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Defendants‑Respondents

Regular Second Appeal No. 232 of 195 5, decided on 3rd October 1961.

Fraud‑Sale transaction subject to right of pre‑emption ‑‑Mere concealment of sale‑Does not imply fraud‑‑Land situated in Sale‑deed registered at L : place of residence of vendors --Defendants not designing to prevent discovery of sale by plaintiff -- Pre‑emption‑-Wilful omission to notify fact of sale to pre- emptor-‑Does not per se connote fraud‑Limitation Act (IX of 1908), S. 18‑-Civil Procedure Code (V of 1908), O. VII, r. 6.

Kaka Ram v. Muhammad Ali and others 209 P L R 1911 ; Kalyan Mal v. Ahmad‑ud‑din Khan A I R 1934 P C 208 and Ghulam Raza v. Sardar Khan 86 P R 1902 ref.

Muhammad Fazil for Appellant.

M. B. Khizar Tamimi for Respondents.

Date of hearing : 3rd October 1961.

Tine fasts leading up to this regular second appeal by the plaintiff are : Mukhtar Muhammad, Altaf Ahmad and Abdul Jalil, respondents Nos. 8 to 10, who are brothers, originally belonged to Bhera. They owned 133 kanals and 15 marlas of land in village Ratto Kala, District Shahpur. They are now settled in Lahore and are living in Samanabad. On the 24th November 1952, they sold the aforesaid land to respondents Nos. l to 7 for Rs. 22,500 by a deed registered at Lahore.

2. On the 1st of December 1953, Jahana plaintiff‑appellant instituted a suit for possession by pre‑emption of the land sold by respondents Nos. 8 to 10. He contended that he was a co‑sharer in the khata and a proprietor in the village and, there fore, had a superior right as compared with that of the vendees who were neither co‑sharers in the khata nor proprietors in the village. The vendees contested the suit which they pleaded vas barred by time. According to the plaintiff‑pre‑emptor, the vendors and the vendees had kept the factum of the sale secret from him and he learnt of it fox the first time towards the end of November 1953 and filed the snit soon after.

3. In view of the pleadings of the parties, the learned trial Judge framed the following preliminary issue

Is the suit within time

4. As would appear from the following, the suit was filed seven days after the prescribed period of one year. The sale‑deed was executed on the 24th of November 1952. Section 30 of the Pre‑emption Act, fixes the period of limitation for a suit to enforce a right of pre‑emption at one year from the date of the sale. The suit having been filed on the 1st of December 1953, was, prima facie, barred by time. Jahana plaintiff‑appellant appeared as his own witness and also examined Mahla (P. W. 1), in support of his case Jahana plaintiff‑appellant and his brother were the tenants of the land in dispute. According to Jahana plaintiff- appellant, he learnt of the sale for the first time from Ghulam Rasul, one of the vendees, who told him not to seek renewal of the lease of the land in dispute as it had been sold to him and others by respondents Nos. 8 to 10. Jahana plaintiff‑appellant and his brother being the lessees of the land in dispute, apparently the vendees obtained possession of the land from them. The question is when did the vendees take possession of the land in dispute from Jahana plaintiff‑appellant. Mahla P. W. stated in his cross‑examination that the cotton crop of Kharif 1953 was collected by the vendees from the land in suit. He also admitted that Rabi crop of 1954 was cultivated by the vendees. Kharif crop is generally sown in March or April and is harvested from October to December. Thus, according 1o the statement of Mahla P. W. 1, the vendees took possession of the suit land in March or April.

5. Jahana plaintiff‑appellant stated in cross‑examination that the sawani crop of 1953 was cultivated and collected by the tenants of the vendees. It is well known that sawani is sown during Chet and Besakh, i.e., between the 15th of March and 14th of May of the calendar year. Thus the vendees took possession of the land in suit at any time between 15th March and 14th May. In the circumstances, it can be safely assumed that Jahana knew about the sale of the land is dispute at least in March or April 1953.

6. Learned counsel for the appellant urged that the sale was fraudulently kept secret from Jahana plaintiff‑appellant and, therefore, time will run against him from the date when he learnt of the transaction as contemplated by section 18 of the Limitation Act which reads: --

"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 aocessory 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 persons injuriously affected thereby, or, in the case of the concealed document, when he first had the means of producing it or compelling its production."

It was argued that Jahana could have filed the suit within one year from the date on which he learnt of the sale. In support of his contention that the sale had been kept secret from Jahana, the learned counsel relied on .the fact that the sale‑deed was executed and registered at Lahore, although the land in dispute is situated in the district of Shahpur. As already stated, the vendors are now settled in Lahore and this explains why the sale deed was executed and registered at Lahore. Mere concealment does not necessarily imply fraud. 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 pre‑emption cases wilful omission to notify the fact of sale to the pre‑emptor does not per se connote a fraud. In Kaka Ram v. Muhammad Ali and others (209 P L R 1911), it was held as follows: ‑

"Mere omission on the part of a vendor to give notice of sale to a pre‑emptor does not amount to fraud within the meaning of section 18. It mast be shown not merely that the sale was not proclaimed but that it was fraudulently con cealed."

It is noteworthy that the plaintiff did not allege fraud in the plaint. All that is alleged therein is that the vendors and the vendees conspired and kept the factum of the sale secret from him. Order VII, rule 6 of the Code of Civil Procedure reads: ‑

"Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed."

In Kalyan Mal. v. Ahmad‑ud‑din Khan (A I R 1934 P C 208), while considering Order VII, rule 6 of the Code of Civil Procedure, their Lordships observed: ‑

"The learned counsel for the appellant has also urged that the case against Bashir‑ud‑din should be treated as one of fraud to which section 18, Limitation Act (IX of 1901), would be applicable. He has contended that Bashir‑ud‑din repre sented himself to be a joint owner of the mortgaged property, and that the plaintiff was, by reason of that fraud, prevented from instituting the suit within the period of six years pre scribed by law. It is unnecessary for their Lordships to deal with the merits of the question. It is clear that the contention was never put forward in either of the Courts in India and that, while Order VII, rule 6, Civil Procedure Code, provides that where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed, no exemption on the ground of fraud was claimed in the plain. Nor is there any proof of the alleged fraud, or of the date when it became known to the plaintiff."

The plaintiff did not allege fraud even in his statement at the trial, the relevant portion of which statement is as follows: ‑

In Ghalam Raza v. Sardar Khan (86 P R 1902) Division Bench of the Punjab Chief Court held: ‑

"The expression by means of fraud' as such in section 18 of the Limitation Act, means active deceit in defrauding or endea vouring to defraud a person of his rights by some artful device; therefore where the vendor and the vendee had by their act of omission and commission in point of fact kept the pre‑emptor from the knowledge of the sale, but were able to prove that neither of them had any intention to fraudulently conceal the sale from the pre‑emptor, and were able to give a reasonable explanation of their conduct and the acts alleged to constitute fraud, the pre‑emptor was not under the circumstances entitled to the benefit of the provisions of section 18 of the Limitation Act:"

We have carefully considered the plaintiff's statement. He has not referred to, any act on the part of the vendors or the vendees showing that they had an intention to deceive hint. Merely that the sale‑deed was executed and registered at Lahore does not warrant the inference of fraud.

7. Both the Court below have held that the plaintiff' learnt of the sale when he handed over‑possession of the land in suit to the vendee in March or April 1953. This is a finding of fact and cannot be challenged in second appeal.

8. For the reasons given above, we find no force in this appeal which is hereby dismissed with costs.

K. M. A. Appeal dismissed,

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