SHAH MUHAMMAD vs ATTA MUHAMMAD-i

' FALAK SHER, J.--- Shah Muhammad predecessor-in-interest of the petitioner claiming to have agreed to purchase 1/2 of the spelt out 96 Kanals of land from Atta Muhammad predecessor-in- interest of the respondent having been allotted to the latter under Jadeed Scheme vide agreement to sell dated 26-2-1996, consequent upon conferment of proprietary rights and execution of sale- deed dated 8-12-1979, pursuant thereto, filed declaratory Suit (No,14 of 1980) on 11-10-1980 contending to be owner in possession of 1/2 of it qua which the respondent was Benami owner under the sale-deed with a consequential relief of permanent injunction in the nature of restraint order which was dismissed being not maintainable in terms of the finding returned on issue No,3 by a Civil Judge, Burewala on 3-2-1986 and was affirmed in Appeal (No,106/13/89) dated 19-7-1990 by Additional District Judge, Burewala as well as in revision (C.R. No,741-D of 1990) by a learned Judge of the Lahore High Court, Multan Bench vide the impugned judgment, dated 31-10-2002, observing the following in para.9:-- "(9) Admittedly, this objection was raised by the respondent for the first time in para. 3 of the preliminary objections of his written statement. The petitioner did not bother to correct the form of the suit, thereafter, a finding was recorded by the learned trial Court to the effect that the petitioner should have filed a suit for specific performance. Despite that no application to amend the suit was made. Even thereafter, the Appellate Court also gave a finding against the petitioner that the form of the suit is not correct and his suit is not maintainable in its present form, despite that no application was filed since 1990, when this petition was originally filed in this Court. Now at the fag end of the litigation when this petition is being finally heard, this application has come on record.

The conduct of the petitioner does not entitle him to any indulgence by this Court at this stage. The judgment cited by the learned counsel for the petitioner is distinguishable, primarily on the ground that an application for amendment was filed by the petitioner in that case in the High Court at the earliest stage, while he had no occasion to file such an application before the learned lower Appellate Court in the cited case as an appeal was filed in that case by the other side and not by the appellant in the High Court. In the instant case, the petitioner had all the occasions i,e, before the trial Court, before the learned lower Appellate Court and before this Court to file such an application at the appropriate time. Since he had been adamant to contest his case as pleaded, therefore, no indulgence is called for. This application is accordingly dismissed."

' Further concluding that:- ' "An agreement to sell being not a document of title cannot form the basis for the grant of a declaration under section 42 of the Specific Relief Act."

2. Against which leave to appeal is being sought, however, despite the query learned counsel could not controvert the concurrent findings of fact recorded by the three Courts below on a settled legal proposition, to which no exception can be taken. Resultantly, is dismissed, declining leave.