1998 PLP 722 (SCMR)

FAZAL ILAHI KHAN, J.

Respondent No. 1 filed the present suit, of which this petition for leave to appeal has arisen, against the petitioner and respondents Nos. 3 to 5 for specific performance of sale agreement, dated 19-8-1973 and for permanent injunction.

2. It was alleged in the plaint that the land in suit alongwith the land comprised in Khasras Nos.6490 and 6492 was owned by the petitioner and respondents Nos. 3 to

5. That the respondent was cultivating the suit land and other land of the petitioner as tenant. That petitioner and respondents Nos. 3 to 5 started selling their land, which was in possession of respondent No.1 as tenant, for construction purpose but their purpose could not be served as they were out of possession; hence, unable to deliver possession to the vendees. Accordingly parties, with intervention of elders, entered into a mutual settlement under which the respondent/plaintiff had to surrender the land under his tenancy to the petitioner and respondents Nos.3 to 5 and in consideration thereof he was to retain the land measuring 14 Marlas comprised in Khasra No.6490 and 1 Kanal 1 Marla comprised in Khasra No.6492. Out of this land 1 Kanal 5 Marla was surrendered by the petitioner and respondents Nos. 3 to 5 and land measuring 10 Marla was agreed to be sold to the respondent/plaintiff for a sum of Rs.1,

000. A sum of Rs.500 was paid per agreement, dated 19-8-1973. Respondent No.1 sold, out of the aforementioned land, 14 Marla of land to respondent No.2 while he raised huge construction over the remaining area measuring 1 Kanal 1 Marla and is residing in it.

3. Petitioners in their joint written statement contested the suit on several legal and factual pleas. It was stated that in the year 1973 tenants had been given unbridled authority by the then Government in power due' to which the petitioners were forced to execute the deeds as respondent/plaintiff was a tenant of his agricultural land. That they did execute the deed but it was without consideration and was the result of coercion and force as stated above.

4. After framing of issues and recording of evidence of the parties thereon the learned Trial Court decreed the suit on 25-4-1992. Appeal against the same filed by the petitioner was accepted by the learned Additional District Judge on setting aside the judgment and decree and dismissed the suit. His view of the matter was that the respondent/plaintiff failed to prove his case. The learned High Court vide its judgment, against which leave to appeal is sought for, accepted the revision petition of the respondent/plaintiff, set aside the judgment and decree of the learned Additional District Judge and restored that of the trial Judge.

5. After hearing the learned counsel for the petitioner and perusal of the record we find no infirmity in the judgment of the learned High Court. Respondent/plaintiff in this suit based his claim on mutual settlement arrived at between the parties in terms that as respondent/plaintiff was sitting tenant of the land allotted to the petitioner, and they were disposing of this land but they could not transfer physical possession of it to the vendees, respondent was offered the land in suit for consideration of handing over vacant possession of allotted land without going to the prolonged litigation of seeking his ejectment through the legal process. The petitioner did not challenge this aspect of the case rather raised a plea that such settlement and execution of the agreement deed was the result of coercion and undue force used by the respondent who was tenant in possession of the land. That the respondent was not willing to hand over possession of the land to the petitioners and their vendees because of the undue indulgence shown to the tenants in possession by the then Government in power. That agreement was also challenged to be against public policy. They denied the receipt of Rs.500, towards the sale consideration of part of the suit land. This aspect of the case has been duly considered by the learned trial Judge and the learned High Court and they have reached the conclusion that it was voluntary agreement between the parties and was arrived at with the help of the elders of the Ilaqa and that there was nothing wrong in such settlement specially when the respondent was admitted to be an old tenant of the suit property volunteered to surrender possession for consideration of the land agreed upon. This agreement was acted upon. The respondent handed over the possession of the land to the petitioners and their vendees and also retained the land in question on which he raised construction which fact has not been denied by the petitioners. The execution of the deed is proved through the independent evidence and such deed was not challenged till the respondent filed the present suit.

6. The question of limitation has also been dealt with by the learned High Court as well as by the Trial Court in accordance with the settled principle of law. It is not denied that the petitioners' allotment regarding the land was cancelled in the year 1974 and it was ultimately restored in the year 1985, therefore, after such restoration respondent had every right to ask for enforcement of the settlement arrived at between the parties. For all these reasons we find no substance in this petition and disallow the prayer for leave to appeal. A.A./A-40/S Leave refused.