' M.S.H. QURAISHI, J.-- The petitioners seek leave to appeal from the order of the High Court, dated 29-10-1976, whereby the High Court accepting the respondent& Regular First Appeal set aside the judgment and decree of the trial Court and decreed their suit.
2. The suit had been filed by the respondents/plaintiffs for specific performance of an agreement to sell land measuring 286 Kanals 11 Marlas, or if the specific performance could not be decreed, for the refund of the consideration amount of Rs, 40,000. The agreement had been entered into between the plaintiffs and Syed Masood Samie the deceased predecessor-in-interest of the petitioners and on the basis of that transaction Mutation No, 1064 had been entered on 28-2-1966.
By another transaction, the said Syed Masood Samie had alienated the rest of his land, measuring 317 Kanals 3 Marlas in favour of his sons, evidenced by Mutation No, 1033. A suit to pre-empt the transaction was filed by petitioner No. 1 but in the meantime both the mutations were cancelled by the Land Commission authorities upon the view that the same were violative of the provisions of M.L.R.
64. In view of this situation, the pre-emption suit was dismissed. In the present suit, a number of points were raised including that the transaction was void by virtue of M.L.R. 64 and that if the economic holding of 400 Kanals was to be kept back, then an area of 199 Kanals 14 Marlas only would be left. It is to be noted that the plaintiffs even applied to the trial Court that if the whole contract could not be enforced, then the excess land, that is, 199 Kanals 14 Marlas, be transferred to them in part performance of the contract. The trial Court relied on the cancellation of the mutation by the Land Commission and held that even part performance of the contract could not be decreed because of the difficulty of evaluating the land. The trial Court, therefore, found the plaintiff-respondents entitled only to the refund of the consideration amount of Rs, 40,000 and decreed the suit accordingly.
3. In the appeal, the High Court took the view that as the entire holding of Syed Masood Samie had been disposed of, the transaction could not be held to be violative of M.L.R. 64; that the transaction though not by a registered Dasti was not for that reason void inasmuch as the document being an agreement to sell, in itself was only an acknowledgment and as such exempt from registration and that there was nothing in the pleading of the respondents in the pre-emption suit whereby they could be held to the estopped from claiming on the transaction in question. On this view of the matter, the learned Judge of the High Court decreed the suit for specific performance of the agreement for the entire disputed land measuring 286 Kanals 11 Marlas.
4. Mr. M.M. Bhatti, learned counsel for the petitioner, has urged that the respondents, in view of their stand in the pre-emption suit brought by Syed Iqbal Samie that the transaction was hit by M.L.R. 64, could not be permitted to approbate and reprobate and that as such they were estopped from asserting the validity of the transaction. The learned Judge of the High Court has dealt with this point at some length and after examining the pleadings of the respondents in the pre-emption suit has held that "the appellants have nowhere taken any inconsistent plea, rather they have always been agitating that the transaction in their favour was not hit by Martial Law Regulation No, 64". As regards the objection to the validity of the transaction, based on the provision of para. 25(1) of M.L.R. 64, learned counsel has A submitted that the entry of mutation in respect of the transaction with the respondents had been made on 28-2-1966, whereas the other transaction in favour of the sons of Syed Masood Samie had been made the next day, that is, 29-2-1966 and that as such these two being distinct transaction the one in question was clearly hit by the said provision of M.L.R.
64. We find that both the High Court and the trial Court have held that the two transactions were made the same day. Even if the other transaction was made a day later, that would not be significant, the intention of the alienor being clear that he wanted to divest himself of his entire holding simultaneously.
5. We are satisfied that the view taken by the High Court is in accord with the law and facts and as such no ground is made out for grant of leave. The petition is dismissed.