MIAN SAQIB NISAR, J. - Brief facts of the case are that one Captain Abdul Aziz sold his agricultural land measuring I0O kanals situated in Chak No. 9/3-L, Tehsil Shorkot, District Jhang, vide sale-deed dated 27.10.1977, registered on the same day. Muhammad Bakhsh and others (petitioners) filed a suit for pre-emption on 25.10.1978 challenging the said sale and claiming the right of pre-emption on account of being owners in the estate.
2. This suit was resisted by the vendors/respondents and one of the objections taken was that the suit was barred by time. On the pleadings of the parties the Trial Court was pleased to frame issues and decreed the suit vide judgment & decree dated 2.3.1983. Against above, an appeal was filed which was accepted by the Appellate Court vide judgment & decree dated 12.11! 1983. It is this judgment & decree of the Appellate Court which have been assailed through this revision petition.
3. The only contention raised before this Court by the learned counsel is that the suit filed by the petitioners was barred by time and the Appellate Court has rightly dismissed the suit of the petitioners. It is, may be, pertinent to state here that in this behalf issue No. 6 had been framed.
4. Learned counsel for the petitioner has argued that the Trial Court had given findings in favour of the petitioners by holding that the suit filed on 25.10.1978 challenging the sale-deed dated 27.10.1977 was well within time and these findings are based upon proper reading and appreciation of evidence. Learned Appellate Court in fact has mis-read the evidence particularly Ex.D-1, i.e. Agreement of sale dated 16.7.1977 and Ex.D-2 to hold that the sale had taken place under agreement Ex.D-1 and the possession of the suit land was delivered thereunder.
5. It is further stated that Ex.D-1 had only been executed in favour of four persons whereas the sale- deed dated 27.10.1977, was in favour of fourteen persons. Moreover, the total sale consideration was not paid under the agreement of sale Ex.D-1 and consequently neither the previous transaction was a sale nor any possession thereunder can be deemed to under sale. Therefore, starting time of limitation would be the date of execution of agreement and registration of sale-deed on 27.10.1977.
In this behalf, learned counsel has relied on PLD 1994 S.C. 120, to contend that where the parties had agreed that sale would be complete only on the registration of the sale-deed and not earlier, such being the intention and the contents of the document, sale could not be said to be completed with the execution of agreement to sell nor possession obtained under the agreement to sell was possession obtained under the sale so as to afford a cause of action to the pre-emptor to bring a suit. Secondly in case reported in 1987 SCM R 1206 the Honourable Supreme Court while dealing with the question of limitation held that if the sale could not be completed without registration, possession, obtained before registration of the sale could not be under the "sale", therefore, the suit within one year of the registration of deed was held within time, possession obtained earlier to the sale being immaterial.
6. It is also contended by the learned counsel for the petitioner that assuming tor the sake of argument, if the possession had been delivered under Ex.D-1, the same could be part performance of agreement but not under the sale.
7. It is thus finally argued that the suit for pre-emption tiled on 25.10.1978 is well within time.
8. On the other hand, the learned counsel for the respondent has argued that the agreement of sale Ex.D-1 and the entry of this agreement in Roznamcha of the patwari Ex.D-2 is sufficient to prove that the sale had taken place on the date of execution of this agreement, it is so stated in this agreement that the petitioner had been put in possession of the property, therefore, it was a conclusive possession and thus point of limitation would start from the date of execution of transfer of possession and deliver of possession thereof. In support of his contention, he has referred Section 30 of the Punjab Pre-emption Act, 1913. He has farther contended that under Section 54 of the Transfer of the Property Act, 1882 a sale could take place by way of a transaction where the price or part thereof, has been paid and possession has been delivered.
9. I have heard the learned counsel for the parties and have also perused the judgment & decrees of the Courts below as well as record.
10. Admittedly, Ex.D-1 is an agreement of sale which is executed in favour of only four persons and it is not a executed contract of sale, rather a executory contract. Further steps under the said agreement had to take place between the parties in order to accomplish the object of this agreement into sale. It was only a part payment which was made under the agreement Ex.D-1 in favour of four persons whereas the sale culminated in favour of fourteen persons. Any possession taken under the said agreement would not be deemed to be under sale, rather it may be in part performance of this agreement. Learned counsel has tried to argue on the basis of Transfer of Property Act that where part of the price has been paid and . Possession delivering it would be a complete transaction of sale. I am afraid that this contention is not well-founded under Section 54 of the Transfer of Property Act.
A contract for the sale of immovable property is a contact that a sale of such property shall take place on terms settled between the parties. It does not, of itself create any interest in or charge on such property.
Meaning thereby that mere entering into the agreement of sale by itself does not constitute the sale of the property, because the important element of ownership is not transferred.
11. Learned counsel for the respondents has vehemently argued that as possession had been obtained by the respondents on the basis of said agreement, therefore, this possession was sufficient notice to the petitioners/plaintiffs, for the purposes of filing a suit for pre-emption. I do not agree with this contention of the learned counsel for the respondent. As no sale had taken place therefore, the change of possession would be no notice of sale conferring a right to a person to file a suit for pre-emption.
12. In view of above, I agree with the dictum of Honourable Supreme Court referred above, as also with the contentions raised by the learned counsel for the petitioners that the agreement Ex.D-1 was not a sale nor any possession delivered thereunder can be deemed possession under the sale.
Thus findings of the Appellate Court on issue No. 6 are erroneous and illegal. Consequently, this revision petition is accepted and the decree of the original Court is restored by setting aside the judgment & decree of the Appellate Court.