A sale in execution of a decree for specific performance of an agreement to sell is not exempt from pre-emption under section 3(5)(a) of the Punjab Pre-emption Act, 1913.

1. The question as to whether sake as per sale-deed executed by a commissioner appointed by the Court in favour of a decree-holder an agreement to sell is pre-emption arises for determination on the regular second appeal filed by the defendants Balbir Singh and his three younger brothers against the judgment and decree of learned Additional District Judge Faridkot.

2. The brief facts of the case are that Mohinder Sigh was the owner of the land in dispute meaning 40 Bighas situated in village Ramiana District Bhatinda. On 21st December, 1954, Mohinder Singh failed to executed the sale-deed in accordance with the agreement to sell the appellants brought a suit for specific performance of the agreement to sell. In the aforesaid suit a decree was awarded in favour of the appellants on the 19th April, 1958 as per judgment copy of which is Exhibit D. W. 8/3. It was ordered that Mohinder Singh did not execute the sale-deed in compliance with the decree that learned Subordinate Judge appointed his Reader Tulsi Ram commissioner to execute the sale deed is favour of the appellants. Accordingly on 8th March, 1960 Tulsi Ram executed sale deed Exhibit D. W. 8/1 in respect of the land in dispute in favour of the appellants. The sale-deed was also got registered the same day On the 7th March, 1961 Kulwant Singh respondent brought the present suit for possession by pre-emption of the land in dispute on the ground that he had a superior right of pre-emption because he was collateral of Mohinder Singh vendor and was also cosharer of the land in dispute. The sale price of Rs. 5,500, mentioned in the sale deed according to the plaintiff was excessive and had not been paid or fixed in good faith.

3. The suit was resisted by the appellants on the ground that the sale was not pre-emption because it tool place under the order so the Court. The suit was stated to be liable to be dismissed because the appellants were the tenants of the land in dispute at the item of its sale. The appellants maintained that the sale price of Rs. 5,500 had been paid and fixed in good faith. Plea of limitation was also raised.

4. Following issues were framed in the case:

"1. Whether the plaintiffs has a superior right of per-emption?

2. Is the sale pre-emption?

3. Whether the price was actually paid or fixed in good faith?

4. If issue No. 3 is not proved what was its market value at the date of sale?

5. Whether the suit is within time?

6. Relief?"

The trial court decided issues Nos. 1 and 5 in favour of the plaintiff. Issue No. 2 was decided against the plaintiff. On issue No. 3 the finding was that the sale price of Rs. 5,500/- had been paid and fixed in good faith. In view of finding on issue No. 3 issue No. 4 was held not to arise. As a result of findings on different issues the plaintiffs suit was dismissed.

5. On appeal the learned Additional District Judge held that the sale in question was sale for the purpose of Pre-emption Act and as such pre-emption. It was also found that the appellants were tenants of land measuring 8 Kanals 7 marlas comprised in Khasra Nos. 899 and 902 out of the entire land in dispute, and that the sale in respect of the aforesaid area of that the sale in respect of the aforesaid area of 8 kanals 7 Marlas of the land worked out to be Rs. 1,145/63 Paise. In the circumstances the appeal was partly accepted and decree for possession by pre-emption of land measuring 31 Kanals 13 Marals was awarded on payment of Rs. 4,354/37 paisa.

6. The four vendees have now come up in appeal praying that the suit of Kulwant Singh respondent should be dismissed while cross objections have been filed by Kulwant Singh with the prayer that the suit should be decreed in its entirety.

7. In the appeal filed by Balbir Singh and his younger brothers their learned counsel Mr. Mittal has argued that the sale in question was not perceptible. Reference in this connection has been made to sun-clause (a) of clause (5) of section 3 of the which "sake" shall not inclu