1989SCMR135 (PLP)

DAVID IQBAL, J.‑‑This petition for leave is directed against the order of the Lahore High Court, Lahore dated 19th June, 1982 whereby the regular second appeal of the respondents was accepted and the judgment and decree passed by the lower appellate Court was set aside restoring the judgment and decree passed by tile trial Court in favour of the petitioner. Briefly the facts arc that the petitioner was allotted the disputed land under the Well Sinking Scheme by the Thai Development Authority. lie took possession of the said land and brought it under cultivation. Subsequently in 1963 he transferred the possession of the suit land to Mst. Aisha respondent who is in continuous possession of the same through her husband Muhammad Ismail respondent and Muhammad Nazir respondent‑tenant. In 1972 the petitioner Filed a suit in the civil Court against the respondents seeking possession of the disputed land on the ground that he had only leased the suit land in favour of respondent No.l in a period two years but she had to surrender possession after the expiry of the lease period. He also contended that even if she had executed an agreement supported by his affidavit respecting the suit land in her favour then such agreement and affidavit in her possession were collusive and fraudulent as well as illegal. The case of respondent No. l inter alia was that the petitioner had sold the land to her in 1963 through an agreement and that she was in possession of the same as she had also paid all the installments payable in respect of the same to the Thal Development Authority. The trial Court dismissed the suit of the petitioner but on his appeal the Additional District Judge set aside. The judgment and decree of the trial Court. However, as stated above on the R.S.A. preferred by the respondents the judgment and decree of the lower appellate Court were set aside and the judgment and decree of the trial Court were restored on the ground that so far as the disputed land was concerned which was allotted to the petitioner, its transfer was prohibited by the allottee under condition 20 of the A grant as well as section 19 of the Colony Act without prior permission of the Chairman Thal Development Authority. But however, the petitioner himself was party to the agreement to sell the same in favour of respondent No.l and who had received consideration as well as delivered possession of the suit land to respondent No.1 was not in a position to avail of the provisions of condition No.20 which could have only been availed of by the grantee of the said land i.e. Thal Development Authority. Respondent No.1, therefore, was competent to defend the suit brought against her by the petitioner for possession of the said land by pressing into service the agreement to sell executed in her favour by the petitioner as she could also avail of the principle of pari delicto as against the petitioner. Reliance in this connection had been placed on 1980 S C M R 314 (Ghulam Muhammad alias Ghulamun v. Maula Dad and others) in which it was laid down that a petitioner who undertook to do all that was necessary for formally completing sale and parted with possession after receiving consideration could not rely on section 19 of the Colony Act so as to non‑suit the purchaser. We have heard learned counsel at some length and we do not find any fault with the impugned order of the High Court particularly when the provisions of section 19 of the Colony Act arc identical to those of condition to the grant referred to above. In the light of this discussion we do not find any substance in this petition which is accordingly dismissed. M.A.K./R‑70/S?????????????????????????????????????????????????????????????????????????????????? Petition dismissed.