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Regular Second Appeals Nos.143 and 144 of 1984, decided on 10th February, 1985.

---S.100--Second appeal--Mixed question of fact and law--Question of limitation admittedly not raised either in written statement by defendant or in any of two Courts below--Question of limitation being mixed question of fact and law, held, could not be agitated for first time in second appeal.

---S.19--Agreement to sell land--Suits for recovery of amount paid as sale consideration--Objection to--Plaintiff had filed suit to recover amount which he had paid towards sale consideration of land and not to enforce agreement to sell--Plea of defendant that such amount could not be claimed through process of law as agreement to sell were void under S.19 of Colonization of Government Lands (Punjab) Act, 1912, held, without force, such suit being not barred by any law.

Muhammad Ahmad Beg v. Ahmad Beg P L D 1978 Lah. 421 rel.

---S. 19--Civil Procedure Code (V of 1908), 5.100--Execution of agreement--Concurrent findings of Courts below--Evidence produced by plaintiff in respect of execution of agreement and receipt of amount by defendant believed by both Courts below--Held, concurrent findings of fact could not be interfered with in second appeal particularly when no misreading and non-reading of evidence had been pointed out.

Ahmad Saeed Khan for Petitioner.

Date of hearing: 10th February, 1985.

This order will dispose of two second appeals (RSA-143/84 and RSA-144/84) as in both these appeals questions of law and fact involved are one and the same.

2. The relevant facts, briefly stated, are. that two suits for the recovery of Rs.20,000 each were filed against the appellant as the agreements to sell the land fell through because of non-submission of applications under section 19 of Colonization of Government Lands Act, for seeking permission to transfer the land.. The suits were resisted by the appellant by denying the execution of the said agreements and receipt of the consideration. The learned trial Court tried both the suits separately and ultimately decreed both the suits vide judgment dated 21st March, 1983. The appeals of the appellant also failed vide judgments and decree dated 21st April, 1984 of the learned Additional District Judge-II, Sahiwal.

3. Learned counsel in support of these appeals argued that neither execution of the two agreements was established on record nor the receipt of 20,000 in each case was proved. It was further argued that as the agreement to sell was void because of the bar created by section 19 of the Colonization of the Government Lands Act, the amount even if paid under the said agreement cannot be claimed or recovered. Lastly, it was argued that the suit was barred by time and merited to be dismissed on this short ground.

4. Learned counsel has also taken me through the evidence produced by the parties. I have gone through the judgment passed by both the Courts below. Having considered the submissions of the learned counsel, I am of the view that the same are without any merit. The question of limitation was not, admittedly, raised either in the written statement or in any of the two Courts below. The question of limitation in the circumstances of the case being a mixed question of fact and law, cannot be agitated for the first time in second appeal. The plea that the amount cannot be claimed through process of law because the agreements to sell were void under section 19 of Colonization of Government Lands Act is also without merit. Nothing of the sort has been held in Muhammad Ahmad Beg v. Ahmad Beg P L D 1978 Lah. 421. The plaintiff was not seeking enforcement of the said agreements to sell. In view of the bar created by section 19 of Colonization of Government Lands Act, plaintiff filed the suit for recovery of the amount which he had paid towards the sale consideration. Such a suit is not barred by any law. As regards execution and the receipt of Rs.20,000 under each of the agreements, it is to be noted that the evidence produc 1 by the plaintiff was believed by both the Courts below. The concurrent finding of fact cannot be interfered with in second appeal particularly when neither any misreading nor non-reading of any material piece of evidence has been pointed out. The appeals, therefore, fail and are dismissed in limine.

H.B.T. Appeal dismissed.