1993 PLP 538 (SCMR)

‑‑‑‑S.30‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Non‑maintainability of second suit of allottee‑‑‑Such contention being raised in appeal was not raised before High Court‑‑‑Appellant's case before High Court was that allottee (respondent) had sold away land in question in violation of the terms upon which allotment was made to him‑‑‑High Court, on that point declined to interfere with concurrent findings of Courts below‑‑‑Contention now being raised by appellant would run counter to the pleadings of appellant himself for he had admitted in his written statement that allottee had already paid instalments in terms of decree passed in earlier suit‑‑‑Appellant's only contention was that allottee had not paid the Tawan as directed by the First Appellate Court in subsequent suit ‑‑‑Tawan being not one of the requirements of earlier suit, appeal had no merit and was dismissed in circumstances. Sh. Abdul Maajid for Appellant. Respondent: Ex parte. Date of hearing: 15th November, 1992. SHAD SAOOD JAN, J.‑This is an appeal by special leave from the judgment dated 18‑1‑1988 of the Lahore High Court, affirming the judgment of the District Judge, Mianwali, which had partly modified the decree of the Civil Judge, Bhakkar.

12. The respondent was allotted 150 acres of State land in Rakh Dhighana under a Tubewell Sinking Scheme. He entered into possession thereof in the year 1953. The land was resumed on 28‑2‑1965 primarily for the reason that he had failed to pay the instalments towards the purchase money. He filed a suit in the Court of the Civil Judge at Bhakkar to challenge the order of resumption and the suit ended in a compromise. According to the compromise the suit was to stand decreed in the event that the respondent paid all the instalments due till 19‑4‑1974 and on his failure to do so it was to be dismissed. On 26‑5‑1980 another order of resumption relating to land allotted to the respondent was passed. He again filed a suit in the Court of Civil Judge, Bhakkar. It was decreed. On appeal by the appellant the learned District Judge upheld the decree but directed the respondent to pay Rs.37,242.69 to the appellant on account of the Tawan and the unpaid instalments. Being dissatisfied with the judgment of the learned District Judge the appellant filed a revision petition in the High Court but without any success. He has now come in appeal to this Court.

3. Leave to appeal was granted to the appellant to consider the following contention:‑‑ "In support of this petition it is contended that according to the admission of the respondent himself he deposited the last instalment on 18‑1‑1981. It was a clear indication of the fact that he had failed to abide by the terms of the compromise decree. In the circumstances his second suit was not maintainable." It is to be noticed that this contention was not raised by the appellant before the High Court. On the other hand his case before the High Court was that the respondent had sold away the land in dispute in violation of the terms upon which the allotment was made to him. On this point the High Court declined to interfere with the concurrent findings of the first appellate Court and the trial Judge who held that there was no proof that the respondent had alienated the allotment by sale to anyone. As regards the contention now being raised by the appellant it runs counter to the pleadings of the appellant himself for he admitted in his written statement that the respondent had already paid the instalments in terms of the decree passed in the earlier suit. His only grievance therein was that the respondent had not paid the Tawan. Now, the payment of Tawan was not one of the requirements of the decree passed in the earlier suit. This being the position, we find no merit in this appeal which is hereby dismissed. There will be no order as to costs. A.A./T‑85/S Appeal dismissed.