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Petitioner: MUHAMMAD BAKHSH VS Respondent: ALLAH BAKHSH
1990 S C M R 966
1990 S C M R 966
Present: Muhammad Afzal Zullah and Saad Saood Jan, JJ
MUHAMMAD BAKHSH and another‑‑‑Petitioners
versus
ALLAH BAKHSH‑‑‑Respondent
Civil Petition for Leave to Appeal No. 606 of 1986, decided on 22nd October, 1989.
(On appeal from the judgment dated 13‑4‑1986, of the Lahore High Court in Civil Revision No. 885‑D of 1986).
Contract Act (1X of 1872)---
‑‑‑‑S. 25‑‑‑Colonization of Government Lands (Punjab) Act (V of 1912), S. 19‑‑ Constitution of Pakistan (1973), Art. 185(3)‑‑‑Plaintiff's entitlement to enforce agreement‑‑‑Defendants were allotted State land with the purpose eventually to grant proprietary rights on fulfilment of certain conditions‑‑‑Defendants by a subsequent agreement, acknowledged right of plaintiff also as 1/3rd share‑holder in the allotment and other rights ensuing therefrom, and undertook that if they failed to fulfill such acknowledgement, defendant would be entitled to obtain a decree against them‑‑‑Plaintiff having obtained such a decree, defendants' appeal and revision against that decree failed‑‑‑Leave to appeal‑‑‑Defendants' contention was; that the agreement was without consideration; and that plaintiff was not entitled to enforce the agreement as the same contravened S. 19, Colonization of Government Lands (Punjab) Act, 1912‑‑‑Agreement between the parties showed that the same was not without consideration‑‑‑Defendants acknowledged the "right" of plaintiff as original shareholder to the extent of 1/3rd, and also acknowledged that in pursuance of the same right, he was already in effective possession of suit land as its owner‑‑‑First contention of defendants had, thus, no force‑‑‑Further contention that the agreement was in contravention of S. 19 of Act V of 1912, was not pressed before High Court‑‑‑Supreme Court thus did not consider it necessary or proper to examine same‑‑‑Defendants' contention 'that plaintiff did not pay his share of Government dues in accordance with agreement, having been concluded by findings of fact, there was no justification for grant of leave to appeal‑‑‑Leave was refused.
M. Hanif Awan Advocate, Supreme Court and S. Ali Imam Naqvi Advocate‑on‑Record for Petitioners.
Nemo for Respondent.
Date of hearing: 22nd October, 1989.
ORDER
MUHAMMAD AFZAL ZULLAH, J.‑‑‑Leave to appeal has been sought by the defendant side; against the dismissal by the High Court, of their Civil Revision. It had arisen out of respondent's suit for perpetual injunction. The respondent is the real brother of the two petitioners. The suit land was allotted to the petitioners by the Thal Development Authority with the purpose eventually to grant proprietary rights on fulfilment of certain conditions. By a subsequent agreement the petitioners acknowledged the rights of the respondent also as 1/3rd share‑holder in the above‑referred allotment and other rights ensuing therefrom; and, undertook that if they fail to fulfil this acknowledgement the respondent would be entitled to obtain a decree against them.
He having obtained such a decree they filed appeal and revision which having failed, now seek leave to appeal.
Learned counsel for the petitioners, visualising that they have a very weak case on merits, raised two contentions: (i), that the agreement was without consideration; and (ii) that the respondent is not entitled to enforce the agreement as it contravened section 19 of the Colonization of Government Lands (Punjab) Act, 1912.
We have gone through the agreement with the help of the learned counsel. Its bare perusal shows that it was not without consideration. The petitioners acknowledged the "right" of the respondent as original share‑holder to the extent of 1/3rd. They also acknowledged that in pursuance of the same right, he was already in effective possession of the suit land as its owner. The first argument of the learned counsel accordingly has no force. The second argument was not pressed before the High Court. In the circumstances of this case, we do A not consider it necessary or proper to examine it. Learned counsel also tried to argue that the respondent did not pay his share of the Government dues in accordance with the agreement; but, this question also having been concluded by findings of fact, there is no justification for grant of leave to appeal. The same, accordingly, is refused.
A.A./M‑1164/5 Leave refused.