1997 PLP 961 (SCMR)

Sher Muhammad Khan and others v. Ilam Din and others 1994 SCMR 470 ref. A.R. Shaukat, Senior Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record for Petitioners. S.M. Almas, Advocate Supreme Court and S. Abul Aasim Jafri, Advocate‑on‑Record for Respondents. Date of hearing: 23rd October, 1995. AJMAL MIAN, J.‑‑‑By this common order we intend to dispose of the above two petitions for leave to appeal which are directed against a common judgment dated 16‑3‑1994 of a learned Single Judge of the Lahore High Court passed in Civil Revisions Nos.479/1982 and 599‑D/1982 filed by the petitioners against the judgment/decree dated 29‑3‑1982 of the learned District Judge, Mianwali, passed in Civil Appeals Nos.65 of 1981 and 68 of 1981 reversing the judgment/decree dated 4‑1‑1981 .of the learned Civil Judge IInd Class, Bhakkar, whereby the petitioners' suit was decreed, declining the same. The petitioners have, therefore, filed the present petitions for leave to appeal.

2. In support of the above petitions Mr. A.R. Shaukat," learned Sr. ASC for the petitioners, has vehemently contended that the ‑petitioners have been non‑suited by the learned appellate Court on the ground that the sale agreement dated 20‑3‑1972 executed by Phool Din in respect of the suit land was void as it was violative of paragraph 30 of Thal Development Scheme, hereinafter referred to as the Scheme, and section 19 of Punjab Colonization Act, hereinafter referred to as the Act, because it was in fact a sale and not an agreement to sell. His further submission was that the above conclusion of the learned Appellate Court is contrary to the contents of the sale agreement which indicate that it was merely an agreement to sell and not a sale. In furtherance of his above submissions he has pointed out that this Court while dealing with more or less an identical sale agreement in the case of Sher Muhammad Khan and others v. Ilam Din and others 1994 SCMR 470 has held that it was merely an agreement to sell and not a sale and, therefore, was not hit by above paragraph of the Scheme and aforesaid provision of the Act. On the other hand Mr. S. M. Almas, learned counsel appearing for the respondents, has argued that the contents of the above two documents are different inasmuch as in the sale agreement in question there was nothing to be done by the vendor for completion of the sale transaction, whereas in the above‑cited case under the agreement the vendor was required to execute the sale‑deed. According to him the above report is not relevant to the instant case.

3. We are inclined to grant leave to consider, whether the conclusion recorded by the learned Appellate Court and maintained by the High Court in revision that the above agreement was in fact a sale and not an agreement to sell and, therefore, was void on account of being violative of paragraph 30 of the Scheme and section 19 of the Act, is in accordance with law. Leave is, accordingly, granted. Both the parties shall maintain status quo in respect of the suit land. However, the petitioners shall furnish security to the satisfaction of the trial Court within a period of two months of the amount of mesne profits from the date of appellate judgment/decree till the last crop of the current year to be worked out by the Tehsildar of the area concerned. A.A./S‑1047/S . Leave granted.