KHAWAJA vs MUHAMMAD DIN

' IFTIKHAR MUHAMMAD CHAUDHRY, J.--- This appeal by leave of the Court has been filed against the judgment, dated 5th August, 1999 in pursuance whereof Civil Revision No,169 of 1980 filed by the respondent has been accepted and concurrent findings of facts recorded by two Courts below have been set aside.

2. Precisely stating facts of the case are that one Taju, brother of appellant Khawaja, sold his property in the year 1969 to respondent Muhammad Din. The transaction of sale could not be matured being against the law of Land Reforms. As such respondent filed a suit before the Civil Court which was allowed on 4th March, 1969. In pursuance whereof 16 Kanals, and 13 Marlas was mutated in favor of respondent on 2nd December, 1970. Meanwhile matter remained under consideration before learned High Court and till then the appellant was not party because litigation was between Taju and respondent Muhammad Din. On 4th January, 1972 appellant filed a suit claiming possession of said land on the ground that being the real brother of Taju he has superior rights on it. On limitation his case was that under the circumstances Article 10 of the Limitation Act read with section 30 of Punjab Pre-emption Act will not be applicable and the time shall run from the date of passing of decree i,e, 4th March, 1969, therefore, Article 120 of the Limitation Act shall be applicable as such suit is within time. The suit was contested by respondent, inter alia on the ground that it was barred by time. Learned trial and Appellate Courts decreed the suit whereas learned High Court interfered in the concurrent findings of Courts below by means of impugned judgment.

3. Learned counsel for appellant contended that in view of the law laid down by this Court in the case of H. Niamatullah Khan v. Mst. Shabnam and others 1974 SCMR 425 and Khuda Yar and 4 others v. Nawaz Khan and 2 others PLD 1987 Lah. 127 the limitation for filing of suit in above explained situation is six years under Article 120 of the Limitation Act.

4. Learned counsel for respondent, however, contended that as transaction had taken place in 1964, therefore, even that Article 120 of the Limitation Act the suit was barred by time, therefore, impugned order may not be interfered.

5. We have heard both the sides and have also gone through the available record. It may be noted that as far as original transaction between Taju and respondent, took place in 1964, is concerned that was not accepted by the Revenue Authority being against Land Reforms therefore, respondent filed a suit and ultimately succeeded in getting a decree on 4th March, 1969 and thereafter matter remained pending in the High Court when Taju succeeded in getting the stay order from learned High Court which was vacated on 4th March, 1971 and in pursuance whereof, mutation entries were attested in favor of respondent on 2nd December, 1970. Therefore, following the dictum laid down by this Court in the case of Niamatullah Khan (ibid), we are of the opinion that Article 10 of the Limitation Act read with section 30 of the Preemption Act shall not govern the period of limitation for the purpose of filing of suit and Article 120 of the Limitation Act will govern period of limitation for pressing of a suit of such nature, which provides six years time to institute the suit for pre-emption.

' Thus, for the forgoing reasons appeal is allowed with costs. Impugned judgment is set aside and judgment of the trial Court dated 4th March, 1969 is restored.