IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ ULAHSAN
MR. JUSTICE SAYYED MAZAHAR ALl AKBAR NAQVI
CIVIL APPEAL NO.2433 OF 2016
(Against the judgment dated 28.07.2015 of
the Peshawar High Court, D.I. Khan Bench,
D.I. Khan passed in C.R.No.25-D/2014)
Muhammad Iqbal etc.
Appellant(s)
Versus
Nasrullah
Respondent(s)
For the Appellant(s): 
Ms. Afshan Ghazanfar, ASC
Syed Mastan All Shah Zaidi, ASC
Syed Rifaqat Hussain Shah, AOR
For the Respondent(s): 
Malik Ghulam Mustafa Kandwal, ASC
Date of Hearing: 15.09.2022
JUDGMENT
SAYVED MAZAHAR All AKBAR NAQVI, J. Through this appeal by leave of the
Court, the appellants have called in question the vires of the judgment dated
28.07.2015 passed by the learned Single Judge of the Peshawar High Court,
D.I. Khan Bench whereby the Civil Revision filed by the respondent was
allowed and the judgments of the learned two courts below dismissing the
suit filed by the respondent were set at naught.
2. Briefly stated the facts of the matter are that one Haji Kamal Din
was owner in possession of a house and three shops situated at Paniala Road,
Paharpur, D.I. Khan. The said Haji Kamal Din agreed to sell the said property
to the appellants for a total sale consideration of Rs.57,00,000/- and both
parties entered into an agreement to sell dated 25.01.2010. An amount of
Rs.30,00,000/- was paid in cash whereas the remaining sale consideration of
Rs.27,00,000/- was to be paid on 28.02.2010. It was further agreed that
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delivery of possession of the property and proper documentation of sale will
be made after payment of entire sale consideration. However, the remaining
sale consideration was paid on 11.04.2010 instead of 28.02.2010. On
18.05.2010, the respondent/plaintiff filed a suit before the learned Civil
Judge, Paharpur, for possession of the said property through pre-emption.
The appellants joined the proceedings and filed an application under Order VII
Rule 11 CPC seeking dismissal of the suit being pre-mature. After hearing the
parties, the learned Trial Court rejected the application vide order dated
15.10.2010. The appellants challenged the said order before the Additional
District Judge-V 1 D.I. Khan by filing Civil Revision, which was accepted vide
order dated 10.012011 and the matter was remanded back to the learned
Trial Court to decide the application afresh. On remand, the learned Trial
Court again heard the arguments of the parties and ultimately vide order
dated 17.03.2011 accepted the application filed by the appellants and
dismissed the suit for pre-emption filed by the respondent. Being aggrieved
by the dismissal of his suit, the respondent filed an appeal before the
Additional District Judge, Paharpur, D.I. Khan, which was dismissed vide order
dated 21.11.2013. The respondent assailed the concurrent findings of two
courts below before the learned Peshawar High Court by filing Civil Revision
No. 25-D/2014. The learned High Court vide impugned judgment dated
28.07.2015 allowed the Civil Revision, set aside the concurrent findings of the
learned two courts below, dismissed the application filed by the appellants for
dismissal of suit and remanded the matter back to the learned Trial Court to
proceed in accordance with law. Hence, this appeal by leave of the Court.
3. At the very outset, learned counsel for the appellants contended
that on 23.02.2010 when the respondent allegedly performed Talb-e-
Muwathibat neither the sale was complete nor possession of the property
was delivered to the appellants, therefore, performance of 'Talabs' before the
completion of sale was pre-mature and the suit for pre-emption could not
stand over it. Contends that an agreement to sell does not confer title of the
subject matter and there always remain a risk that in case of any default of
any clause of agreement to sell, the same may be revoked. Contends that in
the agreement to sell, it was expressly mentioned that the possession would
CIVIL APPEAL NO.2433 OF 2016 
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be delivered after payment of balance sale consideration, which was paid on
11.04.2010. Lastly contends that the learned High Court has erred in
comprehending the terms "sale" and "agreement to sell", as such, the
impugned judgment reversing the concurrent findings of the two courts
below is not sustainable in the eye of law.
4.
On the other hand, learned counsel for the respondent has
defended the impugned judgment. He contended that in the agreement to
sell it was clearly mentioned that a complete sale has been made. Further
contended that once possession is transferred, the sale becomes complete
even if the balance sale consideration has not been paid, therefore, the
learned High Court has passed a well reasoned judgment to which no
exception can be taken. In support of his arguments, he relied on Muhammad
Nazeef Khan Vs. Gulbat Khan etc (2012 SCMR 235).
5.
We have heard learned counsel for the parties at some length
and have perused the impugned judgments as also the case law cited by
them.
The moot points, which need our consideration, are as to
whether (i) an agreement to sell confers title; (ii) the agreement dated
25.01.2010 was conclusive at the time when the respondent allegedly
performed Talb-e-Muwathibat i.e. 23.02.2010, (iii) if the sale was not
complete, whether the suit filed by the respondent was
competent/maintainable? A bare perusal of the agreement to sell shows that
it had expressly been stipulated therein that sale deed would be executed and
the possession would be delivered to the appellants after payment of
outstanding balance out of total consideration. It is an admitted position that
the balance sale consideration of Rs.27,00,000/- was paid on 11.04.2010,
which means that agreement to sell between the parties had not been
concluded at the time when the respondent had performed his first talab. It is
settled law that an agreement to sell does not create any title or claim over
the property. It also does not create ownership in the land and, as such, a
person in whose favour such an agreement is made cannot claim a decree of
title on the basis of incomplete sale consideration. Even if such an agreement
CML APPEAL NO.24330? 2016
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contains an acceptance of receipt of an earnest or partial payment of the total
sale consideration, it does not need to be registered because all it does in lieu
Of is grant the right to get another document i.e. sale deed. Unless the sale
deed is registered and title IS transferred, the possibility always exists that the
agreement to sell might be terminated in the event of breach of any provision
contained therein. In this view of the matter, it can safely be concluded that
011 23022010 when the respondent performed Talb-eMuwathibat the sale
was not Complete therefore, the subsequent performance of Talb-e-lshhad
and filing of suit for pre-emption was pre-mature. In almost similar
circumstances, this Court in the case of Abdul Nasir Vs. Hail Said Al<bar (2010
SCMR 1770) while elaborately discussing the relevant provisions of Khyber
Pakhtunkhwa Pre-emption Act, 1987, held as under:-
"From the above statutory provisions it's clear that the right of pre-
emption becomes enforceable within 120 days from the four
situations noted above in clauses (a),(b),(c) and (d) of section 31,
ibid. In the p resent case we have gone through the a greement to
se l l dated 30-7-20Q1 wherein it has expressly been stipulated that a
sale deed shall be executed after payment of the balance
consideration amounting to Rs6.00,000 The obvious conclusion to
be drawn from the contents of the a greement to sell between the
vendor and the Detitionersvendees is that a sale as yet has not
been concluded This is so notwithstanding the fact that possession
apparently has been delivered to the petitioners in anticipation of
the sale.
2. Clause (c) of section 31 of the N.-W.f. p, Pre-emption Act
reproduced above does speak of the period of limitation starting
from the date a vendee takes physical possession, but this clause is also
posited on the fact that a sale has taken place. Section 2(d) of the
N.-WFp. Pre-em ption Act defines sale. It is evident from this
definition that it is not different from the usual connotation of the
word "sale" which, encompasses the conveyance of title to the
vendee. The a greement referred to above clearly specifies that the
title in the Property will be conveyed at a subsequent date after the
balance consideration has been paid. It follows, therefore, that a
sale has not, as yet, taken place.
(Underlined to lay emphasis)
6. 
So far as Muhammad Nazeef supra case cited by the learned
counsel for the respondent is concerned, the same is distinguishable In the
said case, the appellant/preemptor did not make Talb-e-Muwathjbat upon
cquiring knowledge of the sale but proceeded to verify from the Patwari
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regarding attestation of the sale mutation and made Talabs when the
mutation was attested. This Court while discussing various provisions of law
held that the law does not allow the pre-emptor to postpone the making of
Talb-e-Muwathibat in order to make further inquiry or probe as to whether or
not the sale was complete in all respects. The "Talab" is to be made regardless
of the credibility of the information. Learned counsel for the respondent had
argued that once possession is transferred, sale becomes complete even if the
balance sale consideration has not been paid. This aspect does not sound
sense as it does not create any right or title as per law. However, even if this
argument is accepted, the same could not be of any help to the respondent
because admittedly the possession was delivered to the appellants after they
had paid the balance sale consideration on 11.04.2010, much after the
performance of Talb-e-Muwathibat on 2302.2010. It was also contended by
learned counsel for the respondent that pursuant to Section 5 of the Transfer
of Property Act, 1882, an agreement to sell also falls within the ambit of
"permanent sale" as defined in Section 2(d) of the Khyber Pakhtunkhwa Pre-
emption Act, 1987. Before discussing this aspect of the matter, it would be in
fitness of things to reproduce the relevant provisions of law, which read as
under:-
KIRK Pre-em ption Act. 1987
"2(0) "sale" means permanent transfer of the ownership of an
immovable property in exchange for a valuable consideration
and includes transfer of an immovable property by way of hiba-
bil-iwaz or hiba-bi-shart al-iwaz.."
Transfer of Property Act. 1882
"S. Transfer of property defined. In the following sections
'Transfer of Property means and act by which a living person
conveys property, in present or in future, to one or more other
living persons, or to himself, [or to himselfi and one or more
other living persons: and to transfer property' is to perform such
act."
7. A bare perusal of Section 2(d) of the KPK Pre-emption Act clearly
suggests that the word "sale" has been defined in the same terms as it usually
encompasses. In common parlance a transaction between the buyer and the
seller in which the seller sells intangible or tangible goods, assets, or services
against money is known as a sale. In the present case, the agreement to sell
CIVIL APPEAL N0.2433 OF 2016 
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mentions in unequivocal terms that the title to the property will be
transferred at a later time once the remaining amount has been paid:
Therefore, as discussed above, the sale had yet not taken place at the time
when the respondent performed TaIbeMuWathibat. Section 5 of the KPK
Pre-emption Act, clearly states that "the right of pre-emption shall arise in
case of sale" meaning thereby that when there is no sale i.e. conveyance of
title from vendor to vendee, there would be no right of pre-emption. The
ratio laid down in Abdul Nasir supra case is also to this effect. So far as Section
S of Transfer of Property Act, 1882, is concerned, the same has wide
connotation. It is nowhere mentioned in this Section that an agreement to sell
would be considered as complete sale. it generally states that transfer of
Property means an act by which a living person conveys property, in present
or in future, to one or more other living persons, or to himself and one or
more other living persons. Conveyance of property means conveyance of title
to the vendee. Even otherwise, the Khyber Pakhtunkhwa Pre-emption Act is a
special law and it is settled that where-ever there is a special and general
principle of law applicable to a certain matter, the special law will prevail.
Reliance is placed on Safi-ud-Din Kazi Vs. Pranab Chandra Ro y ChoudharM (PLD
1950 Dacca 37).
8. For what has been discussed above, this appeal is allowed, the
impugned judgment of the learned Peshawar High Court dated 28.07.2015
rendered in Civil Revision No.25-D/2014 is set aside and the judgments of the
lowerfora are affirmed. The above are the detailed reasons of our short order
of even date.
Islamabad, the
15" of September, 2022
Approved For Reporting
lliuItrlth
