1. ' MUHAMMAD AFZAL ZULLAH, C.J.---This direct appeal is from the judgment dated 21-12-1988 of the Lahore High Court; whereby the respondents' Regular Second Appeal was allowed and the appellants/plaintiffs/pre-emptors' suit was dismissed.
2. ' It is admitted that after this decree the possession was taken over by the vendees' side. Not only this the entire sale price had also been paid and according to respodents' learned counsel the payment was more than the sale price. This transaction was treated by the appellants' side as sale and was made subject-matter of a suit for pre-emption. It was dismissed. However, the District Court decreed it while, as stated above, the High Court reversed this decree. The appellants then brought this direct appeal before this Court.
3. ' The point which prevailed with the High Court raised from the respondents' side was that every decree for specific performance is ineffective until and unless a registered sale-deed is executed thereafter. The appellants' contention that a decree for specific performance with transfer of possession amounts to sale as envisaged by the Punjab Pre-emption Act, was repelled.
4. ' Learned counsel for the respondents while admitting that the possession had been transferred to the vendees and further that the sale price had also been paid, reiterated the point which prevailed with the High Court.
5. ' It was ruled in Malik Tahir Ahmad v. Tanseef-ur-Rehman (1988 SCM R 1861) that in Punjab, sale by mutation in pursuance of decree for specific performance amounts to such sale which is not excluded by the definition of sale in section 3 (5) of the Punjab Pre-emption Act (I of 1913) and that such a sale could be brought under a suit for pre-emption. The High Court view in the said case which was approved by the Supreme Court was as follows:-- "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. ' Regarding nature of transaction by way of mutation also the law is clear that the sale takes place not through mutation itself but it records, registers and attests oral transaction which is presumed to have taken place earlier. In pursuance of the same principle in the present case, for example, the transaction of sale would be constituted by the direction of the Court to the vendor to sell the property to the vendees/respondents' side, the vendor complying with this direction and making an oral sale to them by delivering the possession on receiving the sale price. All this as already noted was done in this case.
7. ' Thus the oral sale was complete. If it is followed by a mutation, it becomes the evidence of the oral sale and if it is not followed by a mutation, the pre-emptor can nevertheless maintain a suit of pre- emption on the basis of oral sale. Section 3(5) reads as follows:-- "Section 3. Definitions.________________________________________ (1)_______________________________________________ (2)_______________________________________________ (3)_______________________________________________ (4)______________________________________________________
(5) 'sale' shall not include:-
(a) a sale in execution of a decree for money or of an order of a Civil, Criminal or Revenue Court or of a Revenue Officer;
(b) the creation of an occupancy tenancy by a landlord whether for consideration or otherwise;"
8. It is obvious from the above definition that sale through decree for specific performance has not been excluded from the definition of sale. Though sale in execution of a decree for money has been excluded. Nor there is any indication in the definition that if a law permits sale without registration it will not be treated as sale for purpose of pre-emption. Section 30 of the Punjab Preemption Act also supports the foregoing assumption. It reads as follows:- `SECTION 30. Limitation.--In any case not provided for by Article 10 of the Second Schedule the Limitation Act, 1908, the period of limitation in a suit to enforce a right of pre-emption under the provisions of this Act shall, notwithstanding anything in Article 120 of the said Schedule, be one year;
(1) in the case of a sale of agricultural land or of village immovable property, from the date of the attestation (if any) of the sale by a Revenue Officer having jurisdiction in the register of mutations maintained under the Punjab Land Revenue Act, 1887, or from the date on which the vendee takes under the sale physical possession of any part of such land or property; ' whichever date shall be the earlier; "(2) in the case of a foreclosure of the right to redeem village immovable property or urban immovable property, from the date on which the title of the mortgagee to the property becomes absolute; "(3) in the case of a sale of urban immovable propel ty from the date on which the vendee takes under the sale physical possession of any part of the property."
9. ' The phrase 'attestation (if any) of the sale by a Revenue Officer' contains I, the vital expression "if any". It implies that there can be a sale before the attestation by a Revenue Officer. Not only this a phrase in the next part of subsection (1) of section 30: "on which the vendee takes under the sale physical possession of any part of such land or property also implies that a sale transaction which took place orally between the parties and whereunder physical possession is delivered, is enough for treating such oral transaction with delivery of possession as sale for purpose of the Punjab Preemption Act. See also Abdul Karim v. Fazal Muhammad Shah (PLD 1967 SC 411).
10. ' In the light of foregoing discussion this appeal is allowed and the impugned judgment and decree are set aside. There shall be no order as to costs.