2004 PLP 1140 (SCMR)

TANVIR AHMED KHAN, J.

Leave to appeal is sought against the judgment, dated 19-2-1999 of a learned Single Judge of the Lahore High Court, Lahore, whereby R.S.A. No. 5 of 1986 filed by the petitioner was dismissed maintaining the earlier determinations. dated 1-11-1982 and 5-11-1985 respectively arrived at by the learned Civil Judge, Hafizabad, and the learned Additional District Judge, Gujranwala, whereby suit for specific performance filed by the respondents was decreed and the petitioner's suit for possession through, redemption was dismissed. The facts necessary for disposal of this petition, as reflected from the documents annexed with it, are that respondent No.2 Muhammad mortgaged the disputed land with Hidayat, predecessor-in- interest of respondent No.1, for a consideration of Rs.27,000 and delivered possession of the same. Thereafter, on 15-10-1978 said Muhammad entered into an agreement to sell the same land with Hidayat for a consideration of Rs.50,

000. It was agreed that after deducting the mortgaged amount of Rs.27,000, Hidayat would pay Rs.23,

000. Said Hidayat paid Rs.20,000 and it was decided that the remaining amount of Rs.3,000 would be paid to Muhammad at the time of registration of the sale-deed. Aforesaid Muhammad, instead of executing the sale-deed, colluded with the petitioner and transferred the disputed landed property in exchange to the petitioner vide exchange deed, dated 26-2-1979. However, possession of the same could not be delivered as it was with the mortgagee i.e. Hidayat. Subsequently, the property in dispute was sold on 15-5-1979 to other respondents. Feeling aggrieved by the above sale, Hidayat filed a suit for specific performance on the basis of his earlier agreement to sell, dated 15-10-1978 while the petitioners filed suit for possession through redemption. Both the suits were consolidated and issues were framed. The parties led their evidence. The learned Civil Judge, Hafizabad, through his judgment, dated 1-11-1982 decreed the suit for specific performance filed by Hidayat and dismissed the suit for redemption. The petitioner filed two appeals which were dismissed by the learned Additional District Judge, Gujranwala, vide his judgment, dated 5-11-1985. The petitioner being dissatisfied with the above judgments of the Courts below preferred R.S.A. No. 5 of 1986. A learned Single Judge of the Lahore High Court on 27-1-1997 dismissed the appeal. Subsequently, on an application moved by certain respondents, the aforesaid order was recalled and R.S.A. was re-heard on 19-2-1999 and another learned Single Judge of the Lahore High Court, dismissed the same through the impugned judgment. Hence this petition for leave to appeal. We have considered the contentions advanced by the learned counsel for the parties and have perused the entire material brought on record with their assistance. A perusal of the documents annexed with the petition demonstrates that an agreement to sell, dated 15-10-1978 Exh.P.1 of Hidayat with Muhammad and subsequent payment of Rs.20,000 (Exh.P.2) have been established on record through independent and reliable evidence. The petitioner took wavering stances; at one place he stated that the disputed property was not exclusively mortgaged with Hidayat as there were mortgagees of different shares while in the memo. of appeal before the High Court, the opening sentence starts with the averment that one Muhammad owned agricultural land which he mortgaged with Hidayat respondent. There are concurrent findings of fact determined by both the Courts below against the petitioner which have been affirmed by a learned Single Judge of the Lahore High Court. We fail to understand on what basis the petitioner allegedly exchanged the land with Muhammad of which he could not get possession, as the same admittedly was mortgaged with Hidayat. Learned counsel for the petitioner has failed to point out any legal infirmity in the judgment impugned warranting interference by this Court. Resultantly, for the foregoing discussion, the instant petition being without any force is hereby dismissed and leave refused. S.A.K./M-578/S Leave refused.