2008 PLP 1616 (CLC)

MUHAMMAD REAZ AKHTAR CHAUDHRY, C.J.

This petition for leave to appeal is directed against the judgment of the High Court, dated 27-4-2006, whereby the appeal filed by the petitioner was dismissed.

2. The relevant and necessary facts of the disposal of the instant petition for leave to appeal are that the predecessor-in-interest of respondents (namely Karamatullah Khan) brought a suit for specific performance of contract in the Court of District Judge, Kotli. It was averred by him, that through agreement, dated 21-1-1983 land measuring 10 Kanals comprising Survey No.1258 situate in Village Khuiratta was transferred to him and it was agreed that subsequently, the petitioner-defendant shall execute a sale-deed in favour of predecessor--in-interest of the respondents. It was further averred that through another agreement, dated 4-3-1992, land measuring 12 Kanals comprising Survey No.1258 was transferred to him and it was agreed that subsequently sale-deed shall be executed in favour of the predecessor-in-interest of the respondents after obtaining the proprietary rights of the suit-land. Now the present petitioner-defendant has refused to execute the sale-deed. It was craved that the defendant-petitioner may be directed to execute both the sale-deeds according to the terms of agreements in favour of plaintiff-defendant. After the conclusion of the trial, the suit was dismissed by the learned District Judge. Feeling aggrieved from the said judgment, the petitioner filed an appeal in the High Court which was dismissed by learned single Judge of the High Court. The instant petition for leave to appeal has been filed against the aforesaid judgment of the High Court.

3. Mr. Muhammad Yunus Tahir, the learned counsel for the petitioner, contended that both the Courts below have wrongly held that the agreement dated 21-1-1983 regarding the land measuring 10 Kanals is not an agreement to sell because it was a mortgage deed. He submitted that both the lower Courts have wrongly interpreted the aforesaid document.

4. While controverting the arguments of the learned counsel for the petitioner, Ch. Jehandad Khan, the learned counsel for the respondents, contended that there are concurrent findings on the question of fact that the agreement, dated 21-1-1983 is a mortgage deed and it is not an agreement to sell.

5. I have heard the learned counsel for the parties, perused the record and given utmost consideration to the arguments advanced by the learned counsel for the parties. The contemplate perusal of the agreement dated 21-1-1983 clearly shows that it is a mortgage deed; it was not an agreement to sell. There is concurrent finding of both the Courts below that this document is not an agreement to sell but a mortgage deed. I myself have gone through the document. This document clearly contains that through this document the land in dispute was mortgaged. It is quite clear that this agreement was pertaining to mortgage of the land and it is settled principle of law that once a mortgage is always a mortgage. There is nothing in this document on the basis of which it could be said that it was an agreement to sell. Both the lower Courts have rightly interpreted the said document and rightly dismissed the suit and appeal filed by the present petitioner. Neither any other legal point was raised by the learned counsel for the petitioner nor any point regarding misreading or non-reading of evidence was pointed out. Thus, finding no force in this petition for leave to appeal, it is hereby dismissed. H.B.T./90-SC(AJ&K)???????????????????????????????????????????????????????????????????????? Petition dismissed.