1995 PLP 11 (CLC)

Through this constitutional petition the petitioner has challenged the order dated 17‑12‑1983 of Additional Settlement‑ Commissioner, Faisalabad passed pursuant to an order of this Court remanding the case to him in Writ Petition No. 111‑R of 1974.

2. Brief facts of the case are that Plot No. 4796 at Faisalabad was transferred to petitioner vide Deputy Settlement Commissioner's order dated 11‑2‑1963 in Scheme No. VI and P.T.O. No. 195411 was issued in his favour. On .3‑10‑1964 the petitioner executed an agreement of association with Muhammad Hussain respondent No.3 and thereby surrendered full rights of ownership in his favour. This agreement was approved by the Deputy Settlement Commissioner on 26‑12‑1969 in absence of the petitioner and the associatee i.e. respondent No.3 succeeded in obtaining PTD on 13‑2‑1970. On 11‑6‑1970, petitioner gave an application to Deputy Settlement Commissioner, Faisalabad (Annexure `B') wherein he acknowledged the agreement of association with respondent No. 3 but requested that the PTD issued in favour of Muhammad Hussain respondent be set aside as the same was obtained by producing some other person instead of the petitioner. This application was turned down by the Deputy Settlement Commissioner, Faisalabad vide his order dated 30‑6‑1970. The petitioner filed an appeal before the Additional Settlement Commissioner who accepted the same vide order dated 30‑8‑1972 and remanded the case to Deputy Settlement Commissioner to hear the parties and collect evidence as to whether Allauddin petitioner did execute the agreement with respondent or not. The Deputy Settlement Commissioner after recording evidence and hearing the parties reported that the agreement was executed by the parties and that Muhammad Hussain petitioner has backed out from the terms of the agreement. He further reported that the approval of the agreement was made in absence of petitioner A1tauddin. He recommended cancellation of the agreement dated 3‑10‑1964. The Additional Settlement Commissioner agreed with the Precommendation of the Deputy Settlement Commissioner and vide his order dated 12‑10‑1973 cancelled the agreement/surrender deed and directed for refund of the payment made by respondent Muhammad Hussain. Respondent No.3 challenged the aforementioned order in Writ Petition No.111‑R of 1974 which was accepted and the case was remanded for afresh decision by the Additional Settlement Commissioner. Learned Additional Settlement Commissioner vide impugned order dated 17‑12‑1983 accepted respondent No.3's appeal and held that the agreement dated 3‑10‑1964 was executed between the parties and was also acted upon with consent of both the parties. and that possession of the premises was also handed over on the same date.

3. Learned counsel for the petitioner has challenged the impugned order dated 17‑12‑1983 on the following grounds:‑‑‑ (i) That the learned Additional Settlement Commissioner has not adverted to the fact that the alleged deed of association was approved ex parte and hence, the same was void ab initio. (ii) That the report of the Deputy .Settlement Commissioner dated 9‑5‑1973 which was confirmed by Additional Settlement Commissioner on 12‑10‑1973 has been ignored without any justifiable reason. (iii) That the approval of an agreement without the consent of the original transferee is of no legal value. Moreover, surrender deed can only lie in a case when the original transferee is. unable to pay the price.

4. Learned counsel for respondent No.3 has controverted the submissions made by the learned counsel for the petitioner and has referred to Annexures R‑1, R.‑2, R‑3 & R‑4 to show that the agreement was duly executed and payments have been acknowledged vide R‑2 and R‑3 and the same have not been denied by petitioner even before this Court.

5. I have heard learned counsel for the parties and also perused the record. The petitioner does not deny the execution of agreement dated 5‑9‑1964 (Annexures R‑1 & R‑3 by which he sold the plot in question to respondent No.3 for consideration of Rs.6,300 part payment was made through Annexure R‑2 and the possession was handed over to respondent. Again on 3‑10‑1964 the petitioner received balance amount of Rs.5,800 which has been acknowledge through receipt Annexure R‑3 which is signed by the petitioner. It is mentioned in R‑3 that Muhammad Hussain petitioner had shifted to Lahore and that he had surrendered his ownership rights qua the plot in question and Muhammad Hussain respondent No.3 may obtain PTD after the requisite formalities. The execution of the agreement is not denied by learned counsel even today. His only grievance is that the Deputy Settlement Commissioner should have heard him before he approved the agreement vide his order. dated 26‑12‑1969. It is in evidence that a notice was issued to him but the report of the process‑server was that he had left the place for good five years ago. Annexure R‑3 (dated 3‑10‑1964) confirms the report of the process server wherein it is mentioned. Even in his application dated 11‑6‑1970 moved before the. Deputy Settlement Commissioner for setting aside the PTD he admits having surrendered his rights through mutual agreement. The petitioner was given full opportunity of being heard by the Additional Settlement Commissioner after the remand order passed by this Court. Nothing has been shown to indicate that he had been prejudiced or there has been any violation of law. Agreement dated 3‑10‑1964 executed between petitioner and respondent and the factum of delivery of possession to respondent No.3 and the payment of the price for the plot in dispute have been proved beyond any doubt. The finding of fact arrived at by a forum of competent jurisdiction cannot be interfered with unless it is shown that same is perverse or interrogation to law. The petitioner does not deny having signed the document whereby he surrendered his ownership rights in favour of respondent No.3 qua the disputed plot. He wants to wriggle out from the agreement to which he is a signatory. His conduct does not entitle him to any relief in equity. This view finds support from observations of the Hon'ble Supreme Court as well as that of the Sindh High Court in following cases:‑ (1) Muhammad Juran Mondal v. A.H. Chaudrhy (pLD 1969 SC 516 and (2) Tando Adam Transport v. M.B.R. PLD 1966 (W.P,) Karachi 527) In view of the above the petition has no merit which is hereby dismissed with no order as to costs. A.A./A‑687/L Petition dismissed.