1992 PLP 835 (SCMR)

‑‑‑‑OXXIII, R.3‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑ Petitioners/defendants , in earlier suit, had agreed to give to respondents/plaintiffs a specified piece of land instead of land in question in that suit‑‑‑Court passed order on basis of such statement‑‑‑Efforts of respondents to get a mutation entered as a result of and in accordance with agreed order in the previous suit, on the basis of statements of parties did not succeed, whereupon they filed a fresh suit for possession‑‑‑Petitioners contested such suit which was dismissed by Trial Court and the First Appellate -Court‑‑‑High Court, in second appeal, decreed respondents' suit‑‑‑'Validity‑‑ Piece of land which was promised by petitioners to respondents in earlier suit was the same as the land in question in the present suit‑‑‑Well‑reasoned finding by the High Court against petitioners were also on record on such question‑‑‑Petitioners claimed that respondents having not given up their claim on the land involved in earlier suit they were not obliged to give the present suit land to them‑‑‑Factual part of such contention was refuted by respondents vehemently with further statement that previous suit of respondents stood dismissed with regard to the land involved therein, therefore, there was no question of respondents laying any claim or control over the said land; respondents would not have any claim, right or interest of any sort in the land involved in earlier suit‑‑‑Petition, in view of such clarification and observation was without force and was dismissed‑‑‑Leave to appeal was refused. Muhammad Munir Peracha, Advocate Supreme Court and Ch. Akhlar Ali, Advocate ‑on‑Record for Petitioners. Malik M. Jaffar, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate ‑on‑Record for Respondents. Date of hearing: 7th May, 1991. MUHAMMAD AFZAL ZULLAH, CJ.‑‑‑Leave to appeal has been sought by the defendants' side in a suit for possession against the acceptance by the High Court of respondents' Regular Second Appeal. The suit was originally decreed in favour of the respondents. On appeal the case was remanded. In this second round of litigation the suit was dismissed. The respondents' appeal was also dismissed. But it was decreed by the High Court in second appeal as noted above, therefore, the defendants' side has now sought leave to appeal. Learned counsel for the petitioners has taken us through the statements made by both the parties in an earlier suit filed by the respondents' side (one of the plaintiffs was himself a lawyer). It was also a suit for, possession against the petitioners but in respect of Khasra Nos.1534 and 1536 (5 Kanals 3 Marlas). The petitioners' side had agreed to give to the respondents' side another piece of land 5 Kanals 3 Marlas instead of the land in dispute in that suit. It is stated that the effort to get a mutation entered as a result of and in accordance with agreed order in the previous suit on the basis of the statements of the parties did not succeed. The respondents' side was compelled to file a fresh suit for possession. But this time not for the earlier suit land because according to them in the aforementioned agreement other Khasra numbers measuring the same area 5 Kanals 3 Marlas was agreed to be given to the respondents/plaintiffs. The petitioners/defendants contested the suit with the result as noted above. We asked the learned counsel for the petitioners: whether, the petitioners stick to the arrangement arrived at in the earlier litigation, he answered in the affirmative. If so, we asked the learned counsel, why did they contest the present suit. In the first instance he stated that the suit, land in the present litigation is not the same which was promised by the petitioners to be given to the respondents. But when asked to give the Khasra numbers of the so‑called other piece of land learned counsel frankly stated that he would not be able to give the particulars of the other land. On this the learned counsel for the respondents stated that the same question was asked in the High Court from the same learned counsel appearing for the party but he had rendered the same answer, from this it can be concluded that there being no other land, the piece of land which was promised by the petitioners to the respondents is the same as is now the suit land. Besides there is a well, reasoned finding by the High Court against the petitioners on this question. Lastly the learned counsel for the petitioners contended that they promised to give land to the respondents but this was in place of the other land which was the subject‑matter of the earlier suit. And because the respondents have not given up their claim on the said other land also, therefore, the petitioners are not obliged to give the present suit land to them. The factual part of this contention was refuted by the learned counsel for the respondents vehemently with further statement that the previous suit of the respondents stood dismissed with regard to the suit land involved therein; namely, Khasra Nos.1534 and 1536, therefore there was no question of the respondents' laying any claim or control over the said land. Even if, he further stated, the petitioners have any such marginal grievance he categorically declared that the respondents do not have any claim nor they would claim any right or interest of' any sort in the suit land involved in the previous litigation. With this clarification and observation we find no force in this petition. Leave to appeal accordingly, is refused. A‑A./Z‑132/S Leave refused.