This revision petition arises out of the facts of a suit for possession through pre-emption filed by the plaintiff-respondent Noor Ahmad minor through his mother Mst. Fatima against the defendant/petitioner on the basis of Yak Jaddi (son of the vendor) on a sale of land through a decree of specific performance of contract dated 19-12-1978 in the Court of Civil Judge, Ahmadpur East. The suit was contested by the defendant/petitioner who filed his written statement denying the averments of the plaint.
2. From the factual controversy appearing on the pleadings of the parties the trial Court led to frame the following issues:-
(1) Whether the pre-emptor has the superior pre-emptive right qua the defendant/vendee? OPP
(2) Whether an amount of Rs.14,000 was fixed in good faith or paid as the sale price of the suit land? If not, what was the market value of the suit land at the relevant time of the sale?
(3) Whether the suit cannot proceed in view of preliminary objections 1 and 2?
(4) Relief,
3. After recording and appreciating the evidence of the parties, pro and contra, the trial Court vide its judgment and decree dated 3-6-1982 dismissed suit. Feeling aggrieved the plaintiff-respondent had preferred an appeal which came up for hearing before the District Judge, Bahawalpur who vide, his judgment and decree dated 29-10-1984 accepted the appeal, set aside the finding of the trial Court and decreed the suit of the plaintiff-respondent.
4. The learned counsel for the petitioner contended that the suit was filed against the decree for specific performance of contract and decree of specific performance is not a sale. The suit could only be filed against the sale of the land and not against the decree. He relies upon the cases of Hafiz Manzoor Ahmad v. Muhammad Azam (1988 MLD 2248), Syed Ghaffar Hussain v. Ilahee Bakhsh (1990 MLD 739), Syed Manzoor Hussain Shah v. Khurshid Ahmad and 4 others (1989 CLC 1372), and Muhammad Ishaq v. Muhammad Siddique (PLD 1975 Lahore 909). He further contended that it was a case of partial pre-emption and the Lower Appellate Court has not adverted to this aspect of the case; that the plaintiff-respondent had applied for amendment of the plaint after passing of decree of dismissal of the plaint of the plaintiff-respondent whereby the vested right has been accrued in favour of the defendant-petitioner and Appellate Court has illegally granted application for amendment of the plaint. He relies upon the case of Mst. Bashiran and 7 others v. Abdul Ghani and 4 others (1995 SCMR 1833) and Syed Najmul Hassan and others v. Shah Sawar and others (1980-CLC 1866).
5. On the other hand the learned counsel for the respondent vehemently opposed the arguments of the learned counsel for the petitioner contending that a suit for pre-emption against a decree for specific performance of the contract was validly filed by the plaintiff-respondent. He relies on the cases of A1taf Hussain v. Lal Khan (1993 CLC 1580) and Nur Ahmad and others v. B. Muhammad Ibrahim and another (PLD 1953 Lahore 470).
6. I have hear the learned counsel for the parties anxiously and perused the record. There is an admitted position that the suit was filed to pre-empt the decree of specific performance of contract dated 19-12-1978 Muhammad Ramzan, vendor was owner of 25 Kanals, 12 Marlas agricultural land in Khewat No.11/11, Khatooni No.36, rectangle No.488/13 situated in Mauza Faridabad, Ttehsil Ahmadpur East for which he made an agreement to sell in favour of Wahid Bakhsh vendee, the present petitioner and decree for performance of the said agreement was passed by the Court. The right of pre-emption not to be enforced in respect of agreement to sell or as regards a decree for specific performance of contract. Such suit is pre-mature suit.
7. According to section 4 of the Punjab Pre-Emption Act, 1913 right of pre-emption arises in respect of a property only in case of sale. So long as a particular transaction between the parties does not amount to a sale no right accrues in favour of a pre-emptor nor can any suit be filed in this behalf.
It cannot be doubted that no suit for pre-emption can be filed in respect of agreement to sell the property the reason being that such an agreement to sell does not create any title or any interest in the property itself. Same position holds true as regards a decree for specific performance. The decree passed in the suit for specific performance of contract is mere declaration of right of decree-holder and does not even amount to a defective sale. The decree for specific performance only declares the right of decree-holder to have the property transferred in his favour and so 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 remained vested in the judgment-debtor because the decree passed in a suit for specific performance of contract does not transfer title and the same continued to vest in the judgment-debtor. Mere decree unless it is registered by Registrar does not create any title/right in favour of a decree-holder which could form basis for pre-emption. This legal proposition is strengthened by the dictum laid down in the case of Hafiz Manzoor Ahmad, Syed Ghaffar Hussain, Syed Manzoor Shah and Muhammad Ishaq (supra).
8. So far as the cases referred by the learned counsel for the respondent are concerned the facts of those cases are not applicable to the present cases. In case of Nur Ahmad and others the decree for specific performance of contract of sale of immovable property was perfected by deed of sale signed by a Court on behalf of the vendor under Order XXI, Rule 34(5), C.P.C. In case of Altaf Hussain v. Lal Khan a sale under a deed of sale was signed by the Court on behalf of the vendor under Order XXI, Rule 34(5). C.P.C. And the court had observed that this sale was pre-emptable.
9. In the instant case neither any sale a as been registered in favour of the decree-holder by the Sub-Registrar nor sale was perfected or sale-deed was signed by the Court on behalf of the vendor under Order XXI, Rule 34(5), C.P.C. Therefore, present suit was trot maintainable and was liable to be dismissed being pre-mature.
10. The agreement to sell was executed in respect of 25 Kanals, 12 Marlas land by Muhammad Ramzan vendor and the suit was filed by the plaintiff-respondent in respect of rectangle No.488/13 and share of 1/20 out of 25 Kanals and 12 Mmarlas of land, meaning thereby the suit was not filed against the whole land measuring 25 Kanals, 12 Marlas. Therefore, the suit is hit by partial pre- emption. The plaintiff-respondent after dismissal of his suit when filed an appeal had made an application for amendment in the plaint. It has been held in case of Muhammad Shafi v. Alam Din and another (1990 MLD 1967) (Azad J & K) that ordinarily a suit has to be instituted within limitation.
When a portion of property under sale is left out and it is sought to be included in the suit. Such inclusion by amendment must be sought within period of limitation. Otherwise the suit has to fail by Rule of partial pre-emption. A pre-emptor has to sue for whole of the property under sale or transfer.' Whenever departure from this principle is made such suit is not sustainable by virtue of rule of partial pre-emption. The Honourable Supreme Court in case of Mst. Bashiran and 7 others v.
Abdul Ghani and 4 others (1995 SCMR 1833) has observed that plaintiff's offer to pay the entire consideration paid by the vendee to the vendor would defeat the basic policy on which right of pre-emption is based.
11. The above referred legal aspects of the case have not been taken into consideration by the First Appellate Court and the Court after allowing the amendment in the plaint has prejudiced the vested right of the opposite party created after the expiry of period of limitation. When the Lower Appellate Court has failed to take into consideration such-like legal proposition, the High Court would interfere in its revisional jurisdiction to set at naught the findings of the lower Court.
For what has been stated above, this revision petition is accepted, the judgment and decree dated 29-10-1984 passed by the Lower Appellate Court is set aside, the judgment and decree passed by the trial Court is maintained and the suit filed by the plaintiff-respondent is dismissed. There shall be no order as to costs.