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Civil Petition No. 298 of 1975, decided on 28th January, 1981.
(On appeal from the judgment dated 16th December, 1974 of the Lahore High Court in Writ Petition No. 1599-R of 1974).
----Arts. 199 & 185 (3) - Contention that first agreement having not been acted upon could be superseded by another agreement Settlement authorities, held, rightly held second agreement to be not valid in presence of first agreement and rightly ordered its cancella tion-Next contention that both agreements could be given effect and one-half portion could be transferred to each one of two con testants not having been raised in earlier rounds of litigation disallowed to be agitated before Supreme Court for first time.
Muhammad Rafiq Chauhan, Advocate Supreme Court and Ejaz Ahmad Khan, Advocate-on-Record for Petitioner.
Sh. Masud Akhtar, Advocate-on-Record for Respondents Nos. 2 to 6.
Date of hearing : 28th January, 1981.
-This petition is directed against the judgement dated 16th December, 1974 passed in Writ Petition No. 1599-R of 1974 by a learned Single Judge of the Lahore High Court.
The case has a chequered history and has come before the High Court once before when it was remanded back for fresh decision. This was taken by the Settlement Commissioner, Sargodha Division, on 8th May, 1974 against which Writ Petition No. 1599-R of 1974 was directed and has been dismissed by a judgment dated 16th December, 1974 by a learned Single Judge. Hence, this petition for leave to appeal.
The facts in a nutshell are that one Allah Ditta was transferred Pro perty No. 212, Block No. 4, Gojra, District Lyallpur. He entered into an agreement of association with Nathu, now dead and represented by his legal representative (respondent No. 6), whereby Nathu had to pay the transfer price of the entire house and in consideration thereof was to be transferred half of the property. However, due to certain differences with him Allah Ditta entered into another agreement on 10th October, 1961 with Eidu, the present petitioner, by which he agreed to transfer him half portion of the property. The question arose as to which of these com peting agreements was to be given effect to. In the final order passed in the Settlement Department by the learned Settlement Commissioner, the first agreement entered into by Allah Ditta with Nathu has been accepted and ordered to be given effect to. Aggrieved by this decision, Eidu filed a writ petition, referred to at the outset, but the learned Single Judge has maintained the order of the learned Settlement Commissioner.
In support of this petition, Mr. Mohammad Rafique Chauhan has, submitted two-fold argument ; firstly, that the agreement of Allah Ditta with Nathu was not acted upon and could, therefore, be superseded by another agreement . But we think that the Settlement Authorities were rightly holding that in the presence of the first agreement, the second agreement was not valid and, therefore, ordered its cancellation. This view being proper, just and fair was rightly upheld by the High Court.
It was next argued that both the agreements could be given effect and half portion could be transferred to Nathu and other half to Eidu but we observe that this contention has never been raised in the earlier rounds of litigation and, therefore, cannot be allowed to raise in these proceedings for the first time.
This petition is dismissed.
Petition dismissed.
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