2007 PLP 2474 (YLR)

SYED ASGHAR HAIDER, J.--The petitioner is a fractional owner of the disputed house, the respondent purchased a fractional share in this house from Bashi]. Ahmad on 7-7-2000, but kept the transaction of sale-deed secret. The petitioner learnt of the execution of the sale-deed on 14-10-2004, while prosecuting another suit titled "Kausar Parveen v. Muhammad Igbal", she made Talb-i-Muwathibat in the Court Room and after fulfilling the legal requirements of Talb-i-Ishhad, filed a suit for possession through pre-emption on 12-2-2005. The suit was contested by the respondent, the trial Court framed the following issues:-- ISSUES (1) Whether the suit of the plaintiff is not maintainable in its present _ form? OPD (2) Whether the plaintiff is estopped by his words and conduct _ to file the instant suit? OPD (3) Whether plaintiff has superior right of pre-emption qua the defendant? OPP (4) Whether the plaintiff has brought this suit after fulfilling all required demands? OPP (5) Whether the plaintiff is entitled to decree for possession through pre-emption as prayed for? OPP (6) Relief. Thereafter it treated the first issue, as a preliminary issue and dismissed the suit, holding that it was barred by time. Aggrieved thereof, the petitioner filed appeal, which after contest, was also dismissed. Hence the present petition.

2. The learned counsel for the petitioner contended that there was no direct issue qua the question of limitation, the suit is well within time and the issue of limitation is a mixed question of law and fact, therefore, the plaint could not be rejected summarily under the provisions of Order VII, rule 11, C.P.C. and finally adverted to the contents of the plaint to contend that he had adverted to the effect of notice under section 31 of the Punjab Pre-emption Act, 1991 but it was not attended to by the trial Court. He relied on the following precedent: "Mian Asif Islam v. Mian Muhammad Asif and others (PLD 2001 SC 499); "Khushi Muhammad v. Abdul Shakoor", (1987 SCMR 1473); "Khuda Yar and 4 others v. Resaldar Malik Nawaz Khan and 2 others (PLD 1987 Lahore 127); "Ashiq Hussan and another v. Ashiq Ali" (1972 SCMR 50) and Muhammad Ibrahim and 2 others v. Asrar Ahmad Khan and others" (PLD 2006 Lahore 582)".

3. The learned counsel for the respondent defended the impugned judgment and decree, as well as, the judgment and decree of the trial Court, to plead that the Punjab Pre-emption Act, 1991, is a Special Law and section 30 clearly prescribed the period of limitation. The suit admittedly was filed beyond the period of limitation, therefore, it required recording of no evidence and was rightly dismissed. Section 31 of the Punjab Pre-emption Act, 1991 has to be read in conjunction with section 30 of the Act, (ibid) therefore, the suit was barred by limitation. He lastly stated that the parties were aware of the precise proposition adjudicated by the trial Court, therefore, Issue No. l , sufficiently covered the dispute, it was not objected to by the petitioner, before the trial Court or before the lower Appellate Court, therefore, this objection cannot be raised in the present proceedings. He has relied on the following precedent.-- "Mian Asif Islam v. Mian Muhammad Asif and others" (PLD 2001 SC 499).

4. I have heard the learned counsel for the parties and perused the impugned judgment and decree as well as the order and decree of the trial Court.

5. The record clearly reflects that, the property was sold on 7-7-2000, the present suit was filed on 12-2-2005, section 30(a) of the Punjab Pre-emption Act, 1991 requires, that the suit be filed within four months of the date of registration of sale-decd. In the present matter, the sale-deed was registered on 7-7-2000, therefore, the suit is patently barred by time. The learned counsel for the petitioner adverted to section 30(d) of the Punjab Pre-emption Act, 1991 to demonstrate, that suit is within time, pleading that the petitioner gained knowledge on 14-10-2004, while prosecuting another suit, she thereafter filed the present suit on 12-2-2005, within the required period of limitation. The assumption is incorrect, section 30(d) comes into play, only, if the provisions of section 30(a)(b) & (c) are not applicable. The property was sold by a registered sale-deed, this is covered by section 30(a) of the Act, therefore, the period for filing suit was four months of registration of sale-deed, but it was filed after a massive delay. Even otherwise, after discovering the sale on 14-10-2004, the petitioner again waited for two months, there is no explanation for this delay, this makes her case doubtful. The learned counsel for the respondent is correct to state that the provisions of sections 30 and 31 of the Punjab Pre-emption Act, 1991, are to be read together. The plaint does refer to section 31, but there is nothing in the plaint to suggest that the copy of the sale-deed was not affixed as required by law, thus, she cannot plead non-adherence to this provision. The long silence of the petitioner for over four years and thereafter delay of two months, after admitted discovery of sale-deed, clearly spell out, that the suit is barred by afflux of time, and was therefore, rightly dismissed. The precedents referred to by the learned counsel for the petitioner are distinguishable on facts. Resultantly, this petition has not merits and is dismissed. S.A.K./K-20/L Petition dismissed.