SHAMS DIN Versus JALAL DIN

ORDER

1. JAVID IQBAL, J ‑‑This petition for leave is directed against the judgment of the Lahore High Court, Lahore dated 18 May, 1982 whereby the R.SA. of the petitioner was dismissed.

2. Briefly the facts are that an agreement to sell upper portion of the disputed property was made by the petitioner with Mst. Nawab Bibi respondent on 15th November, 1965 . In this agreement to sell, the petitioner agreed to sell the said portion of the property in dispute to the respondent for Rs.8,000 and he. received a sum of Rs.100 as earnest money through receipt. The deed of agreement executed on 15th November, 1965 as well as receipt are part of the record. Since the petitioner failed to honour his commitment the respondent instituted a suit on 12th November, 1968 to recover possession of the said property. The petitioner denied having agreed to sell the said property to the respondent or having executed any deed of agreement. The trial Court decreed the suit of the respondent for possession through specific performance of the contract of sale of the upper portion of the said property. The appeal of the petitioner was dismissed by the Additional District Judge and his R.SA. before the Lahore High Court also met the same fate. Hence the present petition.

3. Learned counsel for the petitioner argued before us that it was not the respondent who had made an agreement to sell with the petitioner but her son, Therefore he had not entered into any such agreement with the respondent. This argument had been held to be without any force as the respondent's son was her Mukhtar and had made an agreement to sell with the petitioner in that capacity It was next submitted that no time was specified in the alleged agreement ands that this was to the disadvantage of the petitioner. 1t was pointed out that although the agreement was entered into in 1965, the respondent instituted the suit 3 years thereafter in 1968. This argument of the learned counsel is also without any force as he has himself voluntarily received Rs.100 as earnest money and issued a receipt to that effect under the said agreement. Thus the earnest money was received in part performance of the contract. The suit might have been filed by the respondent when the petitioner had failed to honour his commitment. In any case the Courts below as well as the High Court are unanimous that the petitioner had no case. In that view of the matter we do not find any substance in this petition which is accordingly dismissed.

4. M.I./W‑34/S Petition dismissed.