P L D 1964 (W (PLP)

Muhammad Afzal Khan for Sh. Allah Bakhsh for Petitioner. Kh. Muhammad Khan for Respondent. Dates of hearing: 11th, 12th and 13th May 1964. The sole question that falls for determination in this civil revision is whether the suit of the plaintiff for pre‑emption instituted on the 3rd of June 1955, was not barred by time. The learned counsel for the respondent raised two preliminary objections (1) that under section 34 of the North‑West Frontier Province Courts Regulation (I) of 1931, the revision was not competent and (2) in view of the concurrent finding on the question of fraud by the Courts below, the finding cannot be disturbed in revision. Taking up the first objection, I find that the scope of section 34, North‑West Frontier Province Courts Regulation (I) of 1931, was examined in Ziaul Haq v. Dr. A. Brabant and another (P L D 1962 Pesh. 21) and it was held that it is wider in scope as compared to section 115 of the Civil Procedure Code, 1908, inasmuch as clause (b) of subsection (1) of section 34 of the Regulation contains a further provision for interference in revision in cases where the Judicial Commissioner is of the opinion that there is an important question of law or custom involved in the case and that such question requires further consideration. I am in respectful agreement with the view expressed in the aforesaid ruling. I, therefore, hold that in view of the important question of law involved in the case, the present civil revision is competent. Turning to the second objection, I find that the lower Appellate Court did not give a clear finding on the question of fraud, and as such, it cannot be treated as a finding of fact closing the door for challenging it by way of revision under section 34 of the North‑West Frontier Province Courts Regulation, 1931. Clause (iv) of section 34 is relevant in this context. It runs: "(iv) when any such application has been admitted, the Court of the Judicial Commissioner shall, subject to proviso (M), treat the matter of the application as if it were an appeal."

2. I am, therefore, clear in my mind that Hussain Bakhsh Khan v. Hussain Bakhsh and another (P L D 1961 Pesh, 33) cited by the learned counsel for the respondent is not relevant. The preliminary objections are, therefore, overruled.

3. The facts of the case briefly stated are that the suit house belonged to one Ganga Bishan, who mortgaged it in favour of Abdul Wahid respondent in lieu of Rs. 1,700 for a period of twelve years. The mortgage deed (copy Exh. P. 2/A) was executed on the 26th of March 1939 and was registered on the 18th of April 1939. The respondent was put in possession of the suit house and on the 24th of May 1939 Ganga Bishan sold the equity of redemp tion in favour of Abdul Wahid for Rs. 99 by means of an unregistered sale deed (copy Exh. P. B.). It may be stated here that Beli Ram Malhotra Pleader son of Ganga Bishan, and Nisar Ali were the marginal witnesses to this unregistered sale deed. Nisar Ali worked as a tailor and his business premises were situate near the office of Beli Ram Malhotra Pleader in a different locality at the relevant time.

4. According to the averments in the plaint, the fact of the sale became known to the plaintiff on 23rd March 1955 and she instituted the suit on 3rd June 1955. It was contended on behalf of the plaintiff that there was fraudulent concealment of sale in favour of the respondent within the scope of section 18 of the Limitation Act and time was to be counted from the time when the fraud first became known to the plaintiff. Section 18 of the Limitation Act runs "

18. 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 limited 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."

5. The facts on which allegation of fraudulent concealment was based are (a) the deed is described as a mortgage deed, (b) nobody was aware of the sale of equity of redemption and (c) that the sale in favour of the respondent became known after he was called upon by the Custodian of Evacuee Property to account for the possession of the suit house. Learned counsel for the respondent contended that mere concealment of sale does not imply fraud, and in this connection reliance was placed on Jahana v. Sher Muhammad and others (P L D 1961 Lah. 1042). In the aforesaid case the sale deed was executed and registered at Lahore, although the land was situate in the District of Shahpur. There was also an additional circumstance in that case. The vendors had settled in Lahore. In the circumstances the Division Bench rightly held that "mere" concealment does not necessarily imply fraud, but at the same time the learned Judges observed: "There must be some evidence to establish affirmatively that the respondents had designed to prevent the discovery of the cause of action from the plaintiff." In the case before me in revision, the vendor acting in collaboration with the vendee had designed to prevent the discovery of the cause of action from the plaintiff by executing a mortgage deed. The learned counsel for the respondent contended on the authority of Ali Muhammad v. Malik Sanawal and others (P L D 1961 Pesh. 62) that pre‑emption can be defeated by such a device. In the reported case the vendees were anxious to take certain land and in order to defeat the pre‑emptors they resorted to the device of exchange. It was held that "there was nothing illegal in this device which the law permits". As I have been able to under stand the ruling, it means that the device should be legitimate and not fraudulent. The ruling is, therefore, clearly distinguishable. In the instant case, the mortgage deed was executed in favour of Abdul Wahid respondent with the object of concealing the real transaction. The vendee was put in possession in pursuance of the mortgage executed and registered in his favour and in about a month's time a sale of equity of redemption for Rs. 99 was surreptitiously executed in favour of Abdul Wahid. The whole object behind this clandestine move was to fraudulently conceal the transaction of sale from the pre‑emptor. It was laid down in Ganesh v. Sadiq and another (A I R 1937 Lah. 97) that‑‑ "If, when a land is sold the transaction is fraudulently described as one conferring occupancy rights on the purchaser in order to defeat the rights of pre‑emption and if the person having the right of pre‑emption is not aware of the fraudulent nature of the transaction, the limitation for pre‑emption begins to run from the date on which the fraud comes to the knowledge of the pre‑emptor."

6. The plaintiff stated that she got to know of this sale on the 23rd of March 1955 from her son. She also led evidence to prove this fact. We have it from Ghulam Mustafa, Record Keeper of the Office of Custodian Peshawar, that Abdul Wahid was called upon to account for his possession and his reply was received on 29th April 1954, that he was the owner of the suit house. It appears that Muhammad Ayub, the son of the plaintiff, learnt of it much later and the plaintiff lost no time in obtaining the necessary copies and instituted the suit to pre‑empt the sale. Abdul Wahid disclosed it for the first time on 26th April 1954, in his application (copy Exh. P. C.) to the Assistant Custodian, Peshawar, that he got this house mortgaged in his favour on 26th March 1939 and on the 24th of May 1939 the house was sold to him and that he got the house on mortgage to defeat the neighbour's right of pre‑emption. It is settled law that when fraud is established it is for the defendant‑respondent to prove the precise point of knowledge of those facts by the other party entitled to have the transaction set aside. See Habibbhoy v. Charles Agnew Turner (I L R 17 Bom. 341). I am tempted to quote) an observation which is at page

347. It reads thus:- "Their Lordships consider that when a man has committed a fraud, and has got property thereby, it is for him to show that the person injured by his fraud and suing to recover the property has had clear and definite knowledge of those facts which constitute the fraud, at a time which 9s to remote to allow him to bring the suit." Practically to the same effect is Babu Lal v. Parem Kumari (A I R 1929 Pat. 228). There is not a title of evidence on the record to rebut the plaintiff's statement that she got to know of the sale in favour of Abdul Wahid from her son for the first time on the 23rd of March 1955. I would, therefore, hold that it has not been established that the plaintiff had knowledge of the sale more than one year of the suit. On this view of the matter, the suit was well within E time and section 18 of the Limitation Act applied to the facts of this case. The finding of the Courts below on issue No. 1 is therefore, reversed.

7. In the result, the revision petition is accepted. The suit of the plaintiff to pre‑empt the sale of the house in dispute is decreed against the respondent on payment of Rs. 2300. The plaintiff should deposit this amount less any amount already deposited by the 10th of June 1964 for payment to Abdul Wahid failing which her suit shall stand automatically dismissed. In view of the difficult nature of the question involved in the case, I leave the parties to bear their own costs of this Court. S. Q. Petition accepted.