P L D 1962 Dacca 540 (PLP)

This appeal by defendant No. 1 arises out of a suit filed by the plaintiff for pre‑emption. The fact giving rise to the present litigation may be shortly stated as follows: One Azimuddin died leaving one son Taijuddin by his deceased first wife. He also left behind a widow Khatija and six daughters by her, namely, Madhu Bibi, Tasarannessa, Saidannessa, Asarennessa, Nessa and Surjaban. Khatija brought a partition suit against Taijuddin being T. S. No. 164 of 1917 in the Court of Sub ordinate Judge, 2nd Court Comilla. The suit was disposed of on compromise in which one of the provisions was that Khatija would get half of the homestead and Taijuddin would get the other half. It was however agreed that if Khatija wanted to sell her half of the homestead, she would sell it to Taijuddin or his heirs at reasonable market price. The daughters were allotted nal lands. It is said that Khatija without informing the plaintiff, secretly sold her share of the homestead to the present appellant Tasarunnessa one of her daughters. Tasarunnessa after the death of the mother in 1948 wanted to remove the but to which the other daughters of Khatija objected and it was then that the sale in her favour was disclosed by her. The plaintiffs thereafter filed the present suit.

2. The defence of defendant No. 1 is that she was not aware of anything of title Suit No. 164 of 1917 and the solenama entered into between Taijuddin and Khatija. It is claimed that she is not bound by the terms of the solenama: 'The further case in the written statement is that this defendant used to live with her mother in the homestead along with her husband who was kept there as ghar jawai and, therefore, she ‑had a right to purchase the disputed but from her mother. The plea of limitation was also taken in the defence.

3. The suit was decreed by the trial Court and the decree was affirmed by the lower Appellate Court on an appeal being preferred by the present appellant. Against the decree a decree appeal was preferred to this Court and this was heard by Mr. Justice Nandi. The learned Judge affirmed all the findings of the Courts below but remanded the case to the lower Appellate Court for coming to a finding with regard to limi tation. In this connection it was remarked that the proper Article to apply in this case was Article 10 of the Limitation Act and as it was admitted that the disputed property was capable of physical possession, the Court of appeal below would come to a finding as to the date when defendant No. 1 took physical possession of the disputed property and after that disposed of the appeal after having arrived at a finding on this point. After remand the lower Appellate Court has decided against the defen dant and hence the present appeal.

4. The learned Advocate for the appellant contends that on the findings arrived at by the lower Appellate Court, it should have been held that the suit was barred by limitation under Article 10 of the Limitation Act. For proper appreciation of the argument of the learned Advocate it is necessary to quote Article 10 of the Limitation Act. "To enforce a right of pre‑emption, whether the right is founded on law or general usage or on special contract‑‑one year.‑When the purchaser takes under 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." It is contended by the learned Advocate for the appellant that as it has been found that the present appellant was in physical possession of the disputed property from before the date of transfer in 1944 and continued in such possession, the suit filed in 1948 was barred by limitation particularly in view of the fact that even after the death of Khatija in 1946, the plaintiff did not take any steps to pre‑empt the disputed property. The learned Advocate's argument is that in this case the fact that the sale did not come to the knowledge of the plaintiff, is not material, as section 18 of the Limitation Act, cannot be called in aid by the plaintiffs. In order that the provisions of section 18 of the Limitation Act can be invoked, it must be shown that the present defendant‑appellant had a duty to bring the sale in her favour to the knowledge of the plaintiff or that the sale being kept out of the knowledge of the plaintiff he could not enforce his right under the compromise. Alternatively it is argued that even if it is held that section 18 of the Limitation Act is applicable, the fact that the transfer took place by a registered deed, will fix the plaintiff with knowledge of the transfer from the date of the registration and in this connection reliance is placed on the decision of the Judicial Committee in the case of Venkatesware Iyan and another v. Shekhari Varma (I L R 3 Mad. 384 (P C)). The learned Subordinate Judge in disposing of the appeal has taken the view that since the present appellant was in possession of the disputed but from before the date of the transfer in her favour, the possession that continued even after the transfer did not bring about any change of possession by virtue of the execution of the kabala by Khatija in favour of defendant No.

1. He has further found that in such circumstances the starting point of limitation will be the date when the defendants asserted her right of possessions by virtue of the transfer and that being only on 14‑1‑48, when she attempted to remove the put, the suit was within time. Article 10 of the Limitation Act provides that the period of one year will begin from the date when the purchaser takes, under the sale sought to be impeached physical possession of the whole of the property sold. It, therefore, cannot be said that when a transferee is in possession from before the date of sale and continues in possession, his possession from the date of sale, is possession which is taken under the sale sought to be impeached. `' In that view of the matter I am inclined to agree with the learned Subordinate Judge that since there was no overt act on the part of the purchaser to assert her possession in pursuance of the transfer she could not take advantage of her possession which was continuing from before until such an overt act was made.

5. It may also be noted that the learned Subordinate Judge in coming to his finding that the suit is not barred by limitation has taken another fact into consideration. He has found that on the disputed property not only defendant No. 1, but her sister Madhu Bibi lived with their mother and Madhu Bibi continued in possession until her death in October 1947. In such circumstances the learned Subordinate Judge thinks that it cannot be said that the defendant obtained physical possession o e the whole of the property until Madhu Bibi died and if the date of the death of Madhu Bibi is considered to be the starting point of limitation then the suit was within time. In this respect also I agree with the learned Subordinate Judge. So far as the finding that Madhu Bibi was in possession of this but along with the present defendant until October 1947, this has been found on evidence and, therefore, cannot be and has not been challenged by the learned Advocate for the appellant. The suit, therefore, is not barred by limitation and as this is the only point that has been urged to this appeal, the appeal fails and is dismissed with costs. Leave under Clause 15 of the Letters Patent prayed for is granted. S. B./A. H. Appeal dismissed.