' This second appeal is directed against Judgment and Decree of the Senior Civil Judge, Karachi, dated 21-3-1974 who dismissed the suit of the plaintiff for declaration and the judgment and decree of District Judge, Karachi, dated 20-3-1970 who dismissed the appeal of the appellant.
2. The facts in brief are that one Mushiruddin Ahmed who was father-in-law of the appellant had entered into an agreement of association with Dr.Lutfur Rehman Khan for payment of the price of a shop, to be transferred by the Settlement Authorities in favour of Mushiruddin, by adjustment from the compensation book of Dr.Lutfur Reiman to the extent of RS,3,370. Dr. Lutfur Rehman had to his credit in his compensation book about RS,16,000 as deferred amount. This agreement was executed on 23-4-1960. Simultaneously on the same date an agreement of sale was executed between the appellant Mst. Barkat-un-Nisa and Dr.Lutfur Rehman on the basis of the agreement of association between Mushiruddin and Dr.Lutfur Reiman above referred. By the second agreement the appellant agreed that she was to transfer her house No,D-5/3 in P.I.B. Colony covering an area of 200 sq. Yds. To Dr. Lutfur Rehman in consideration of the adjustment of deferred amount from the said compensation book of Dr.Lutfur Rehman. It was further agreed that if the claim of Dr.Lutfur Rehman which was agreed to be utilised by Mushiruddin is declared to be in operated or is not utilized for any other reason the said transfer of house by the first party to the second party shall ipso facto become null and void and Mst. Barkatun-Nisa shall always be deemed to be the owner in occupation of the house.
3. The agreement of association was initiated by the Deputy Settlement Commissioner on 17-3- 1960. And on 10-8-1960, adjustment was made from the compensation book of Dr.Lutfur Rehman to the credit of Mushiruddin.
4. Dr. Lutfur Rehman got the said house in P.I.B. Colony transferred in his favour on 30th March, 1963, but before that some dispute had arisen between the parties and Mst. Barkat-un-Nisa had informed P.I.B. Society that she is not bound to transfer the house to Dr.Lutfur Rehman. On 31-6-1966 Mushiruddin secured another agreement of association for the payment of the price of the shop and he got a P.T.D. Issued in respect of the said shop in his favour which showed that the price had been adjusted as a result of the second agreement of association. But the same was cancelled on the application of Dr.Lutfur Rehman and on 2-7-1970 the Additional Settlement Commissioner held that the agreement of association between Mushiruddin and Dr. Lutfur Rehman had already been acted upon and payment of price of house of Mushiruddin was adjusted from the compensation book of Lutfur Rehman and, therefore, second agreement was merely superfluous and the same was allowed to be withdrawn by Mushiruddin. This order was maintained by the Settlement Commissioner and the Chief Settlement Commissioner.
5. Since Mushiruddin had died in 1966 his place was taken by Dr. Salimuddin who is the husband of the present appellant. Mr.Salimuddin filed a Writ Petition No,601/71 in the High Court challenging the final order of the Chief Settlement Commissioner and others but the petition was dismissed on 9- 8-1971 and I have been informed by the learned counsel for the two sides that even a L.P.A. No,191/71 against the order of the said petition has been dismissed by a division bench of this Court on 5-5- 1980.
6. The plaintiff filed a suit in 1968 claiming that the said agreement was never executed and in the alternative the same to be adjudged as void. The basis of the claim of the plaintiff was that the Settlement Authorities had raised objections in respect of the compensation book of Lutfur Rehman and, therefore, another agreement of association with one Muhammad had been filed on the basis of which P.T.D. Had been issued in favour of Mushiruddin. In para. 5 of the agreement the appellant had admitted to have executed this said agreement of 25-4-1960. The L. RS,. Of Lutfur Rehman resisted the suit and stated that the amount from the C.B. Of Lutfur Rehman had already been utilised in favour of Mushiruddin and Dr.Salimuddin had already become the tenant of Lutfur Rehman in respect of the said house. Issues were framed and the parties led their evidence before the Court.
7. Both the Courts have given concurrent findings to the effect that the compensation book of Lutfur Rehman was utilised towards the payment of the price of the shop of Mushiruddin and, therefore, the agreement of 25-4-1960 had been acted upon and that Settlement Authorities had finally accepted that this was the position and the same position had become finalised in the writ petition and the L.P.A. Even at the High Court stage.
8. I am bound by the concurrent findings of the two Courts below and I cannot interfere in these findings. Mr.Jafri has not been able to A show me as to how those findings are incorrect. He submitted that a poor widow, namely, the appellant sacrificed for her husband and father-in-law.
That may be correct or incorrect I do not know. But I do not find any allegation in the plaint to the effect that the appellant was fraudulently dealt with by her father or her father-in-law, therefore, this submission does not appear to be borne out from the record.
9. The appellant's counsel then submitted that the agreement of 25-4-1960 was not an agreement of sale but it was a security executed by the appellant in favour of Lutfur Rehman in respect of the agreement of association entered into by Mushiruddin and Lutfur Rehman. I do not see any strength in this argument and I find from the perusal of the agreement that it was an agreement of sale of the disputed house made by the appellant and the consideration of sale of the house was the utilization of the compensation book of Lutfur Rehman by Mushiruddin, the father-in-law of the appellant. The agreement was quite valid agreement of sale and it was for consideration. There was nothing like this agreement being a security agreement.
10. In any case the appellants had no right to file a suit for having the said agreement declared as inoperative and null and void as the same had been acted upon on 10-8-1960 by adjustment of the amount from the compensation book and, therefore, it could not have been cancelled. There was no fraud played by Lutfur Rehman and in fact it was the appellant's side which had been guilty of misconduct and not the respondent.
11. I may also observe that it was simply inconsistent on the part of the appellant to say in para. 5 of the plaint that she had executed the agreement and then to claim in the prayer clause of the plaint that the same may be declared not to have been executed by her. This was blowing hot and cold in the same breath.
12. There is no force in this appeal and the same is dismissed with costs.