SAYED NAJAM-UL-HASSAN KAZMI, J.-- This revision arises from judgment dated 10.12.1998 of the learned Additional District Judge, Lahore.
2. Dr. Abdul Qayyum, predecessor-in-interest of the petitioners, agreed to sell land measuring 11 kanals:1 marla in the revenue estate of Baghbanpura, in favour of Muhammad Azeem, predecessor-in-interest of respondents, in consideration of Rs. 1,54700/-. To enforce the agreement, a suit for specific performance was filed which was resisted on the ground that no agreement of sale had ever been executed. The suit was ultimately decreed by the learned Civil Judge, which judgment was also affirmed in appeal on 18.4.1989. RSA No. 80/89 filed by the petitioners to challenge the decree was dismissed on 23.2.1991. Civil Appeal No. 1/91 filed by the petitioners to challenge the decree in suit for specific performance was dismissed by the Supreme Court on 13.3.1995 and the judgment was reported in Hamid Qayyum and two others Vs. Muhammad Azeem and others (PLD 1995 SC 381).
3. During proceedings for execution, notices were issued to the vendors and since they failed to execute the sale-deed, the executing Court executed sale-deed on behalf of vendors on 2.8.1995 and consigned the file to record on 14.9.1995. On the same day, an application was filed by Khalid Qayyum, on his behalf and also by claiming attorney of his sisters, informing the Court that they had intentions to file a suit for pre-emption. This application was disposed of by the executing Court on the ground that in execution, the said questions could not be looked into by the executing Court.
4. After the execution of sale-deed, the suit for pre-emption was filed by the petitioners to pre- empt sale made in favour of respondents, in execution of the decree for enforcement of agreement of sale dated 3.2.1970. An application under Order 7, Rule 11 of CPC was filed for rejection of plaint on certain grounds. Plaint was rejected by the learned Civil Judge on 12.11.1996.
5. Appeal filed by the petitioners was accepted by the learned Additional District Judge vide judgment dated 23.12.1997, when the case was remanded for fresh decision on merit, after recording of issues and permitting the parties to adduce evidence..
6. The judgment 'of the Appellate Court dated 23.12.1997 remanding the case was challenged in C.R.
No. 150/98 which was decided by this Court on 6.11.1998. In result, the case was remanded to the Appellate Court for decision of appeal afresh, by attending to the objection as to maintainability of suit for pre-- emption at the instance of the petitioners, keeping in view the objections raised and the facts noted in the judgment. The facts hereinabove, were also noticed in the judgment dated 6.11.1998 delivered in C.R. No. 150/98.
7. In post remand proceedings, learned District Judge dismissed the suit vide impugned judgment dated 10.12.1998, on reaching conclusion that the sale was not pre-emptiable at the instance of the petitioners, who in his view, had stepped in the shoes of vendor and would be deemed to be sellers for all intents and purposes, hence not entitled to maintain a pre-emption suit of the same sale. 8.
Learned counsel for the petitioners relying on Muhammad Nawaz' vs. Fida Hussain, etc. (1994 Law Notes (Lahore) 629), contended that the petitioners could maintain a suit for pre-emption on the basis of their independent rights, being Shafi Sharik, Shafi Khalit and Shafi Jar. It was argued that the petitioners did not agree for any sale nor would be deemed to be vendors for the sale concluded by their, father and the decree for enforcement of agreement would be deemed to have been passed against the deceased father of the petitioners and not against the petitioners, though they represented the estate on account of devolution of property by operation of law.
Learned counsel submitted that if sale-deed had been executed by their father, they could have filed a suit for pre-emption on the basis of being co-sharer in the khatta and joint owners of common easements and of this right, they could not be deprived; simply because their father had died and they pursued the suit for specific performance.
9. In reply, it was argued that the petitioners pursued the suit for specific performance, decree was passed against them, they took up the matter up to the Supreme Court in appeal, unsuccessfully filed review petition, execution were carried against them and the sale-deed was executed by the executing Court on their behalf by mentioning them as vendors and, therefore, they could not pre- empt the same sale, being party to the transaction. Learned counsel submitted that the suit was incompetently filed by an alleged attorney who claimed to have been appointed for the previous litigation and did not have authority to file' suit' for preemption on the alleged cause which accrued subsequently. Learned counsel explained that in the absence of any specific authority to file suit for pre-emption, neither any talab could be made on the basis of old power-of-attorney nor the same could vest any right or power to institute the suit. It was added that the requisite talabs were never made, therefore, the alleged plea of pre-emption stood extinguished.
10. On having deeper study of the facts appearing on record, it is found that undeniably, a suit for specific performance was filed against the petitioners, to enforce an agreement of sale, executed by their predecessor, the suit was ultimately decreed and the final decision in this regard was rendered by the Supreme Court, in Civil Appeal No. "193 of 1991, decided on 13.5.1995. This judgment was reported as PLD 1995 SC 381.
Since there is no dispute that a suit for specific performance was filed by Muhammad Azeem, predecessor of respondents, for enforcement of agreement executed by Dr. Abdul Qayyum, predecessor of the petitioners and that final judgment was reported as 'referred to hereinabove.
Therefore, the facts and circumstances of the case, can be taken judicial note of from the reported judgment. From the said judgment, it is discernible that Muhammad Azeem, predecessor of respondents claimed that an agreement of sale was executed by Dr. Abdul Qayyum, predecessor of the petitioners, on 9.2.'1970, in respect of land measuring 11 kanals, 1 marla, for a sum of Rs.
1,54,700/- out of which Rs. 54,700/- was paid as earnest money and balance amount payable was Rs. 1,00,000/-. The period for execution of sale-deed was claimed to have been fixed as six months.
It was maintained that receipt was also executed as a token of having received earnest money.- On the basis of the said agreement of sale, suit for specific performance was filed against the petitioners (legal heirs of Dr. Abdul Qayyum) as in the meanwhile, Dr. Abdul Qayyum had died. The petitioners contested the suit, denied the agreement, termed the agreement as forged document and disputed their liability to honour the same. The Learned Civil Judge vide judgment and decree dated 7.12.1987, decreed the suit and directed the respondents to deposit balance amount of consideration within one month with a direction to the petitioners to execute regular sale-deed in favour of the respondents, failing the . Sale-deed could be executed through the Court, in accordance with law. Petitioners went in appeal which was dismissed on 18.4.1989. RSA No. 80/89 was filed to assail the judgment of Courts below which was dismissed by a learned Single Judge of this Court on 23.2.1991.
11. Petitioners filed a petition for leave to appeal, leave was granted and petition was converted into appeal which was decided as Civil Appeal No. 193/91 on 13.3.1995. Needless to mention here , that on account of dissenting judgment, the matter was referred to the Honourable Referee Judge of the Supreme Court and as a result of majority decision, the appeal was dismissed. Petitioners filed review petition which too was dismissed. By the Supreme Court. -
12. Execution proceedings were initiated by the respondents, in which notice was issued to the petitioners. Since the petitioners failed to execute the sale-deed, the same was executed and registered by the Court, for and on behalf of the petitioners. Obviously, as the law requires, the sale- deed was- in the name of the petitioners and in favour of the respondents decree-holders, though the same was signed on behalf of the judgment debtors by the Court. For all intents and purposes in law, the sale-deed would be deemed to have been executed by the petitioners in favour of respondents decree holders.
13. , Main objection of the respondents is that the present suit for pre-emption filed by the petitioners to pre-empt filed by the petitioners to pre-empt the sale affected through the sale- deed in execution of decree for specific performance, will not be competent as the petitioners being party to the deed cannot preempt the sale. The objection is defended by the petitioners on the ground that were not initially party to the agreement and if the property devolved upon them by operation of law and sale-deed was executed in their names, they should be deemed , to be representative of estate of their father and not party to the deed. Reference was made to Muhammad Nawaz vs. Fida Hussain, etc. (1994 Law Notes (Lahore) 629).
14. On careful consideration of the rule given in the said judgment, one finds that the facts in that case were distinguishable. In that case, the decree was not passed against the successors. The suit was instituted against the executant of the agreement which was decreed. In the said case, the question was as to whether the sale made through decree for specific performance was pre- emptiable and as to what would be the period of limitation and what would be the commencing date for the purpose of calculating limitation. The decision rendered was that the sale in execution of the decree for specific performance would be pre-emptiable and suit could be filed within one year from the date of execution of the sale-deed. In the present case, the facts are different. The agreement was executed by Abdul Qayyum predecessor of petitioners who could not complete the deed during ' his life-time and resultantly, suit for specific performance was filed by Muhammad Azeem predecessor of respondents. In the suit for specific performance, petitioners were party who throughout contested the same, filed the appeal, second appeal and also the final appeal before the Honourable Supreme Court and the decree was passed against them. Review petition filed by them was dismissed by the Honourable Supreme Court, execution petition was filed against them and on their failure to execute sale-deed in terms of the decree, the executing Court executed the sale-deed for and on behalf of the petitioners who are recited as vendors in the sale-deed. In this view of the matter, petitioners cannot be allowed to assume that they-were not party to the sale. No doubt the agreement was executed by late Dr. Abdul Qayyum, predecessor of petitioners but the property devolved upon the petitioners, who became owners thereof alongwith the charge against the property and transferred the same under the decree of the Court, as owners of the property and not representatives of the estate simpliciter. The petitioners did pursue the suit to defend their own interests in the .Property but could not succeed upto the stage of Honourable Supreme Court. After having lost in the suit for specific performance and on the execution of sale-deed in terms of the decree, the petitioners cannot be permitted to file a suit for pre emption to circumvent the decree passed against them. Learned counsel for the petitioners did not deny that if the petitioners had been the sellers, then possibly they could not sell the same but he added that they should not be deemed to be sellers. The arguments that if father of the petitioners had sold the property, they could have pre-empted and therefore, simple death of their father should not deprive them of the right of pre-emption, is without substance. It is true that if the sale-deed had been executed by late Dr.' Abdul Qayyum, in his life-time, then the transactions would have been completed and petitioners being not party in the sale could have Pre-empted and enforce their independent right. But here property devolved upon them who tried to save the same by contesting the suit for specific performance and if they had lost, the decree would be deemed to be one against them for all practical purpose, who would be vendors as the property sold is the one which vested in them at the time of execution of sale-deed. The Court acted for and on behalf of the petitioners and the petitioners will be deemed to be party to the deed of sale.
Under Section 5 of the Punjab preemption Act, right of pre-emption arises in a sale of immovable property, which under Section 6 can be enforced by Shafi Shank, Shafi Khalid and Shafi Jar respectively. The right of pre-emption, by virtue of Section 6, vest in those persons who are not party to the sale. If the arguments that despite being the judgment-debtor's and vendors of the property, petitioners should be allowed to preempt the same sale is accepted, it will lead to disastrous consequences as in every sale, vendor would come with the plea that he would be entitled to pre-empt the sale having superior right in terms of Section 6 of the Act. This can neither be the intentions not the spirit of. The law. In view of the peculiar circumstances of the case and the reasons noted supra, the sale made by the petitioners was not pre-emptable at their option and instance and, therefore, suit for pre-emption filed by them was rightly found to be not maintainable.
15. The other points urged by learned counsel for the petitioners need not be attended to as the same required factual inquiry. Even otherwise, in view of the findings that suit for preemption was not maintainable, there does not appear to be any reason to render authoritative decision on the other questions.
16. For the reasons above, there is no substance in this revision, which is accordingly dismissed.