sharif and others" (2012 SCMR 1387 ) to infer that the suit was not maintainable. The cases referred supra related to a dispute that arose under the provisions of The Punjab Pre-emption Act, 1913 and not under the provisions of The Punjab Pre-emption Act, 1991. In the case of Abdul Karim supra while considering the provisions of sections 3 and 4 of The Punjab Pre-emp tion Act, 1913 and section 54 of The Transfer of Property Act, 1882, the honourable Supreme Court observed to the effect that the right of pre- emption was a right of substitution and that the person seeking to pre-empt could be put into the shoes of the stranger who purchased the land and that mere failure of the parties to comply with the requirement of section 54 of the Transfer of Property Act, 1882 as to the manner in which transfer should be made cannot alter the nature of transaction intended to be entered into between the vendee and vendor or affect the rights of the pre-emptor in respect thereof and that if the transaction amounts to sale then notwithstanding that it is not in the form prescribed by section 54 ibid. the right of pre-emption will come into operation and that even under the said provision the transaction is not altogether void for the defect is curable by getting the document drawn up and registered to perfect the inchoate title of the vendee which perfection could be insisted upon and that at any rate there was enforceable contract of sale even under the Transfer of Property Act, 1882 and even such imperfect transaction could give rise to equity in favour of the buyer and if he had paid the price he would have a charge on the property for the amount paid.
5. The case of Muhammad Siddique supra was in respect of the interpretation and application of two notifications issued under section 8(2) of The Punjab Pre-emption Act, 1913 which empowered the Board of Revenue to exempt any area from the application of the Punjab Pre-emption Act, 1913. In terms of the notification No.196-B dated 28.2.1944 it was specified that no right of pre-emption shall exist in respect of any Local Area to which The Colonization of Government Lands (Punjab) Act, 1912 had been or may hereafter be made applicable. Subsequent notification No.74 dated 12.6.1944 provided that under section 8(2) of the Punjab Pre-emption Act, 1913 which falls enforce in the State, the government of Bahawalpur passed an order that no suit for pre-emption would lie to land included in the Colony/Colony Area to which Colonization of Government Lands (Punjab) Act, 1912 had been made applicable or be applied thereafter . Considering the scope and effect of notification s, it was observed that once the land was declared as "Colony Area" and subjected to the Colonization of Government Lands (Punjab) Act, 1912 it will remain subject to the said Act and would thus be exempted from the pre-emption, the other two notifications notwithstanding that the property had similarly become privately owned. The case of "Aziz Hussain and 2 others v. Rashid Ahmad and 3 others" (1992 SCMR 1018 ) was also referred where it was observed to the effect that if full price has been paid, the transferee acquired proprietary interest in the land and "sale" of such land by the grantee will be sale of agricultural land which will be pre-emptible.
6. The issue in those cases arose out of the suit instituted under The Punjab Pre-emption Act, 1913, which is not the case at hand. The instant case stems from the transaction that was being pre-empted under the provisions of Punjab Pre-emption Act, 1991 on the plea that it was "sale" which the appellant s claim to be simply transfer of occupancy right. Section 5 of the Punjab Pre-emption Act contemplates that the right of pre-emption shall arise in case of "sale" of immovable property . For determination of the issue involved, one needs to consider the provision of The Punjab Pre-emption Act, 1991 where the term "sale" has been specifically defined in Section 2(d) which reads as under:- 2(d) "sale" means permanent transfer of the ownership of an immovable property in exchange for valuable consideration and includes transfer of an immovable property by way of 'hiba bil-iwaz' or 'hiba' ba shart-ul-iwaz' , but does not include?
(i) Transfer of an immovable property though inheritance or will or gift, other than 'hiba bil-iwaz' or hiba ba-shart-ul- iwaz;
(ii) A sale in execution of a decree for money or of any order of civil, criminal, revenue or any other Court or a Revenue Of ficer or any local authority;
(iii) Exchange of agricultural land; and
(iv) transfer of an immovable property for a consideration other than valuable consideration, such as the transfer of an immovable property by way of dower or composition in a murder or hurt case."
7. It is manifest from the definition of "sale" that it is not exactly the same as given in section 54 of the Transfer of Property Act, 1882. Section 2(d) ibid provides for the permanent transfer of ownership to make it pre-emptible. The question as to what transaction could constitute a "sale" was also considered in the case "Zulfiqar and others v.
Shandat Khan" (PLD 2007 SC 582 ) wherein it was observed as under: "11. As far as the controversy on the merits of the case is concerned, we will like to observe at the outset that it has never been the case of the pre-emptor that the sale was complete any time before attestation of the mutations. In fact, his case in the plaint was that he came to know of the sales on 18.8.1995 on which date, Zulfiqar one of the vendees was found ploughing the disputed land, who informed the respondent of the sales on which Talb-e- Muwathibat was made. However , in para. 5 of the plaint it was averred that copy of Part Patwar supplied to the respondent showed 17th August, 1995 as the date on which the mutations were attested. In this paragraph, it was also stated that after obtaining Part Sarkar the date of attestation of mutation was found to be 24.8.1995. The first question, therefore, which was required to be considered is the effect of absence of a specific plea that the sale had been completed before attestation of the mutations and the second is as to whether a mere report in Roznamcha. Waqiati amounted to a sale and whether a transaction amounted to sale is to be examined with reference to Islamic Law or the General Law contained in the Transfer of Property Act or any other statute.
12. As far as the first question is concerned, there is ample authority that unless a case is set up in pleadings, decision of the case cannot possibly rest on such a plea. This has been the consistent law with the rationale that the other party is not be taken by surprise. The contents of the plaint show that the pre-emptor claimed to have been misled by copy of Part Patwar of the mutations which showed 17.8.1995 as the date of attestation of the two mutations. In fact going through the plaint carefully , plaintif fs own case was that Talb-e-Mawathibat was made on the basis of the copies of the mutation supplied by Patwari showing 17th September , 1995 as the date of attestation of the mutations. It has never been his case that the sale had been completed before attestation of the mutation on a particular date necessitating Talb-e-Mawathibat . We say it with respect to the learned Single Judge, that concurrent findings of the two courts could not have been upset on the groun d that when Talb-e-Mawathibat was made sale had already taken place. As far as the second question is concer ned, we will like to observe that sections 3 and 4 of the Punjab Pre-empti on Act, 1991, are a complete answer . According to former section, "in the interpretation and the application of the provisions of this Act, the Court shall seek guidance from the Holy Quran and Sunnah " and according to the latter section, "The provisions of this Act shall have effect notwithstanding anything in other law for the time being in force" . Sale has been denied in section 2(d) which is as follows: "2. (a) to (c) xxxxxxxxxxxx (d) "sale" means permanent transfer of the ownership of an immovable property in exchange for valuable consideration and includes transfer of the immovable property by way of Hiba-bil-Iwaz or Hiba-ba-Shart al-Iwaz but does not include.
(i) to (v) xxxxxxxxxxxxx
13. A perusal of the above definition show s that it is not exactly the same which is mentioned in section 54 of the Transfer of Property Act. We are of the view that the expression "permanent transfer" in the definition of sale in this Act connotes a fully consummated sale and it has to be interpreted in the light of Injunctions of Islam as laid down in Monajal Huq v. Shafiullah and another (PLD 1964 Dacca 640). The sale is brought into existence not only on payment of the sale consideration but also transfer of possession. From perusal of the record, we find that Roznamcha Waqiati was not produced instead reliance was placed on a note incorporated on the mutation sheet.
The aforesaid note was not even primary evidence of the contents of Roznamcha Waqiati. We have also noticed that neither Roznamcha Waqiati was produced nor Muhammad Azeem, the vendor was examined. The reference to Roznamcha Waqiati on the mutation sheet did not constitute any evidence at all of the sale. There was no evidence that sale consideration and possession had passed on the vendees before attestation of the mutation.
We will like to note here the views of Kashi Prasad Saksena as to time of enforcement and establishment of the pre-emption right from his treatises titled "Muslim Law as Administered in India and Pakistan":-- "The time for the enforcement of the right to pre-empt and the formalities which establish this right are distinct question in the Muslim system. The question, as regards the time of enforcement of the right of pre-emption, has assumed importance, as a Muslim cannot have his right established without making the 'demands' which must be made after the sale is complete. The sale, according to the Muslim Law, is comple tely by payment of the price and the delivery of the possession by the vendor to the vendee, but in some cases, under the Transfer of Property Act, it is not complete unless made by a registered instrument."
In Begum v. Muhammad Yaqoob (16 Allahabad 444) a Full Bench of the Allahbad High Court held that sale must be complete according to Muslim Law and not in accordance with General law. Further , in view of express provisions of sections 3 and 4 noted above completion of sale is to be seen in the light of principles of Islamic Law and in the absence of specific plea and the evidence of payment of sale cons ideration to the vendor we are constrained to hold that the oral sale in this case shall be deemed to have been completed on attestation of the mutation and not before any date prior thereto.
We may also like to refer here to Parumal and others v. Wadro Mahomed ali and others (17 IC 39) according to which assertion of right of pre-emption before completion of the sale is inef fectual.
8. Considering the rule in the cases herein and also definition of "sale" as incorporated in The Punjab Pre-emption Act, 1991 it is manifest that prerequisite of "sale" will be permanent transfer of ownership of immovable property in exchange for valuable consideration. The facts of the instant case, if considered , it is plaint that the parties are seriously in issue as to the nature of transaction and the rights assigned in terms of the agreement. Appellants claim that it was not a transfer of proprietary interest and was only a transfer of possessory right and that the title would confer only when the sale certificate of ownership is issued 'by Multan Development Authority (MDA) and that as such certificate had neither been issued in favour of the transferer nor in their favour , as such the transaction was not "sale" so as to attract the in disability of pre-emptive right. Seco nd part of the plea was that the property still vests in Multan Development Authority (MDA) and that section 23 of The Punjab Pre-emption Act, 1991 bars the maintainability of the suit. Placing reliance on this provision the appellants claimed that the suit being not maintainable, the plaint was liable to be rejected. Section 23 of the Punjab Pre-emption Act, 1991 provides as under:
23. No right of pre-emption in respect of certain properties .---(1) No right of pre-emption shall exist in respect of sale of--
(a) waqf property or property used for charitable, religious or public purpose; and
(b) Property owned by the Federal or a Provincial Government or a local authority; and
(2) The property acquired by the Federal or a Provincial Government or a local authority in pursuance of any law shall not be pre-emptible."
9. Provisions of section 23 (2) of the Punjab Pre-emption Act, 1991 were considered in the case of "Muhammad Ismail Qureshi and others v. Government of Punjab and others " (PLD 1991 FSC 80) where it was observed to the effect that the same were not repugnant to the Injunctions of Islam as the property which was being pre-empted must be owned by a person.
10. Another aspect of section 23 of the Act ibid was noted in the case of "Malik Muzaf far Ahmed v. Mjlis-e-Ilmi Society through Muhammad Zubair " (PLD 2016 SC 207) where the honourable Supreme Court observed to the effect that after reading the provisions of section 23 of The Punjab Pre-emption Act, 1991 and the entire scheme of law there could be no doubt that the word "purchase" which was mentioned in the similar provision of the N.W.F.P.
Pre-emption Act, 1987 had been omitted from the said provision of the Punjab Pre-emption Act, 1991 due to mistake albeit inadvertently on part of the drafts-person and while following the construction/ interpretation of Statute it was felt justified to supply the omission rendering said provision of law meaningful, workable and sensible so as to give effect to the intent of the legislature and accordingly the word "purchase" must be read in the provision of section 23 of The Punjab Pre-emption Act, 1991 in the headnote appended to it so as to consider section 23(1) to include both "sale" and "purchase".
11. Considering the matter in light of the rule in the cases supra, it is discernable that in the instant case parties were seriously at issue as to whether a "sale" has taken place or it was transfer of mere possessory rights without assigning any proprietary interest. Appellants claimed that the property is still vested in Multan Development Authority (MDA), certificate of ownership has so far not been issued and that the allottee who assigned his right in their favour did not have any title and only conveyed occupancy right while the claim of the respondent that the transfer of title had taken place and that Multan Development Authority (MDA) had no concern with the title which vested in the private parties. The controversy which emerges from the pleadings could only be resolved after relevant documents are brought on record in evidence in accordance with law, record of Multan Development Authority (MDA) is produced in evidence and that the terms and conditions of assigning of right under the scheme of Multan Development Authority (MDA) are duly produced in evidence. Anothe r question which would require consideration is as to whether transaction could be deemed to be in respect of property acquired or owned by Multan Development Authority (MDA) and, if so, could the suit be maintained in view of the bar of section 23(2) of the Act. In view of the serious factual controversy , the rejection of plaint at this stage in the circumstances was not permissible nor conclusive view as to the nature of transaction could be taken without evidence. Proper course was to frame issue, allow the parties to lead evidence and, thereafter , determine the question as to the nature of the transaction and pre-emptability thereof in light of section 23 of The Punjab Pre-emption Act, 1991.
12. For the purposes of considering the application of provision of Order VII, Rule 11, C.P.C. only contents of the plaint could be looked into and if the same disclose cause of action and do not attract the application of any legal bar qua maintainability of the suit, the application would not be rejected. Perusal of the plaint shows that the claimed "sale" of the idiot in favour of appellants Nos.1 to 7 and alleged that it was pre-emptible and that there was a superior right to pre-empt the "sale". It was the defence of the appellant that the transaction was not a sale but only a transfer of possessory rights and that the property still vested in Multan Development Authority (MDA) and, therefore, the suit was barred under section 23(b) of The Punjab Pre-emption Act, 1991. It is a rule for considering the application of Order VII, Rule 11, C.P.C., the plaint alone needs to be considered and that the same needs to be accepted as gospel truth unless proved otherwise through proper evidence and that in the event of factual controversy the matter shall be decided after evidence. In "Jewan and 7 others v. Federation of Pakistan through Secretary , Revenue, Islamabad and 2 others" (1994 SCMR 826) the honourable Supreme Court observed as follows: "...W ith regard to the observation of the Courts below that there were earlier proce edings between the parties and therefore, the present suit instituted by the appellants was barred on the principle of the res judicata may only observe that the record of the earlier proceeding is to be brought before the Court on record in accordance with law and only then it is to be considered whether the controversy decided in the earlier proceedings is the same which is agitated by the appellants in the present suit. Until such time the documents relating to earlier proceedings were brought on record in accordance with law and the matter was thoroughly examined with regard to controversy in the two proceedings, it was not possible for the Courts below to reach the conclusi on that the present suit involves the same controversy which was decided in the earlier proceedings..."
13. In "Saleem Malik v. Pakistan Cricket Board (PCB) and 2 others" (PLD 2008 SC 650) it was observed by the honourable Supreme Court to the effect that it was settled law that in case of controversy question of fact and law, the provision of Order VII, Rule 11, C.P.C. cannot be invoked rather the proper course for the court in such cases is to frame issue on such question and decide the same on merits in light of evidence in accordance with law and that rejection of plaint on technical grounds would amount to deprive a person to his legitimate right to avail the legal remedy for undoing the wrong done in respect of his legitimate right. In "Muhammad Haji alias Haji Mahmood v. Chaudhry Taj Din" ,(2004 CLC 1050) it was observed by this Court to the effect that the dispute as to whether the land subject-matter of decree in suit for specific performance by the respondent, permanently vested in the petitioner or not amounted to permanent transfer of ownership of the said land in his favour , was a matter which could not be determined without recording of evidence and for this purpose issues having been framed, the parties could have been given a chance to lead evidence in support of their respective positions.
14. In the circumstances noted supra the order of rejection of plaint by the learned trial court outright, without recording evidence was not sustainable nor findings of the learned Addl. District Judge as to the character and nature of the transaction as also maintainability of suit without allowing evidence, could be affirmed. Proper course in this case was to remand the case for decision afresh on the question of maintainability of the suit after opportunity of evidence to the parties and by attending to the questions as observed hereinabove. The impugned order is, accordingly , modified and the case is remanded to the learned Civil Judg e for determination of the issue involved in light of the observations hereinabove and by allowing opportunity of evidence to the parties. Order accordingly . Appeal is allowed in above terms.