2004 PLP 799 (SCMR)

FAQIR MUHAMMAD KHOKHAR, J.‑‑‑The petitioners seek leave to appeal from judgment dated 1‑2‑1999 passed by the Lahore High Court, Lahore in Writ Petition No.84‑R of 1996.

2. The facts of the case, succinctly stated, are that the petitioners purchased, from a displaced person/allottee, rural agricultural land measuring 139 Kanals and 15 Marlas in 1963 for a consideration of Rs.7,000 out of which 87 Kanals and 5 Marlas of land, hereinafter referred to as the land in dispute, were found to be in excess of the entitlement of allottee. The same was, therefore, cancelled by the Settlement Authorities in 1965. The Writ Petition No.581 of 1996 thereagainst was dismissed by order dated 16‑11‑1997 passed by the High Court. The orders of cancellation of excess allotment were also given effect to by the Revenue Authorities through Mutation No.708 in the year 1981 and the land in dispute stood resumed in favour of Government.

3. The petitioners executed an agreement to sell dated 30‑4‑1991 in favour of the respondents Nos.4 and 5‑for the sale of the land in dispute on receipt of Rs.2,28,000 as earnest money. The respondents Nos.4 and 5 filed, before a Civil Court, a suit, for specific performance of agreement in respect of the land in dispute in which an ad interim injunction dated 5‑12‑1992 was granted. The petitioners and the respondents Nos.4 and 5 made separate applications in the year 1991 to the Revenue Authorities for the purchase of land in dispute. The application of the petitioners was rejected by the District Collector/Additional Settlement Commissioner as well as by the Additional Commissioner Revenue, Lahore Division by orders dated 31‑8‑1992 and 2‑11‑1992 respectively. The Board of Revenue‑ by letter dated 24‑1‑1995 allowed respondents Nos. 4 and 5 to purchase the land in dispute at market price. The petitioners filed Writ Petition No.84/R of 1996 against the orders dated 31‑8‑1992, 2‑11‑1992 and 24‑1‑1995 which was dismissed by the Lahore High Court, Lahore by the impugned judgment dated 1‑2‑1999. Hence this petition for leave to appeal.

4. The learned counsel for the petitioners argued that the petitioners had the prior right of purchase of the land in dispute in terms of section 3 of the Evacuee Property and Displaced Persons (Laws) Repeal Act No.XIV of 1975, hereinafter referred to as the Act, as the same was occupied by them continuously for four harvests immediately preceding Kharif, 1973. It was submitted that the effect of the agreement to sell dated 30‑4‑1991 stood nullified by the award dated 29‑12‑1994 rendered by the Arbitrators appointed with the consent of the parties.

5. On the other hand, the learned counsel appearing on behalf of the respondents Nos.4 and 5/Caveators submitted that, by virtue of agreement to sell dated 30‑4‑1991, the petitioners voluntarily surrendered their rights, whatsoever, in their favour. The said respondents, who were found to be in physical occupation of the land in dispute, were validly allowed, by the Board of Revenue, to purchase the same at market price under the Scheme prepared by the Provincial Government in this behalf.

6. We have heard the learned counsel for the parties at length. We find that the land in dispute was cancelled by the Settlement Authorities way back in 1965 and a mutation of the resumption of land in favour of the State was also sanctioned in the year 1981. The petitioners could not produce any documentary evidence at any stage of the proceedings before Revenue Authorities or the High Court to prove that they had been in continuous physical occupation of the land in dispute for four harvests preceding Kharif, 1973 and thereafter. The petitioners had voluntarily surrendered and abdicated their rights, if any, in the land in dispute on account of agreement to sell executed by them in favour of the respondents Nos.4 an

5. The petitioners also failed to make any application within reasonable time for the purchase of the land in dispute. The Lahore High Court rightly took the view that the conduct of the petitioners disentitled them to the grant of discretionary relief in the exercise of Constitutional jurisdiction. The respondents Nos.4 and 5, who were admittedly found to be in possession of the land in dispute, were rightly allowed to purchase the same on equitable grounds as well. The impugned judgment is just and fair and the same does not call for any interference by this Court in the facts and circumstances of this case. This is not a fit case for the grant of leave to appeal.

7. This petition is devoid of any merit and the same is accordingly dismissed. No order as to costs. S.A.K./A‑286/S Leave refused.