1989SCMR 1844 (PLP)

SAAD SAOOD JAN, J.‑‑The petitioners were owners of 645 kanals and 3 marlas of land in village Mundeki of tehsil Chunian. Out of this land, 409 kanals and 14 marlas was under mortgage with some non‑Muslims who left Pakistan after Independence. On 3‑3‑1962, the petitioners by a registered decd sold 167 kanals and 19 marlas to Din Muhammad, predecessor‑in‑interest of the respondents. The consideration for sale was Rs.25,

200. The petitioners received Rs.8,200 and the remaining amount was left with Din Muhammad for redemption of the mortgage. On 2‑4‑1963, the petitioners executed another deed, called the correction deed, whereby another area of 162 kanals and 9 marlas was shown to have been transferred to Din Muhammad under the earlier deed. This deed too was got registered. The mutation relating to the sale was attested on 8‑7‑1964. On 1‑2‑1968, the Assistant Collector set aside the mutation on the ground that after the sale the petitioners were left with an area less than that of a subsisting holding and on that account the transaction was hit by the provisions of Martial Law Regulation No.64. The respondents challenged the decision of the Assistant Collector in appeal before the Collector. The Collector came to a contrary conclusion. Accordingly, he set aside the order of the Assistant Collector and restored the mutation already attested. The petitioner filed an appeal before the Additional Commissioner which remained unsuccessful. They then tiled a civil suit. In their plaint, they not only challenged the genuineness of the sale‑deed but also reiterated their objections with regard to the validity of the transaction in the light of the provisions of Martial Law Regulation No.64. The trial Court dismissed their suit and their appeal before the Additional District Judge also failed. They then Filed a revision petition in the High Court. This too was dismissed. They now seek leave, to appeal from this Court. 2. 1n support of this Petition, it is contended that the petitioners had transferred the land to Din Muhammad on the understanding that he would get the mortgage redeemed. Din Muhammad failed to perform this part of the understanding and therefore an essential consideration for the sale had failed. Consequently, the sale even if genuine, was liable to be set aside. It is to be noticed that this plea was not taken before the High Court. We would therefore not entertain it.

3. It is then contended that the sale made by the petitioners violated the provisions of Martial Law Regulation No.64 and was for that reason void. This objection was rejected by the High Court with the following observation: "Even otherwise, the two petitioners had claimed the reliefs of declaration and injunction which arc not capable of being granted as a B matter of mere course. The petitioners themselves are the alienors and are out to canvass invalidity of their own voluntary act, equity is not in their favour and the reliefs having been refused by the two Courts below, their judgments are clearly just and do not call for interference. We are not inclined to take a different view in this matter, particularly when, at no stage so far the petitioners have offered to refund the consideration admittedly received by them.

4. Learned counsel for the petitioners has also drawn our attention to section 19 of Pakistan (Administration of Evacuee Property) Act, 1957, which reads as undcr:‑ "The Central Government may by notification in the official Gazette, declare that in such area and for such period as may be specified in the notification, the transfer of any property or class of property, or the creation of any right or interest therein or encumbrance thereon, shall be prohibited and where any such declaration has been made, no such transfer or creation shall be made during the period in the area except with the previous approval in writing of the Custodian: Provided that nothing in this Section shall prevent the transfer of movable property of which an evacuee has immediate physical possession." He states that as non‑Muslim had mortgagee right in the land in dispute the sales were affected by this section. We are not inclined to give leave to appeal to consider the question which has been raised for the first time in this Court. The petitioners may. if so advised, take it before the relevant authorities. The petition is dismissed. M.A.K./H‑71/S Petition dismissed.