MUHAMMAD ALI KHAN AND Another vs Malik MUHAMMAD IBRAHIM AND Another
This matter arises from a petition for leave to appeal against the concurrent judgments of the lower courts, which decreed a suit for declaration and injunction filed by the respondents. The core legal question concerned whether an agreement to sell an evacuee property executed by petitioner No. 1 prior to its transfer in favor of petitioner No. 2 (his son) was binding, and whether the petitioners could seek the ejectment of the respondents notwithstanding the part performance of the agreement and delivery of possession. The Supreme Court of Pakistan held that while there might be force in the legal submissions regarding the binding nature of the agreement on the transferee under evacuee laws, the petitioners could not be permitted to resile from the agreement and seek ejectment after receiving the consideration and placing the respondents in possession, relying on technical pleas. The petition for leave to appeal was accordingly dismissed.
- Whether an agreement to sell executed by a person prior to the transfer of an evacuee shop is binding on the subsequent transferee?
- Can a party be allowed to resile from an agreement to sell and seek ejectment after accepting consideration and handing over possession on technical legal pleas?
ORDER
1. NASIM HASAN SHAH, J.-A shop in Rawalpindi bearing No. C-495 and situate in Bazar Talwaran was an evacuee shop. It was transferred in favour of Muhammad Aleem Khan, petitioner No. 2 by the Settlement Department. He is the son of Muhammad A.I Khan, petitioner No. 1 herein. The petitioner No. 1 allegedly executed an agreement with the respondent on 2-9-1961 for the sale of this shop in their favour after the transfer of the shop by the Settlement Department to them. A sum of Rs. 9,760, was received as consideration and in part performance of this agreement, the respondents were put into possession thereof.
2. The petitioners, however, after the transfer of the shop by the Settlement Department and the issuance of the P. T. D. In favour of petitioner No. 2, instead of implementing the said agreement, sought to eject the respondents from the shop. This constrained them to file a suit for declaration and injunction in which it was asserted that in pursuance of the agreement dated 2-9-1961 and they having been put in possession of the shop in part performance-thereof, could not be dispossessed and, in fact, were owners of the shop. This suit was decreed. The appeal against it preferred by the petitioners was dismissed by the Additional District Judge and their revision before the High Court also having failed hence this petition for leave to appeal.
3. Ch. Khalil-ur-Rehman, learned counsel for the petitioners, has mainly contended that the shop in dispute having been transferred in favour of petitioner No. 2 any agreement made by petitioner No. 1 for its sale was not binding on the petitioner No. 2 and the plea that the petitioner No. 2 was only benamidar for petitioner No. 1 could not be sustained, especially in the face of the statutory provisions of the relevant evacuee laws.
4. There is some force in these submissions on the legal plane but was consider that the petitioners after having led the respondents to believe that they would get the shop on payment of its consideration and in pursuance of this arrangement having put them in possession of it, cannot be allowed to resile from this position after having gobbled up the consideration, merely on the basis of highly legalistic and technical pleas.
5. This is, therefore, not a fit case for grant of leave to appeal which is, accordingly, dismissed hereby.