BASHIR AHMAD vs BASHIR AHMAD And 3 Other
This petition for leave to appeal arises from the dismissal of a Civil Revision by the High Court in a suit for permanent injunction concerning land allotted under the Thal Development Law. The petitioner claimed rights to the land based on an alienation by his father, acting under a power of attorney from the allottees, while the respondents relied on an earlier agreement to sell executed by the same allottees. The core legal question was whether the respondents' prior agreement to sell took precedence over the petitioner's subsequent claim. The Supreme Court upheld the lower courts' findings, affirming that the earlier agreement to sell in favour of the respondents must be given preference over the petitioner's later agreement. Furthermore, the Court held that the restoration of an allotment, following a cancellation, relates back to the date of the original cancellation, thereby validating the agreement made during the interim period. Consequently, the Court found no merit in the petitioner's arguments and refused leave to appeal.
- Does an earlier agreement to sell land take precedence over a subsequent agreement to sell the same land?
- Does the restoration of a cancelled land allotment have the effect of validating transactions made during the period of cancellation?
- Can a party raise new legal arguments in a petition for leave to appeal that were not pressed before the High Court?
- Thal Development Act 1949
ORDER
1. MUHAMMAD AFZAL ZULLAH, J.---Leave to appeal has been sought by a plaintiff; against the dismissal by the High Court, of his Civil Revision; which had arisen out of a suit for permanent injunction.
2. The suit land was the subject-matter of allotment under the Thal Development Law. This allotment, subject to fuliflment of certain conditions, could be converted into proprietorship. The petitioner's claim to the land in dispute was based on alienation in his favour by his own father, who admittedly was not allottee but was acting on a purported Power of Attorney said to have been executed in his favour by the allottees. The respondents' side relied upon a prior agreement to sell in their favour by the allottees, The petitioner having failed before the learned two Courts below moved the High Court in its Revisional jurisdiction; but without any success. He has now sought leave to appeal.
3. The High Court concluded the impugned judgment as follows:----- "The earlier agreement touching transfer of proprietary rights in favour of the respondents must have preference over the agreement said to have been made in the petitioner's favour nine years later. Therefore, as against the respondents the petitioner cannot assert his right for having the land or claiming its possession. The petitioner's suit against the respondents was rightly dismissed."
4. Learned counsel for the petitioner not being able to effectively challenge the findings of fact raised two so-called legal arguments: (i) that the earlier agreement 'relied upon by the respondent/defendant side was no agreement; because, as argued it was only a blank duly purchased Stamp Paper without any writing thereon much less the execution of an agreement to sell; and, (ii) that even if it be assumed that there was such an earlier agreement, its date of execution: namely, 5-8-1967 is such that on the said date the allottees had nothing with them which could be made subject-matter of agreement to sell---as further stated by the learned counsel, the allotment having been cancelled on 22-5-1967 was restored on 28-8-1967.
5. None of the two points raised by the learned counsel were pressed before the High Court.
6. Moreover, after hearing the learned counsel in support thereof we are unable to find any substance therein. The documents placed on this record show that there was duly executed agreement to sell in favour of the respondents. Regarding the second point suffice it to observe that the order of "restoration" of allotment, if at all it was earlier cancelled in the circumstances of this case, would be treated as having the effect from the date of cancellation; as it is not denied that the original allotme4t was "restored".
7. Accordingly there is no force in this petition, leave to appeal, therefore, is refused.