2006 PLP 2000 (YLR)

CH. IJAZ AHMAD, J,

The brief facts out of which present writ petition arises are that respondent No.1 purchased the land in-question from the original owner Ghulam Rasool and others through an agreement to sell dated 1-4-1974. The original owner failed to execute sale-deed in favour of respondent No.1. Respondent No.1 being aggrieved filed a suit for specific performance of the agreement to sell dated 1-4-1974 qua the land in question in the Court of Civil Judge, Faisalabad on 12-4-1977, who decreed the suit in favour of respondent No.1 vide judgment and decree dated 6-2-1984, which was upheld by this Court on 2-12-1984 as well as by Apex Court vide judgment dated 24-11-1984. Respondent No.1 filed execution petition before the executing Court on 4-4-1984. During the pendency of execution petition respondent No.1 executed an agreement to sell dated 16-3-1986 in favour of petitioner. According to the terms and conditions of agreement to sell dated 16-3-1986, the petitioner has right to take possession of the land in question from respondent No.1. The petitioner filed an application on 24-2-2003 before the Executing Court under section 151 of C.P.C. for securing possession from respondent on the basis of agreement to sell dated 16-3-1986. The learned Executing Court dismissed the same vide order dated 8-4-2005. The petitioner being aggrieved filed revision petition before the learned Additional District Judge, Faisalabad, who also dismissed the same vide order dated 10-5-2005. Hence, the instant constitutional petition.

2. The learned counsel of the petitioner submits that during the pendency of execution petition, the petitioner secured right qua the land in question from respondent No.1 according to the agreement to sell dated 16-3-1986, but this fact was not considered by the Courts below in its true perspective, which is not consonance with the mandatory provisions of law. He further submits that the petitioner is well within his right to secure the possession of land in question on the basis of provisions of section 53-A of Transfer of Property Act, 1982. He further submits that both the Courts below have non-suited the petitioner merely on the ground that agreement to sell does not create title qua the land in question in favour of the petitioner, therefore, the impugned order is not sustainable in the eye of law.

3. I have given my anxious consideration to the contention of learned counsel of the petitioner and perused the record.

4. It is better and appropriate to reproduce the operative part of impugned order of the Revisional Court to resolve the controversy between the parties; "The execution of agreement based upon by petitioner in his suit and petition under section 151 of C.P.C. has been denied by respondent No.1. Therefore, it could not be held that present petitioner had fit case for the grant of relief prayed for. The perusal of agreement of sale indicates that present petitioner was entitled to get the possession of land in dispute at his own expenses of his own within one week after the date of registration of sale-deed in favour of respondent No.1, which was registered on 23-7-2001. In the opinion of this Court, learned Executing Court has rightly held that agreement (unregistered) execution of which has been denied by the other party does not create any right and for that reason on the basis of such agreement relief like the relief prayed for by the petitioner cannot be granted. The learned executing Court considered this legal position quite in accordance with law and passed the order under revision. The learned executing Court thus, did not commit any illegality in passing the order under revision, which may be interfered within the revisional jurisdiction. Order under revision being quite legal does not call for any interference by this Court in revision, it is, therefore, upheld and revision is dismissed in limine."

5. Mere reading of the aforesaid operative part clearly reveals that respondent No.1 has denied the execution of agreement to sell dated 16-3-1986 in favour of petitioner. Both the Courts below after proper appreciation of evidence on record have given concurrent findings of facts against the petitioner that agreement to sell dated 16-3-1986 was not executed by respondent No.1 in favour of the petitioner. Coupled with the facts that the petitioner has not filed any application in terms of agreement within specified period, therefore, both the Courts below have A rightly dismissed the application for the grant of ad interim relief. It is settled principle of law that it is the prerogative of the learned trial Court to exercise discretion subject to the condition that discretion must be exercised with cogent reasons. Both the Courts below have exercised discretion by refusing ad interim relief to the petitioner with cogent reasons. It is also settled proposition of law that constitutional petition is not maintainable against the concurrent findings of Courts below as per law laid down by the superior Court in the following judgment: "Khuda Bakhsh v. Muhammad Sharif and others" (1974 SCMR 279). "Muhammad Sharif and others v. Muhammad Afzal and others" (PLD 1981 SC 246). "Abdul Rehman Bajwa, v. Sultan Ahmad and others" (PLD 1981 SC 522). "Muhammad Zaman and others v. Muhammad Ramzan Khan." (1993 SCMR 197). "Sarfraz and others v. Sultan Ahmad and others" (2002 MLD 886). It is settled principle of law that this Court has no jurisdiction to substitute its own findings in place of findings of the tribunals below while exercising power under Article 199 of the Constitution, as per principle laid down by the Division Bench of this Court and by the Honourable Supreme Court in the following judgments:-- "Board of I&S.E., Lahore v. M. Musaddaq Naseem" (PLD 1973 Lahore 600). "Syed Azmat Ali Shah v. Chief Settlement and others" (PLD 1964 SC 260) It is also settled principle of law that real hardship comes in the field to the decree-holder at the time of execution of the decree. The decree was secured by respondent No.1 on 6-2-1984 and execution petition is still pending adjudication. Even otherwise, I do not find any infirmity or illegality in the impugned orders of the Courts below. In view of what has been discussed above, this Constitutional petition has no merit and the same is dismissed. H.B.T./M-119/L????????????????????????????????????????????????????????????????????????????????? Petition dismissed.