1992 PLP 2111 (MLD)

Liaqat Hussain Mughal for Respondents. Date of hearing: 21st May, 1992. Through this appeal, the appellants have challenged the validity of the judgment and decree of the learned District Judge Koth dated 31‑7‑1991, whereby the appeal of the appellants was dismissed by the learned District Judge Kotli.

2. The facts forming the background of this appeal are, that the respondents Nos. 2 to 5 alienated the land measuring 35 Kanals and 17 Marlas to respondent No.l. The appellants‑plaintiffs pre‑empted the sale‑deed through the suit filed on 2‑12‑1989. The defendants contested the suit and raised a preliminary objection that the suit of the appellants is time‑barred and the learned Sub‑Judge framed the various issues and issue No.4 was pertaining to the limitation. The learned Sub‑Judge heard the arguments on this issue and dismissed the suit of the appellant being a time‑barred one. Feeling aggrieved from this judgment and decree of the learned Sub‑Judge, the appellants filed an appeal before the learned District Judge Koth which too met the same‑fate and was dismissed by the learned District Judge. Now the instant appeal has been filed against this judgment and decree of the learned District Judge, Kotli.

3. The learned Counsel for the appellants argued that as the land in dispute was already under the possession of defendants, so it did not come in their notice, that the land in dispute has been alienated by the defendants Nos. 2 to 5 in favour of defendant No.l. He further contended that the defendants‑respondents kept all the proceedings of the sale secret from the plaintiffs for depriving them from invoking their right of the prior purchase. The defendants kept the sale‑deed concealed from the plaintiffs for preventing them from pre‑empting the sale. When the plaintiffs came to know about the sale, they immediately‑ filed the suit so the limitation will run from the date of the knowledge of the plaintiffs as prescribed in section 18 of the Limitation Act. It was next contended by the learned counsel for the appellants that even otherwise, Article 10 was not applicable to the instant case, because in the instant case the land in dispute was already under the possession of defendant respondent No.4 and the mutation to the fact was attested on 16‑10‑1989, thus according to section 29 of the Right of Prior Purchase Act the limitation will run from the date of mutation and not from the date of sale‑deed, so both the lower Courts have wrongly dismissed the suit of the appellants‑plaintiffs on the points of limitation. He referred the following rulings in support of his contentions:‑ (1) PLD 1964 Pesh. 224. (2) PLD 1980 SC (AJK) 41.

4. On the other hand, the learned counsel for the respondents argued that the judgment and decree of the lower Courts is based on sound and cogent reasoning and there is no question of the application of section 29 of the Right of Prior Purchase Act because in the instant case, the sale‑deed was registered and the limitation will run from the date of the registration. He further submitted that no fraud has been committed by the defendants neither they concealed the sale‑decd, but the sale‑deed was registered one, hence there was no question of concealing of the sale‑deed. The suit of the plaintiffs‑appellants was hopelessely time barred, thus both of the lower Courts have rightly dismissed the suit of the appellants‑plaintiffs.

5. I have heard the learned counsel for the parties and perused the record of the case.

6. The perusal of the record shows that the sale‑deed was executed on 5‑7‑1987 and the suit was brought by the plaintiffs after the span of 2 years and 3 months on 2‑12‑1989, thus the suit of the appellants was time‑barred suit.

7. As this contention of the learned counsel for the appellants is concerned, that the sale‑decd was concealed by the defendants‑respondents from the appellants‑plaintiffs for preventing them from invoking their right of Prior Purchase carries no substance. As this point is concerned, this ,point was not agitated by the learned counsel for the appellants in both of the lower Courts. A point which has not been pressed before the lower Courts cannot bet agitated during the arguments in the appeal.

8. Even otherwise, the sale‑deed has never been concealed by the respondents‑defendants because the sale‑decd was registered by the Sub- Registrar. Any document which contains certificate of registration from Sub‑ B Registrar cannot be said to have been concealed by a party, because the registration is a notice to the General Public‑at‑large. The copy of any registered document can be obtained from the office of the Sub‑Registrar.

9. Section 18 of the Limitation Act provides that where any person having a right to institute a suit has been kept, ignorant from the knowledge of such right through some concealment by way of fraud, then the limitation will run from the date when this fraud firstly came to the knowledge. of such person. Now the question arises that whether in the instant case, defendants practised any fraud and by way of that fraud he kept the appellants‑plaintiffs ignorant from the execution of the sale or the sale was concealed by the defendants from the appellants by way of a fraud, nothing like such has been pleaded by the plaintiffs against the defendants. Any open act of a party cannot be said to be a fraudulent act of concealment and is not covered by section 18 of the Limitation Act. There must be something done or said, which is directly intended to keep the appellants plaintiffs aloof from the knowledge of their right to sue or apply. Mere inaction or negligence of a party to take certain steps which may bring the transaction to the knowledge of the party or mere ignorance of the plaintiff that certain cause of action has accrued to him would not constitute a fraud committed by the other party. In the instant case, the sale‑deed was registered as stated above and copy of sale‑deed was available in the office of the Sub‑Registrar because the sale‑deed was a public document and if the appellants‑plaintiffs despite of this remained ignorant from the execution of sale‑deed, then it can be the negligence of the plaintiffs but it cannot be said that the defendants by way of fraud kept concealed the knowledge of the sale‑deed from the plaintiffs. As stated above, that the sale deed was registered one and the registration is a notice to the General public and the copy of the sale‑deed was available in a Public Office then it was an open act of the defendants and no one can call it the concealment by way of fraud from the plaintiffs, thus the plaintiffs cannot be allowed to avail the benefit of section 18 of the Limitation Act for their negligence. As the case referred by the learned counsel for the appellants PLD 1964 Pesh. 224 is concerned, that is distinguishable and has no bearing on the facts of the present case. In that case the suit house belonged to one Ganga Bishan who mortgaged it in favour of Abdul Waheed respondent in lieu of Rs.1,700 for a period of 12 years and the mortgage deed was executed on 26‑3‑1947 and was registered on 18‑4‑1948 and the respondent was put in possession of the suit house and on 24‑5‑1939 Ganga Bishan sold the equity of redemption in favour of Abdul Waheed for Rs.99 by means of an unregistered sale‑deed and in that case, it was agitated that there was a fraudulent concealment of this sale in favour of the respondent. In that case, the sale‑deed was not registered one, thus the house was secretly sold and prior to the sale, the mortgage was created for the purpose of concealing the sale whereas, in the instant case, the sale‑deed is registered one and the copy of the sale‑deed was available in a public office and nothing has been concealed in the present case, so this case is distinguishable and has no bearing on the facts of the present case.

10. As the second contention of the learned counsel for the appellants is concerned, that Article 10 will not apply but section 29 of the Limitation will apply carries no substance for the following reasons. In the instant case, the sale‑deed was registered one and wherever, the sale‑deed is registered then Article 10 will come into play. It has been clearly provided in Article 10 that where the subject of the sale‑deed does not admit of physical possession, the limitation will run from the date of the registration of the instrument of sale.

11. As the learned counsel for the appellants contended that the p possession was already with the vendee thus it stands admitted that the sale-deed does not admit of physical possession, so it is quite clear that the second portion of the Article 10 will apply and the limitation will start from the date of~ the registration.

12. Article 10 of the Limitation Act postulates, that where the property which is subject of sale‑deed, does not admit of physical possession or where on the date of sale, the property was already under the possession of tenant then naturally subject‑matter of the sale will not admit of physical possession, then one has to see, that whether the deed of the sale has been registered or not: If the sale‑deed is registered then the limitation will be counted from the date of registration and the suit should be within a year from the date of the registration. This view finds support from PLD 1963 AJK 79 and 1981 CLC

293. It has been held in the aforesaid reports that where the sale of land has been made by a registered sale‑deed and followed by a mutation, period of limitation will be counted from the date of registration and not from the date of sanction of mutation. It has been provided in section 29 of the Right of Prior Purchase Act that it will only apply when Article 10 will not be applicable, wherever, the sale-deed will be registered one then the Article 10 will apply and where the sale-deed will not be a registered one and the sale has been made by some other E way than the registered sale‑deed then section 29 will apply. In the instant case, as stated above the sale‑deed was registered one thus there is no question o application of section 29 of the Right of Prior Purchase Act. The ruling referred by the learned counsel for the appellants PLD 1980 SC (AJ&K) 41, is also distinguishable because in that case too the sale was not made through a registered instrument thus that case has no bearing on the fact of the present case. The nutshell of the above discussion is that finding no force m this appeal, it is hereby dismissed with costs. AA./514/H.C.A Appeal dismissed.