SHER BAHADAR KHAN vs SHARIF ULLAH Ss — 2021 CLC 282 PESHAWAR-HIGH-COURT

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SHER BAHADAR KHAN VS SHARIF ULLAH Ss. 13, 31 & 2(d)---Sale agreement---Suit for possession through pre-emption---Maintainability---Trial Court decreed the suit but Appellate Court dismissed the same on the ground that sale transaction was not complete at the time of filing of suit---Validity---Right of pre-emption was a feeble right which would extinguish the moment a person having such right had not performed Talb-i-Muwathibat in the sitting or meeting in which he had come to know of the sale declaring his intention to exercise right of pre-emption---If pre-emptor had first made inquiry with regard to completion of transaction of sale and thereafter exercised his right of pre-emption then such delay in performance of Talb-i-Muwathibat till completion of such inquiry would defeat his right of pre-emption---Ingredient of sale for the purpose of Khyber Pakhtunkhwa Pre-emption Act, 1987, would be transfer of possession by the vendor in exchange of consideration---Once consideration had been received then sale would be complete for exercising right of pre-emption---Vendee, in the present case, had purchased suit property through an unregistered agreement to sell and vendor had received the consideration amount---Defendant had not raised objection in the written statement that disputed transaction was not a complete sale on the day of execution of sale agreement---Transaction, in the present case, was a complete sale, in circumstances---Once factual plea that sale in question was not a complete sale was not raised in the written statement then defendant could not raise such plea at latter stage---Findings of Appellate Court that transaction between the parties was not a complete sale were not tenable and same were set aside---Judgment and decree passed by Trial Court were restored---Pre-emptor was directed to deposit the remaining amount of sale consideration within thirty days failing which suit would be deemed to have been dismissed---Revision was allowed, accordingly.

SHER BAHADAR KHAN vs SHARIF ULLAH Ss — 2021 CLC 282 PESHAWAR-HIGH-COURT

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