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1984 C L C 3511

 

[Karachi]

 

Before Ally Madad Shah, J.

 

ABDUL QADIR‑Appellant

 

versus

 

MUHAMMAD MAHFOOZ‑Respondent

 

Second Appeal No. 6 of 1982, decided on 15th March, 1984.

 

 

Abdul Rehman for Appellant.

 

Rehman Ali Naqvi for Respondent.

 

Date of hearing : 16th February, 1984.

 

JUDGMENT

 

This matter was filed as a second appeal under section 100, C.P.C. on l0th January, 1982. It was admitted, as such, on 15th March, 1982. At its hearing on 16th February, 1984, the learned counsel for the respondent pointed out, at the outset, that the first appeal in the matter was heard by an Additional District Judge Sukkur and second appeal does not lie against the decision in first appeal. However, he expressed his no objection if the appeal is heard and decided as Revision Applica tion. The learned Advocate for the applicant, has accordingly, made an application under section 151, C.P.C. for treating the memo. of appeal under section 100, C.P.C. as a Revision Application. It has, therefore, been treated as Revision Application and is being disposed of, as such.

 

2. The appellant/applicant, hereinafter mentioned as the `applicant, filed a pre‑emption suit (being suit No. 143/78), in the Court of Civil Judge, Second Class, Sukkur, on 3rd September, 1978, in respect of a residential premises bearing No. C‑6/14/4, Military Quarters, Sukkur on the basis of his owning the adjoining premises bearing No. C‑6/l4/1‑D and E. The pre‑empted premises belonged to one Muhammad Umar. The respondent Muhammad Mahfooz occupied the premises somewhere in the year 1914. It is alleged that the applicant was given to understand by Muhammad Umar as well as by the respondent Muhammad Mahfooz that the latter had occupied the premises as a tenant. It is further alleged that the respondent served a notice, dated 22nd August, 1978 on the appli cant’s nephew Habibur Rehman owning an adjoining premises bearing No. C‑6/14/ I ‑D indicating therein that he was’ the owner of the pre‑empt ed premises. Knowing this fact through Habibur Rehman, the applicant is said to have made declaration of the exercise of his right of pre emption The respondent did not acknowledge his right of pre‑emption. The applicant, therefore, filed the suit for conveyance of the suit property to him on the basis of the right of pre‑emption. ‑ The respondent resisted the suit on various grounds, one of which was that the suit was time barred. On the pleadings of the parties, eight issues were settled on l0th November, 1971. One of the issues viz. issue No. 5, related to the question of Limitation, and it was tried as a preliminary issue.

 

3. The parties did‑not adduce evidence but the preliminary issue on the question of limitation was sought to be decided on the basis of state ment, dated 4th December, 1979 made by the learned Advocate for the defendant, reproduced hereinbelow

 

“The factum of sale was fully known to the plaintiff before when the negotiation for purchase of the house were going on with pre vious owner and on 15th February, 1974 when the defendant purchased the property and came into possession of the same. Any law for purpose of arguments on the point of limitation the allegations made in para. 4 of the plaint and para. 3 of the notice, dated 28th August, 1978 given by the plaintiff to the defendant, may be presumed to be correct.”

 

4. Since reference was made to paragraph 4 of the plaint and para graph 3 of the notice, dated 28th July, 1978 given by the plaintiff to the defendant, it would be worthwhile to reproduce them also:

 

“Paragraph 4 of the plaint.‑That about four years ago the defendant came to occupy the disputed property which then belonged to one Muhammad Umar. On inquiry Muhammad Umar and the defen dant informed the plaintiff as well as others that the defendant had occupied this property as tenant of Muhammad who had started his business at Karachi and shifted his family there to Karachi.”

 

“Paragraph 3 of the notice, dated 28th August, 1978.‑That you had taken the property on rent and now for the first time it has been re vealed through your notice that you have purchased this property. By concealing this fact you had played fraud with me.”

 

5. The learned Civil Judge proceeded to decide the question of limi tation on the basis of the pleadings of the parties and the statement made by the learned Advocate for the defendant reproduced above. It was urged before him on behalf of the defendant/respondent that the suit property was purchased by a registered sale‑deed on 25th February, 1974 and the defendant/respondent had taken over its possession and suit for pre‑emption could be filed within one year from that date as provided under Article 10 in 1st Schedule to the Limitation Act. On the other band, it was con tended on behalf of the plaintiff/appellant that the fact of the purchase of house by the defendant/respondent was deliberately concealed from him and thereby fraud was practised upon him and the time of limitation was to run from the day the plaintiff/appellant happened to know the fact of the purchase of property by the defendant/respondent as provided under section 18 of the Limitation Act. The learned Civil Judge relying on a case reported in P L D 1961 Lah. 1042, held that no fraud was practised on the plaintiff/ appellant and that the suit was covered by Article 10 of the Ist Schedule of Limitation Act and it was time barred as it was filed much after the expiry of the period of one year prescribed therefore. The same view was adopted by the learned IIIrd Additional District Judge, Sukkur, in appeal which was dismissed on 16th August, 1981.

 

6. The facts which are not disputed are that the respondent pur chased the suit property under a sale‑deed executed on 15th February, 1974 and registered on 25th February, 1974. The suit for pre‑emption was filed on 3rd September, 1978 i.e. after more than four and half years. The period of limitation for enforcing a right of pre‑emption provided under Article 10 in first schedule of the Limitation Act, 1908, is one year from the day the purchaser takes, under the sale sought to be impeached, physical possession of the whole of the property sold, or, where the subject of the sale does not admit of physical possession, when the instrument of sale is registered. In the instant case, it has ‑not been dis puted that the respondent had taken physical possession of the suit pro perty somewhere in the year 1974. In that case ; the suit for enforcing the right of pre‑emption became time‑barred after expiry of one year from the day the respondent took over possession of the suit property. But appellant has alleged that the fact of the purchase of the suit property by defendant has been fraudulently concealed from him and he has pressed in aid the provisions of section 18 of the Limitation Act, 1908 which reads as under:

 

“Where any person having a right to institute a suit or make an application has, by means of fraud, been kept from the knowledge of such right or of the title on which it is founded,

 

Or where any document necessary to establish such right has been fraudulently concealed from him, the time limit for instituting a suit or making an application:-

 

(a) against the person guilty of the fraud or accessory thereto, or

 

(b) against any person claiming through him otherwise than in good faith and for a valuable consideration, shall be computed from the time when the fraud first became known to the person injuriously affected thereby, or, in the case of the concealed document, when he first had the means of producing it or compelling its production.”

 

7. According to the appellant, the defendant Muhammad Mahfooz and the original owner of the suit property Muhammad Umar had made him to believe that the former had entered into the property as a tenant and the fact of the sale of the property to the respondent‑ came to his knowledge first time after the respondent gave a notice, dated 22nd August, 1978 to his nephew, wherein he had styled himself as the owner of the suit property and he (the appellant) immediately filed the suit on 3rd September, 1978.

 

8. The learned counsel for the appellant has urged that the facts alleged by the appellant that the sale transaction in favour of the res pondent was fraudulently suppressed from him stood admitted by the statement, dated 4th December, 1979 reproduced above. It has, accord ingly, been argued that the appellant’s case is covered by section 18 of the Limitation Act, 1908, and the period of Limitation has to be computed from the day the appellant became aware of the sale of the suit property to the defendant as stated in paragraph 10 of the plaint, which mentions that the appellant had become aware of that fact on 28th August, 1979 and the suit filed on 3rd September, 1979 was well within time. He has cited a case of Mst. Muhammadi Begum v. Eason Ehsan do Company (A I R 1937 Lah. 96) as the supporting authority. On the other hand, the learned counsel for the respondent has contended that the appellant was well aware of the purchase of the suit property by the respondent, when the latter took over the possession thereof. He has further contended that even if it were construed that the appellant was told that respondent had entered into the property as a tenant it did not amount to the practising of fraud upon him as the respondent was not under any legal obligation to have dis closed to the appellant the fact of the purchase of the suit property. He has placed reliance on several authorities mentioned below

 

(1) K.S. Haji Ghulam Sarwar v. Moulvi Abdul Hameed P L D 1960 Pesh.32. ‘

 

(2) Jehana v. Sher Muhammad and others P L D 1961 Lah. 1042.

 

(3) Muhammad Ali v. Malik Sanwal P L D 1961 Pesh. 62 ;

 

(4) Abdul Waheed v. Mst. Zamrat P L D 1967 S C 153 ;

 

(5) Muhammad Shaja and others v. Sher Afzal P L D 1970 Pesh. 136;

 

(6) Jamal Khan v. Mubarak Bono P L D 1982 Pesh. 16, and

 

(7) R. G. Sehwani Co‑operative Housing Society Ltd. v. Haji Muhammad and others P L D 1983 Kar. 11

 

9. 1n the case of Mst. Muhammadi Begum v. Eshan Ehsan relied by the learned counsel for the appellant, it was held that when a land is sold and the transaction is fraudulently described as one confirming occupancy rights on the purchaser in order to defeat the right of pre emption and if, the person having the right of pre‑emption is not aware of the fraudulent nature of the transaction, the period of limitation for pre‑emption begins from the date on which the fraud comes to the know ledge of the pre‑emptor. In the instant case, the appellant has alleged that the purchase of the suit property by the defendant was concealed from him and he was told that the respondent had entered the property as a tenant. This fact is not disputed in view of the statement, dated 4th December,1979 made by the learned Advocate for the respondent. Of course, the respondent was not under any legal obligation to have voluntarily disclosed to the appellant the fact of purchase of the said property by him. But by having concealed that fact after he was en quired about his getting into it he was guilty of having practised fraud upon the appellant and the period of limitation was to run from the date the fact of the sale of the property to the respondent came to the know ledge of the appellant.

 

10. In the cases relied upon by the learned counsel for the respon dent, referred to above, there was no element of fraud. In the case K. S. Haji Ghulam Sarwar v. Maulvi Abdul Hameed and others (P L D 1960 Pesh. 32) it was observed that if the property being in possession of the vendee did not admit physical possession within the meaning of Article 10 of the Limi tation Act, the period of limitation started from the date on which the sale‑deed was registered. But there was nothing in the case like this case, that pre‑emptor had made inquiry from the pre‑emptee as to how he had got into possession of the suit property and the fact of the purchase of the property by the latter was concealed from the former.

 

11. In the case Jehana v. Sher Muhammad (P L D 1961 Lab. 1042) sale transaction of a property subject to right of pre‑emption was situated at District Shahpur and the sale‑deed was registered at Lahore and the fact of the sale tran saction was not notified to the pre‑emptor, it was held that the wilful omission to notify to the pre‑emptor the transaction of sale did not per se connote fraud as to attract the provisions of section 18 of the Limitation Act. The learned counsel for the respondent has firmly relied on this case. But it was a case of wilful omission of notifying to the pre emptor the factum of sale whereas in this case the fact of purchase of the property by the respondent was wilfully suppressed by the respondent from the appellant and that construed element of fraud. There is clear distinction between wilful omission of mentioning a fact and wilful suppression of a fact inasmuch as that the former may not have the A element of fraud but the latter does have the element of fraud. Thus, the case relied upon does not apply to the facts of this case.

 

12. In the case Muhammad Ali v. Malik Sawanal (P L D 1961 Pesh. 62), it was observed that the right of pre‑emption can be defeated by legitimate devices like exchange and gift. but that is not the case here as it was a case of out right sale but that fact was wilfully suppressed by the purchaser of the property.

 

13. 1n the case Abdul Waheed v. Mst. Zamrat (P L D 1967 S C 153), it was observed that no duty is cast upon the persons, who are party to intended pre -emptible transaction, to publish their intention to the pre‑remptor, and they may use whatever means and methods are allowed by law to carry out their intention. In that case the transfer of the property was first made by creating there encumbrance by way of mortgage and later it was disposed of by way of redemption of mortgage in favour of the mortgage. In the present case the device practised was that of wilful concealment of the transaction of sale.

 

14. In the case Muhammad Shuja and others v. Sher Afzal (P L D 1970 Pesh. 136), It was observed (hat the right of pre‑emption can be defeated by legitimate means. This case does not apply to the facts of this case as it is stated that the pre‑emptor had willfully suppressed the transaction of sale.

 

15. In the case Jamal Khan v. Mubarak Bano and others (P L D 1982 Pesh. 16), it was held that registered deed operates as notice in rem, The learned counsel for the respondent contended that the suit property was transferred by way of registered deed and that was sufficient notice to the appellant. The learned counsel for the appellant refuted this argument by pointing out that the suit property is identified under No. C‑6/14/4 whereas the sale‑deed described the property under No. C‑6/14‑land it did not cons titute notice in rem of the sale of the property which is subject‑matter of the suit. The learned counsel for the respondent did not dispute that the suit property is identifiable by No. C‑6/ 14/4. Obviously, the sale deed did not constitute notice of the sale of the suit property. More over, it has been discussed above that the appellant was given to under stand by the respondent that he had entered into possession of the house as a tenant. In the circumstances, the execution of the sale‑deed did not make the period of limitation for filing the suit to run from the day the sale‑deed was executed.

 

16. In the case K.G. Sehwani Co‑operative Housing Society Limited v. Haji Muhammad and others (PLD 1983 kar11) it was observed that a registered document is deemed to be a notice to all persons concerned. But this case does not advance the respondent’s case in agitating the plea of limitation for the reason stated in the aforesaid case of Jamal Khan v. Mubarak Bano.

 

17. As discussed above, the appellant had fallen victim to fraud practised upon him by wilful suppression of the fact of sale of the suit property and the suit filed by him was governed by section 18 of the Limitation Act.

 

18. The learned counsel for the respondent lastly argued that the matter has been heard under revisional jurisdiction and the Court has not to go into the factual merits of the case. He has made reference to a case reported in 1981 C L C 1326, wherein it was held that con clusion, reached by a civil Court may not be interfered with in revision even if another inference may be possible from the evidence on record. In the instant case, the question of law regarding the applicability of section 18 or Article 10 in Schedule 1 of the Limitation Act is involved. In the circumstances of ‑the’ case, such a question can be examined under the revisional jurisdiction of the Court.

 

19. It follows from the reasons recorded above that the learned lower Courts were at error in holding that the suit filed by the appellant was governed by Article 10 of Schedule I of the Limitation Act and section 18 of the said Act was not attracted. In the result, the appeal is allowed and the impugned judgment and decree is set aside. The case is, remanded to the trial Court to proceed therewith on other issues and decide it on merits. Since the matter involved question of law, the parties are left to bear their own costs.

 

 

M. B. A. Case remanded.

 

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