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Civil Petition No. 59‑R of 1983, decided on 4th July, 1983.

(On appeal from the judgment dated 16th January, 1983 of the Lahore High Court in Civil Revision No: 164 of 1982),

‑‑‑ Art. 185 (3) ‑ Leave to appeal ‑ Petitioner after having led respondents to believe that they would get shop on payment of its c9n sideration and in pursuance of agreement having put them in possession, held, petitioner cannot be allowed to resile from this position after having gobbled up consideration merely on basis of legalistic and technical pleas‑Leave to appeal refused.

Ch. Khalil‑ur‑Rehman. Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioners.

A. R. Shaukat, Advocate Supreme Court and Tanvir Ahmad, Advocate- on‑Record for Respondents.

Date of hearing : 4th July, 1.983.

A shop in Rawalpindi bearing No. C‑495 and situate in Bazar Talwaran was an evacuee shop. It was transferred in favour of Muhammad Aleem Khan, petitioner No. 2 by the Settlement Department. He is the son of Muhammad Ali Khan, petitioner No. 1 herein. The petitioner No. 1 allegedly executed an agreement with the respondent on 2‑9‑1961 for the sale of this shop in their favour after the transfer of the shop by the Settlement Department to them. A sum of Rs. 9,760, was received as consideration and in part performance of this agreement, the respondents were put into possession thereof.

The petitioners, however, after the transfer of the shop by the Settlement Department and the issuance of the P. T. D. in favour of petitioner No. 2, instead of implementing the said agreement, sought to eject the respondents from the shop. This constrained them to file a suit for declaration and injunction in which it was asserted that in pursuance of the agreement dated 2‑9‑1961 and they having been put in possession of the shop in part performance‑thereof, could not be dispossessed and, in fact, were owners of the shop. This suit was decreed. The appeal against it preferred by the petitioners was dismissed by the Additional District Judge and their revision before the High Court also having failed hence this petition for leave to appeal.

Ch. Khalil‑ur‑Rehman, learned counsel for the petitioners, has mainly contended that the shop in dispute having been transferred in favour of petitioner No. 2 any agreement made by petitioner No. 1 for its sale was not binding on the petitioner No. 2 and the plea that the petitioner No. 2 was only benamidar for petitioner No. 1 could not be sustained, especially in the face of the statutory provisions of the relevant evacuee laws.

There is some force in these submissions on the legal plane but was consider that the petitioners after having led the respondents to believe that they would get the shop on payment of its consideration and in pursuance of this arrangement having put them in possession of it, cannot be allowed to resile from this position after having gobbled up the consideration, merely on the basis of highly legalistic and technical pleas.

This is, therefore, not a fit case for grant of leave to appeal which is, accordingly, dismissed hereby.

Petition, dismissed,

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