Pakistan Case LawSHER MUHAMMAD Versus ABDUL AZIZ
This matter concerns a petition for leave to appeal against concurrent judgments of the trial court, the Additional District Judge, and the High Court, which decreed a suit for specific performance of an agreement. The respondent had filed a suit alleging that he and his two brothers, including the petitioner, had jointly acquired agricultural land through a pre-emption suit. The respondent claimed that an agreement existed whereby the petitioner and the other brother agreed to transfer their shares of the acquired land to the respondent, excluding 2-1/2 acres, in consideration for the respondent bearing all litigation expenses. The petitioner denied the existence of the agreement. The core legal question was whether the lower courts erred in finding the agreement proved. The Supreme Court held that the concurrent findings of the courts below regarding the existence and terms of the agreement were final and free from defect. Furthermore, the Court refused to entertain a new factual contention raised for the first time at the leave stage regarding partial satisfaction of the agreement. Leave to appeal was refused.
- Can a party raise a new factual contention for the first time during a petition for leave to appeal before the Supreme Court?
- Are concurrent findings of fact by lower courts subject to interference by the Supreme Court in the absence of legal defects?
ORDER
SAAD SAOOD JAN, J.---The petitioner is a brother of the respondent and one Ghulam Muhammad. Consequent upon a pre-emption suit filed by the three brothers they acquired 112 Kanals and 6 Marlas of agricultural land. On 12-11-1985 the respondent brought a suit for the specific performance of an agreement among the three brothers whereby the petitioner and Ghulam Muhammad had allegedly undertaken to transfer the land which they had jointly acquired in pursuance of the pre-emption decree passed in their favour after retaining 2-1/2 acres for themselves. The consideration for the transfer was stated to be the fact that the entire expenses of the litigation in the pre-emption suit were borne by the respondent. According to the respondent, Ghulam Muhammad had in pursuance of the agreement carried out his part of the agreement but the petitioner had failed to do so. The suit was resisted by the petitioner who denied that there was any agreement between the parties or that the entire expenses for the litigation were provided by the respondent. The trial Court decreed the suit of the respondent and its judgment was upheld by the Additional District Judge in first appeal and in revision by the High Court. The petitioner seeks leave to appeal from this Court.
2.The controversy whether under the agreement the petitioner and Ghulam Muhammad had agreed to transfer the entire land acquired through the pre-emption suit except 2-1/2 acres, stands finally disposed of by the concurrent findings of the Courts below. The learned counsel for the petitioner has not been able to show that these findings suffer from any defect. He, however, contends that his brother, Ghulam Muhammad, had already transferred to the respondent enough area so as to satisfy his claim under the agreement and for that reason he was not entitled to any further land. It is to be noticed that this contention was not raised by the petitioner either before the District Judge or the High Court. It raises a factual controversy and we are not prepared to entertain it at this stage. Leave is refused.
Judges on this bench
- Saad Saood Jan2,559 judgments
- Sajjad Ali Shah1,895 judgments