' This R.SA. Arises out of a suit for possession through pre-emption filed by Ilahee Bakhsh and Amir Bakhsh, deceased on 30-1-1980 in the Court of Civil Judge, Multan. Amir Bakhsh died issueless and his name was deleted by the trial Court vide order dated 8-11-1980. The property sought to be pre- empted was House No,847, Ward No,8 Mohallah Kotla Tolay Wala, Lahori Gate, Multan. The right of pre-emption was claimed on the ground of being owners of a house contiguous to the disputed house. The suit was resisted by the appellants who filed their written statements in the Court. On the pleadings of the parties the trial Court framed the following issues:--
(1) Whether this suit is barred by limitation?
(2) Whether the suit cannot proceed for preliminary objection No,3 in the written statement? OPD.
(3) Whether this suit has been improperly valued for the purpose of court fee and jurisdiction? OPD.
(4) Whether plaintiffs are estopped from bringing this suit? OPD.
(5) Whether the defendant-vendee has effected improvement on the suit property, if so, to what extent and with what effect? OPD.
(6) Whether the plaintiffs have superior right of pre-emption as against the defendant-vendee?
OPD.
(7) Whether the custom of pre-emption has been in existence in the locality in which the suit property is situated since the commencement of Punjab Pre-emption Act, 1913? OPD.
(8) Whether Rs, 11,500 was fixed in good faith or paid by the defendant-vendee to the vendor? OPD.
(9) What was the market value of the suit property at the time of its sale in favour of the defendant-vendee? OPP.
(10) Whether the defendant is entitled to recover special cost under section 35-A, C.P.C., if so, to what extent and with what effect? OPD.
(11) Relief."
' After recording evidence of the parties the suit was decreed by the trial Court vide its judgment and decree dated 14-7-1979. The parties filed two appeals; one by Abdul Ghaffar, appellant and the other by Ilahee Bakhah etc. (to challenge the findings on issue No,5 regarding improvements effected in the land). Both the appeals were dismissed by the learned Addl. District Judge, Multan vide judgment and decree dated 12-6-1986. Hence this RSA.
2. The learned counsel for the appellant urged that the decree of the Court was a sale within the meaning of law and was not pre-emptible. In this connection he placed reliance on Hakim Inayatullah v. Kalimullah Khan (AIR 1938 Allahabad 432) and Muhammad Ishaq v. Muhammad Siddique (PLD 1975 Lah.909). He further urged that in any case the decree was to be executed within 6 years, However, this was not done and the decree-holder lost his right, whatever available to him, by afflux of time. On the other hand the learned counsel for the respondent submitted that the Court's decree amounted to a sale and could be lawfully pre-empted. He placed reliance on Bostan Khan v. Daulat All alias Khan (1988 CLC 855). He further urged that even if the decree was not a sale the suit was competent to pre-empt whatever rights were available to the decree- holder. He pointed out that the pre-emptor's right was merely a right of substitution. He placed reliance on Abdul Karim v. Fazal Muhammad Shah (PLD 1967 SC 411) and Muhammad Ismail Khan v. Ghulam Haider (PLD 1988 Lah. 691). In reply the learned counsel for the respondents submitted that the rule of substitution was attracted only in cases of defective sales and not in those cases in which there was no sale at all. According to the learned counsel the declaratory decree could not amount to a defective sale. In this connection he placed reliance on Noor Muhammad and others v. B. Muhammad Ibrahim and another (PLD 1953 Lah. 470)
3. I have considered the contentions of the learned counsel for the parties and gone through the relevant record and the case-law cited by the learned counsel for the parties.
4. There is considerable force in the arguments of the learned counsel for the appellant that the decree passed in the suit for specific performance of a contract was a mere declaration of rights of the decree-holder and did not even amount to a defective sale. Even if it was a sale subject to the incidence of preemption now it was futile to decree the suit because the right enjoyed by the decree-holder came to an end by afflux of time. The decree was not executed within the period of limitation provided by the law. Hence it will be futile to decree the suit in favour of the pre- emptor/respondents. It was held in Hakim Inayatullah's case that a decree passed in a suit for specific performance of contract did not transfer title and the same continued to vest in the judgment-debtor. It was further held that the title could be transferred to the decree-holder and by execution of the sale-deed. In Muhammad Ishaq's case it was held as under:- "According to law a decree for specific performance only declares the right of decree-holder to have the property transferred in his favour and as long as the sale-deed is not executed in favour of the decree-holder by the judgment-debtor or by the Court the title of the property remains vested in the judgment-debtor."
' The Division Bench authority in the case of Darbar Patiala v. Firm Narain Das Gulab Singh (AIR 1938 Allahabad 434) was followed in this case. The judgment relied upon by the learned counsel for the respondent in the case of Bostan Khan is distinguishable because in that case the consent decree of the Court was preceded by an oral sale, after payment of full price to the owner. It was observed in the judgment. "It was a clear case of oral sale affirmed by a Court decree passed in a suit filed for recovery of possession." In view of the finding that it was "a clear case of sale", pre-emption suit was held to be competent. In the present case there was no sale at all which could be pre-empted.
Instead, there was a mere agreement to sell which was sought to be enforced through the Court.
The Court passed the decree for specific performance of the contract on 30-12-1982 in favour of respondent. This decree could have been executed within a period of six years, Admittedly the decree was never executed and thus whatever rights were created in favour of the decree-holder Ilahi Bakhsh never matured into sale through the execution of the decree. As held in AIR 1938 Allahabad 432 and PLD 1975 Lah. 909 no title is ipso facto transferred to the decree-holder in a suit for specific performance of the contract. There being no sale as contemplated under section 7(5) of the Punjab Pre-emption Act transferring ownership in favour of Ilahi Bakhsh, the suit for pre--- emption in respect of the decree dated 30-12-1982 was not maintainable. Hence the trial Court erred in law in decreeing the suit in favour of the pre-emptor/respondents. The appellate Court wrongly affirmed the decree of the trial Court.
5. In this view of the matter this appeal is allowed and the judgments and decrees of the Courts below are set aside, leaving the parties to bear their own costs.