M. S. H. QURAISHI, J.--These petitions are directed against the dismissal, by the Lahore High Court, of the petitioner's Civil Revisions No.167 of 1976 and No.42 of 1977.
2. The facts briefly stated are that Mst. Shah Jehan Begum (predecessor-in-interest of the respondents) being a sister, and Mst. Imtiaz Begum, the widow of Shamshad Ali Khan, the deceased right--holder, were to inherit each 1/4th of the estate of the deceased. At first 94 Kanals were allotted on 16-9-1960 in Chak No.44/N.B. Sargodha, but the same was set aside on 14-11-1960.
The land was re-allotted to the to ladies on 9-10-1965 but on the appeal of the widow, specific Khasra numbers comprising 25 Kanals were allotted to Mst. Shah Jehan Begum on 5-9-1968.
Earlier, on 17-10-1961, she had executed an agreement to sell to petitioner Maulvi Abdul Aziz Khan the land allotted against her units for Rs.8,100 out of which, according to the recital in the agreement, she had received Rs.4,500 and the balance of Rs.3,600 was to be paid to her after the mutation of inheritance of the deceased had been sanctioned. On the same day she also executed a power-of---attorney in favour of Rao Rafiq Ahmad. On 23-11-1963 she revoked the power-of- attorney by a public notice and later by a registered Ibtalnama dated 30-3-1965. Nevertheless, the petitioner, on the strength of the agreement to sell and the power-of-attorney, got Mutation No.1107 sanctioned in his favour on 31-7-1964. Mst. Shah Jehan Begum, there--upon, instituted a suit for a declaration that the agreement to sell the units or the land allotted thereon made with Maulvi Abdul Aziz Khan, the power-of-attorney executed in favour of Rao Rafiq Ahmad and the mutation of sale sanctioned on 31-7-1964 were illegal and based on fraud. The suit was decreed on 8-4-1972 which decree was maintained in appeal on 4-8-1976 and the petitioner's revision was dismissed on 1-6-1981. This has given rise to Civil Petition No.883 of 1981.
3. Maulvi Abdul Aziz Khan had also brought a suit for specific performance of the agreement to sell but the same was dismissed in consequence of the finding already recorded in Mst. Shah Jehan Begum's suit that the agreement was of -no legal effect. His appeal and revision failed. This has given rise to Civil Petition No.884 of 1981.
4. The view that prevailed with the first to Courts was that the agreement of 17-10-1961 was defective for the reason that the same had been concluded at a the when there eras no allotment subsisting in the name of Mst. Shah Jehan Begum; that the transaction was only of units meant to apply to an area of land which may come to her share; that it was in violation of para.14, Part 11, of the Rehabilitation Settlement Scheme, that in 1964 when the mutation of sale was entered in favour of the petitioner, there was no allotment subsisting in the name of Mst. Shah Jehan Begum and that the power-of-attorney in favour of Rao Rafiq Ahmad having been revoked by publication in 1963, the latter had no authority in 1964 to enter into the transaction on behalf of the lady and as such the mutation was not lawful. The payment of the consideration was also, in the view of the first to Courts, not satisfactorily explained. It was noticed, in this connection, that while the agreement recorded that Rs.4,500 had been paid, the mutation of sale incorporated a payment of Rs.2,760 only and that the payment of Rs.3,600, which according to the agreement was the balance price to be paid within four months of the execution of the agreement, had not been sufficiently established. After examining the case the High Court did not find any justification to disturb the concurrent findings of the Courts below within the scope of its revisional jurisdiction.
5. After hearing learned counsel, we are not inclined to interfere. The payment of money as stipulated in the agreement was not found to have been established. It was one of the conditions of the agreement that if the balance amount of Rs.3,600 had not been paid, the agreement would stand cancelled and the amount already paid forfeited. The appellate Court found that the payment of this amount of Rs.3,600 within four months had not been established. The appellate Court thus not only doubted the subsistence of the agreement but finding that the agreement was simply for sale of units which were not property but only entitlement and not saleable, held that the agreement was void ab initio. Learned counsel for the petitioner pressed before us the rule of "feeding the estoppel", urging that Mst. Shah Jahan Begum was estopped from pleading want of title on the date of execution of the agreement as she subsequently acquired the property. The rule, in order that ii be applied would raise a number of questions of fact such as whether the transferor had misled by misrepresentation in regard to the defect in her title. The rule not having been pressed before the Courts below and no issue having been struck in that regard, it is to late a stag to invoke it.
Both the petitions are, therefore, dismissed.