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Civil Petition for Leave to Appeal No. 118/R of 1986, decided on 2nd June, 1986.

(On appeal from the judgment and order of Lahoge High Court, Multan Bench, dated 12‑4‑1986 in Writ Petition No. 153 of 1986).

‑‑‑S. 12(2)‑‑Limitation Act (IX of 1908), S.18, Art. 14‑‑Decree obtained by fraud‑‑Setting aside of‑‑Limitation‑‑Petitioner through a declaratory suit obtaining decree against respondent that land in question was sold to them by Attorney of respondents‑‑Said Attorney having not matured his title to land in question, he was unable to pass same to petitioners‑ No receipt produced by petitioners to prove payment‑‑Finding of Court below that decree in respect of land secured by petitioners through fraud and misrepresentation, unexceptionable‑‑Respondent coming to know about impugned decree when petitioners got land in dispute partitioned from Settlement Tehsildar‑‑Application for setting aside decree filed by respondent thus in time‑‑Order of Court below setting aside decree, maintained.

‑‑‑S. 18 & Art. 14‑‑Limitation‑‑Setting aside of decree obtained through fraud and misrepresentation‑‑Limitation to start running from date when fraud came to the knowledge of party affected.

1983 C L C 1590 and P L D 1985 Pesh. 23 rel.

Hasan Ahmad Kanwar, Advocate Supreme Court with Sh. Salahuddin, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 2nd June, 1986.

Brief and relevant facts giving rise to this petition are that the predecessor‑in‑interest of the respondents being refugee, had lodged a claim for his lands abandoned in India and his claim was verified to the extent of 2,278 P.I.Us. For the purpose of allotment of land,‑ it is alleged that the respondents appointed their legal General Attorney Muhammad Ramzan respondent No. 5 vide document duly notified and registered before the Oath Commissioner on 10‑3‑1967. In the said power of attorney, the petitioners' case is that it was admitted and acknowledged by the respondents that the attorney can sell the area upto 1,139 P.I.Us. and that they had received the price of 526 P.I. Us. from Muhammad Ramzan the aforesaid General Attorney. Subsequently, it is stated that the said Attorney got the land equivalent to 1,665 P‑1.US. allotted and sold the same in favour of the present petitioners for Rs.1,11,000 and ever since they are in continuous possession of the said land. Later, the petitioners instituted a suit for declaration against Muhammad Ramzan, respondent No. 5 the aforesaid General Attorney which ended in a compromise and in pursuance of the decree in petitioners' favour mutation was sanctioned in the year 1971.

2. In 1983 the respondents filed an application under section 12(2), C.P.C. in the Court of the learned Civil Judge, Lieah who framed these issues: whether the decree, dated 1‑5‑1971 is based upon fraud and misrepresentation and is without jurisdiction; whether the applicants have got no legal justification to bring the application; whether the applicants are estoppel to file this application; and whether the application is time‑barred. The learned trial Judge, per order dated 29‑11‑1984, set aside the decree, dated 1‑5‑1971. An appeal was preferred against the aforesaid order, dated 29‑11‑1984 which was dismissed by the learned District Judge, vide order, dated 22‑1‑1986. Thereafter, the petitioners filed Writ Petition No. 153 of 1986 before the Lahore High Court, Multan Bench which was dismissed in limine, vide the impugend order, dated 12‑4‑1986.

3. The petitioners have now come to this Court seeking leave to appeal against the impugned order on the grounds that the application of the respondents under section 12(2), C.P.C. was barred by time. In normal condition, Article 14 of the Limitation Act would apply which prescribes one year period for setting aside decree but according to 1983 C L C 1590 and P L D 1985 Pesh. 23, residue Article 181 of the Limitation Act has been made applicable wherein a period of three years has been prescribed for proceedings under section 12(2), C.P.C.; that the respondents had never denied that Muhammad Ramzan respondent No. 5, was not their General Attorney; that in the instant case the law of estoppels would apply against the principal who had duly constituted their Attorney and the power of attorney was never rescinded. It was further contended by the learned counsel that the transaction in favour of the petitioners is protected under section 41 of the Transfer of Property Act because the petitioners are the bona fide purchasers; that there is misreading of evidence by the Courts below which calls for interference by this Court and lastly that the petitioners have been in possession of the suit property for the last sixteen years.

4. Examining the points raised by the learned counsel for the petitioners we are of the view that there is no force in them as the judgments of the Courts below are based on sound reasoning duly supported by the evidence on record. It has been established on the record that Muhammad Ramzan respondent No. 5 had not matured his title to the land in question, and, therefore, he could not pass better title to the other respondents‑petitioners. The learned High Court Judge has observed in the impugned judgment as under:‑

"Admitted position is that the land in dispute was confirmed in the name of the respondents on 23‑4‑1971. Petitioners have averred in their plaint Exh. P. 1, filed on 26‑4‑1971 that the land in dispute had been sold to them four months prior thereto i.e. somewhere in the month of December, 1970. It has, therefore, been rightly held by the learned trial Court that the respondents not being the owners would not have sold the land in dispute.'

It may also be mentioned that no receipt had been produced by the petitioners showing the payment of Rs.1,11,000 to the General Attorney Muhammad Ramzan nor Muhammad Ramzan had made any assertion that he had informed the lady‑respondents of the suit and had secured their consent to file Iqbali Dawa on their behalf. It had been found as regards issue No. 4 that the said decree was secured by the petitioners through fraud and misrepresentation and this finding is not exceptionable. This being so the limitation would start running from the date when the fraud became known to the respondents as provided in section 18 of the Limitation Act. The learned District Judge has found that the respondents came to know of the impugned decree on B 1‑4‑1983 when the petitioners got the land in dispute partitioned from the Settlement Tehsildar and as such the application' 12(2), C.P.C filed on 2‑5‑1983 was within time. Thus we find merit in this petition. Leave refused and the petition is, consequently dismissed.

M . Y . H . Petition dismissed.

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