' MUHAMMAD YUNUS SURAKHVI, J.---This appeal has been directed against the judgment and decree passed by the High Court on 29-9-2000, whereby a decree for pre-emption of the suit land was passed in favour of Barkatullah, respondent No, 1.
2. The necessary facts, briefly stated, are that Abdul Rashid, plaintiff-appellant, filed a suit for specific performance of agreement-to-sell executed by one Khalifa and Wali-ur-Rehman on 13-12- 1981, in respect of suit land comprising Survey No, 221-min, measuring 27 Kanals, 13 Marlas and 226- min, measuring 3 Kanals and 19 Marlas, situate in village Pihalian-Batnara, Tehsil and District Muzaffarabad in the . Court of Additional District Judge, Muzaffarabad on 2-3-1987. The price of the suit land was agreed upon between the parties as Rs,60,000. It was averred by Abdul Rashid, plaintiff-appellant, that on the basis of agreement-to-sell he had become the owner of the suit land wherein he had constructed a house and is living there and his possession over the suit land had ripened into ownership. He sought a decree for specific performance of agreement-to-sell.
3. A counter-suit was also filed by respondent Barkatullah in the Court of Sub-Judge, Muzaffarabad seeking perpetual injunction to the effect that the suit land was in the joint ownership and possession of plaintiff-respondent and the other defendants as such defendants Nos.1 and 2 had no right to transfer any land out of the joint land. It was also averred that land comprising Survey No,221-min, measuring 27 Kanals, 13 Marlas and 226-min, measuring 3 Kanals, 15 Marlas total measuring 31 Kanals, 12 Marlas had been transferred vide agreement-to-sell dated 13-12-1981 by defendants Khalifa and Waliur-Rehman in favour of Abdul Rashid, defendant No,3. It was also averred in the suit that in fact the agreement-to-sell was a sale-deed, therefore, plaintiff- respondent being the co-sharer in the suit land and agnate of vendors had a prior right of purchase. This suit was transferred to Additional District Judge, Muzaffarabad. Both the suits were consolidated by the Additional District Judge, Muzaffarabad and after the conclusion of trial the learned Additional District Judge vide his judgment and decree dated 5-3-1999 dismissed the suit of Barkatullah, respondent herein, while decreed the suit of Abdul Rashid, appellant herein, for specific performance of agreement-to-sell dated 13-12-1981. Feeling aggrieved by the judgment and decree passed by the Additional District Judge, Muzaffarabad on 5-3-1999, respondent Barkatullah preferred an appeal before the High Court which was accepted on 29-9-2000 and a decree for pre-emption of the suit land for consideration of Rs,60,000 plus the expenses incurred on the agreement-to-sell was passed in favour of respondent Barkatullah. It is the aforesaid judgment and decree passed by the High Court on 29-9-2000, which is the subject of present appeal.
4. In support of appeal it was vehemently contended by Kh. Muhammad Nasim, the learned counsel for the appellant, that the judgment and decree passed by the High Court was liable to be set aside for the simple reason that the document executed between the parties on 13-12-1981 was an agreement-to-sell and the same could not be construed to be a sale-deed by any stretch of imagination as such the question of plaintiff-respondent's having a preferential right to purchase the suit land did not arise. The learned counsel contended that the document is to be read as a whole and after going Through the contents of the same a conclusion is to be drawn with regard to its intents and purposes. The learned counsel contended that the High Court misdirected itself and came to an erroneous conclusion by treating the said document as a sale-deed. The learned counsel as contended that a decree for pre-emption in favour of plaintiff-respondent could not have been passed at all as 'the plaintiff-respondent did not seek any prayer for possession of the suit land on the basis of his preferential right of purchase.
5. Controverting the arguments raised by the learned counsel for the appellant, Sh. Abdul Aziz, the learned counsel for respondent No,1, fully defended the judgment recorded by the High Court and contended that bare reading of the agreement-to-sell dated 13-12-1981 shows beyond any manner of doubt that the same was in fact a sale which was apparently shown as an agreement to sell in order to evade the stamp duty and to defeat the prior right of purchase of plaintiff-respondent. The learned counsel for respondent contended that the plaintiff-respondent, Barkatullah, has categorically pleaded in his suit for pre-emption in para. No,3 that he being the co-sharer in the suit land and agnate of Khalifa and Wali-urRehman, the vendors, had a preferential right of purchase of the suit land as compared to the appellant. The learned counsel contended that from the document which was disguised as agreement-to-sell, it transpires that the suit land was sold to Abdul Rashid, appellant, for an ostensible consideration of Rs,60,000 whereas the amount pajd was only Rs,28,000 but a fictitious amount of Rs,60,000 was entered in the said agreement-to-sell in order to defeat the right of prior purchase of the plaintiff-respondent. The High Court, according to the learned counsel for respondent, committed no error in taw in passing the impugned judgment and decree of pre-emption in favour of plaintiff-respondent, Barkatullah.
6. We have given our due consideration to the argument advanced at the Bar and perused the relevant record made available with care. The learned Additional District Judge, Muzaffarabad vide his judgment and decree dated 5-3-1999 dismissed the suit of Barkatullah, respondent, whereas a decree for specific performance of agreement-to-sell dated 13-12-1981 was passed in favour of appellant. Respondent No,1 being dissatisfied with the judgment and decree passed by the Additional District Judge preferred an appeal before the High Court which was accepted on 29-9- 2000 and a decree for pre-emption on payment of Rs,60,000 plus the expenses incurred on the agreement-to-sell was passed in favour of respondent No,1, whereas the decree for specific performance of agreementto-sell passed in favour of appellant Abdul Rashid was set aside. The High Court observed that the agreement-to-sell was in fact a sale as the consideration amount agreed upon between the parties passed away to the vendors and thus, the sale was complete in all respects, except that the stamp duty was not paid. The High Court also formed the view that the averment made by Barkatullah respondent in para. No,3 of his plaint to the effect that he being the co-sharer in the suit land and agnate of Khalif and Wali-urRehman, vendors, had a preferential right to purchase the suit land was not denied by the appellant or the other defendants. Therefore, the right of prior purchase having been admitted by the appellant there was no need of proving the same by producing any evidence. So far as above observation recorded by the High Court is concerned that the agreement-to-sell dated 13-12-1981 was, as a matter of fact, a sale and the same was disguised as an agreement-to-sell seems to be absolutely correct because the contents of the alleged agreement-to-sell show it beyond any manner of doubt that the suit land was sold to Abdul Rashid appellant by the vendors and the consideration amount was duly received by them. It is also stipulated in the alleged agreement-to-sell that the suit land had been sold to Abdul Rashid appellant and the consideration amount has been received. From the contents of the alleged agreementto-sell it appears that the vendors in order to evade the stamp duty or to defeat the prior right of purchase of respondent styled the said document as an agreement-to-sell whereas the same was a sale for all intents and purposes. In fact the alleged document admits of no other interpretation than the one that it was in fact a sale. The fundamental principle of interpreting a document is that intent and purpose of a certain document should be interred from the language employed and its ordinary meaning should be adhered to and given preference rather than the farfetched meanings.
7. We have already observed that the High Court committed no error in reaching the conclusion that alleged agreement-to-sell entered into between the parties dated 13-12-1981 was in fact, a sale but the plaintiff-respondent, Barkatullah, was not entitled to be granted qua decree for preemption for the simple reason that he never made a prayer for seeking possession of the suit land on the basis of his prior right of purchase.
8. It may also be pointed out that one of the reasons made basis by Additional District Judge, while dismissing the suit of pre-emption filed by plaintiff-respondent, Barkatullah, was that the plaintiff failed to amend his suit seeking the prayer of possession as such his suit had become redundant..
It was also observed by the learned Additional District Judge that plaintiff-respondent moved an application for amendment of his plaint by seeking a prayer for possession of the suit land which was allowed to him vide his order dated 5-3-1991 on payment of cost of Rs,500. This order of Court was not complied with and ultimately on 30-4-1991 the order dated 5-3-1991 was set aside by the Additional District Judge and the plaintiff-respondent's prayer for seeking possession of ,suit land was recalled. In such an eventuality a decree for possession on the basis of prior right of purchase simplicitor could not have been passed in favour of Barkatullah, plaintiff-respondent.
9. In the last limb of his arguments it was contended by Kh. Muhammad Nasim, the learned counsel for the appellant, that on 7-4-1990 during the pendency of suit before the Additional District Judge plaintiff-respondent Barkatullah moved an application alleging therein that he may be allowed to seek the possession of suit land from defendant-respondent by allowing an amendment as the possession of suit land had been forcibly taken away by the defendants. The said amendment was allowed to plaintiff-respondent on 5-3-1991 on payment of costs to defendant-respondent of Rs,500 and the case was posted to 25-3-1991. Thereafter, two other opportunities were provided to the plaintiff-respondent and on 24-4-1991 he was allowed another opportunity to pay additional costs of Rs,50 apart from Rs,500 which were already awarded on 5- 3-1991 and the case was posted to 30-4-1991. Even on this date the total costs awarded to plaintiff- respondent Rs 550 were not deposited by him as such the order dated 5-3-1991 allowing the proposed amendment to plaintiff-respondent was recalled by Additional District Judge on 30-4- 1991.
10. It also transpires from the records that the order of Additional District Judge dated 30-4-1991 was not brought to the notice off the High Court by any of the learned counsel for the parties, otherwise in absence of effecting an amendment for possession of suit land the decree for pre- emption could not have been passed at all in favour of plaintiff respondent. We are not oblivious of the fact was that the said point w not raised before the High Court nor the same was raised in the memo. Of appeal before this Court nor in the concise statement but we are of the view that the said point goes to the root of the case and is so much fatal that no effective decree for pre- emption at all could have been passed in favour of plaintiff-respondent. The High Court thus, committed an illegality in passing the decree of pre-emption in favour of plaintiff-respondent .
11. A decree which by itself is in executable even if passed, is a nullity and non-existent in the eye of law. In a case reported as Bejoy Ranjan Kanoongo and others v. Khan Bahadur Khalilur Rahman (PLD 1968 SC 342) it was observed as under:-- "A plain reading of the award appearing on pages 7, 8, Part II, Exh.5(a) of the record shows that Kanoongo was to remain in possession as a tenant-at-will till such time the sum of Rs,2,500 was paid to him by Dastidar. The decree passed on the basis of award was, therefore, declaratory in nature and not susceptible to execution through intervention of the Court."
' In a case reported as Abdul Shakoor Khan v. Administrator Municipal Committee, Multan (PLD 1951 Lah. 32) it was observed as follows:-- "Executing Court cannot go behind the decree but can refuse to execute the decree if the same is no longer executable."
12. In the aforesaid circumstances of the case we are of the considered opinion that the possession of the suit land being admittedly with the defendants, plaintiff-respondent Barkatullah was not at all entitled to a decree for pre-emption without seeking a prayer for possession of the suit land. As a matter of fact the decree for pre-emption is always based on the prayer of possession.
13. Despite the fact that the above referred plea has not been taken either before the High Court or in the memo. Of appeal, we are of the considered opinion that grant of decree for pre-emption in favour of plaintiff without seeking the prayer for possession would be inexecutable in the eye of law and the same could not have been granted under any of the provisions of law. Under Order XLIII, Rule 5 of the Supreme Court Rules this Court is vested with wide powers to make such orders as may be necessary for the ends of justice or to prevent abuse of process of Court. By exercising powers under Order XLIII, Rule 5 of the Supreme Court Rules, we are constrained to hold, in view of the peculiar facts and circumstances of the case, that plaintiff-respondent, Barkatullah, was not entitled to decree for pre-emption without seeking the prayer for possession of suit land.
14. In the light of what has been stated above, we accept the appeal filed by the appellant and set aside the impugned judgment and decree for pre-emption passed in favour of respondent Barkatullah. Thus, the suit filed by respondent Barkatullah for pre-emption stands dismissed, whereas the suit tiled by appellant Abdul Rashid stands decreed in terms that the vendors shall execute a sale-deed of the suit land total measuring 31 Kanals, 12 Marlas, comprising Survey Nos.221-min, measuring 27 Kanals, 13 Marlas and 226-min, measuring 3 Kanals, 19 Marlas, including the house built therein in favour of appellant within a period of two months from the date of judgment of this Court. All the relevant expenses incurred on the sale-deed shall be borne by the vendor-defendants. In case the vendors fail to do to needful within the above stipulated period, the sale-deed in favour of appellant shall be got executed by Nazar of Additional District Judge, Muzaffarabad. The judgment and decree thus, passed by the Additional District Judge, Muzaffarabad stands upheld. In the circumstances of the case we pass no order as to costs. In pursuance of the judgment of the High Court if the plaintiff-respondent Barkatullah had deposited the consideration amount plus the expenses incurred on the agreement-tosell, the same shall be refunded to him on his executing a receipt before the trial Court (Additional District Judge, Muzaffarabad).
Appeal accepted/