2006 PLP 690 (CLC)

SARDAR MUHAMMAD NAWAZ KHAN, J.--This appeal arises out of the following facts. Fazal Ellahi respondent No.2 executed a sale-deed in favour of Muhammad Sharif respondent No.1 on 7-4-2004. The document was registered on the same date. Sallah Muhammad appellant impeached the said sale through a pre-emption suit on 12-8-2004. He while submitting his plaint contended that the sale-deed was secretly executed and he had no knowledge about registration of the sale-deed before 11-8-2004. He remained under treatment in the hospital from 4-8-2004 to 11-8-2004 and when his villagers visited him in the hospital it became known to him that Fazal Ellahi had executed sale-deed in favour of Muhammad Sharif. He, thus, claiming lack of knowledge requested the Court to condone the delay in filing the pre-emption suit. The defendants/respondents resisted the suit inter alia on the ground of limitation. The trial Court framed the relevant issues. The arguments on the point of limitation were heard and the suit was allowed to continue because per estimation of the trial Court, the issue of limitation required evidence. The defendants feeling aggrieved by the order of learned trial Court approached learned District Judge with a revision petition against the order, dated 8-3-2005 recorded by learned trial Court. The learned Judge allowed the revision petition, declared the suit by the plaintiff/appellant as time-barred consequently, dismissed it, hence this appeal against the dismissal order of the suit by the present appellant. I have heard the learned counsel for the parties and examined the record carefully. The limitation as provided under Article 10 of the Limitation Act for filing a pre-emption suit is 4 months. There are 2 eventualities provided under the said article. If the document is registered and the possession is handed over to the purchaser on a subsequent date, the limitation shall start from the date of physical possession otherwise it shall start from the date of registration. Any sale-deed when it is registered it becomes a public document because anybody out of public has the access to its certified copies. It, therefore, is an open act and no question of its concealment arises. The registration of sale-deed by itself is acknowledged to the general public. However, there is one exception in shape of section 18 of Limitation Act, which is conveniently reproduced as under:-- "

18. Effect of fraud.-- Where any person having a right to institute a suit or make an application has, by means of fraud, been kept away 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 limited for instituting a suitor making an application: (a) against the person guilty of fraud of the 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 in the case of the concealed document, when he first had the means of producing it or compelling its production." The case of the appellant when tested on the -touchstone of Article 10 and section 18 of Limitation Act, it becomes clear that his suit has rightly been declared as time-barred by the learned District Judge. The sale-deed in question has admittedly been registered on 7-4-2004 and the present suit has been filed on 12-8-2004. The suit, therefore, has been brought before trial Court with the delay of 4 days because the time a limit being 4 months expired on 7-8-2004. The averments in the plaint show that it is not the case of the plaintiff that the possession of the suit-land was subsequently handed over to the purchaser. On the other hand, the sale-deed by itself reveals that the possession was handed over to the vendee on the same date when the sale was registered i.e. on 7-4-2004, therefore, the limitation for pre-emption started on 7-4-2004 and ended up on 7-8-2004. Article 10 of Limitation Act does not provide any eventuality like the present one raised by the plaintiff through the present suit. It is not the case of the plaintiff/ appellant that the sale-deed was concealed by way of any fraud or he was kept away from knowledge of his right or the title on which it is founded. He is not found to have pleaded fraud. The vendor being full owner transferred the suit-land for consideration through a registered sale-deed therefore, the pre-emptor cannot be benefited under section 18 of Limitation Act. Coming to the application for condonation of delay on merit, it may be observed that the medical certificate relied upon by the plaintiff/ appellant shows that he neither remained under treatment as out-door patient. No date of issuance of this certificate has been disclosed. It is found to have been issued from a private clinic and it reveals that the appellant remained under treatment of the concerned doctor as out-door patient from 4-8-2007 to 11-8-2007 i.e. the time which is yet to come. However, assuming it to be a clerical mistake it shows that the appellant remained under treatment of the doctor as out-door patient from 4-8-2004 to 11-8-2004 meaning thereby that from 7-11-2004 (date of registration of the document) till filing of the suit he remained in the village. The question then arises as to how he remained ignorant of the fact of registration of the sale-deed especially when he claims to have knowledge in the hospital from the visitors from his village. This all shows a false story in order to cover up the limitation which under law could not be. The respondents while submitting their written statement appended a certificate from concerned authority that the appellant had the. knowledge of registration of sale-deed prior to the date he claims through the present suit. This certificate also lends support to the above observation of this Court. The learned counsel for the parties during their arguments relied upon different reports like 1998 CLC 711, 2000 MLD 1329, 2001 CLC 1149, 2004 MLD 943, PLD 1992 (A7&K) 62 and 1998 CLC

371. All the legal reports for and against lead to the conclusion that when a pre-emption suit is not covered by section 18 of Limitation Act, the limitation shall start from the date of registration or from the date of possession if it is subsequently handed over to the purchaser. The learned counsel for the appellant laid much emphasis on 1997 SCR 172 but unfortunately, this case-law also is not helpful to him because in the precedent case a disguised compromise decree was challenged through a pre-emption suit therefore, it was but natural to resolve the question of limitation through the evidence. In the light of what has been stated above, I found no force in this appeal which is hereby disallowed. H.B.T./4/AJK????????????????????????????????????????????????????????????????????????????????????? Appeal disallowed.