ABDUL RASOOL Versus GHULAM RASOOL

KARAM ELAHEE CHUHAN , J .-Abdul Rasool, defendant No. 6, was owner of land, situated in District Multan. He sold this land to his brother Abdul Ghafoor, defendant No. 7, by means of a registered sale deed Exh. P/7 dated 12-12-1963. Later the same vendor Abdul Rasool gave the same very land to Faiz Ali, Umar Ali, Allah Buz , Muhammad Hussain and Piranditta, defendants 1 to 5 in exchange for their land situated in District Muzaffargarh vide exchange deed Exh. P/5 dated 23-12-1963. Thereafter Abdul Rasool transferred the land obtained by him in District Muzaffargarh to Ghulam Rasul and Ghulam Mohammad plaintiffs I and 2 by means of registered sale deed Exh. P/6 dated 30-12-1963 in consideration for a sum of Rs. 70,000.

2. Later on it transpired that there was some defect in the title of the land purchased by Ghulam Rasool and Ghulam Muhammad, plaintiffs, inasmuch as, Abdul Rasool defendant No. 6 had already transferred the land in Multan to his brother Abdul Ghafoor whereafter he could neither give the same land in exchange to defendants 1 to 5 nor could he in consequence obtain land in District Muzaffargarh for further sale to the plaintiffs. In these circumstances Ghulam Rasool and Ghulam Mohammad plaintiffs on 6-6-1972 filed a suit in the Court of Civil Judge, Multan for possession of the land in District Muzaffargarh alleging that the vendor had really practised fraud on all concerned, (see para. 3 of the plaint). 1n the alternative a prayer was made for the refund of a sum of Ra. 70,000 due to the frustration of contract of sale dated 30-12-1963. The proceedings against defendants in the trial Court were ex parte and as a result thereof on the facts and circumstances hereinbefore mentioned an ex parts decree was passed by the learned Civil Judge Multan in favour of the plaintiffs for a sum of Ra. 70,000. The defendant Abdul Rasool, the principal vendor, has some up in regular first appeal against the judgment and decree of the learned Civil Judge dated 31-7-1977.

3. The first point argued by the learned counsel for the defendant/appellant was that suit in Multan district for possession of land in Muzaffargarh district was not maintainable. The contention has force. The territorial jurisdiction of Multan Court extended only to the land situated fn that district. From that point of view the suit with regard to possession of land in Muzaffargarh district deserved to be dismissed. It was a point of jurisdiction and even though the proceedings were ex parte, the learned Civil Judge ought to have attended to the same especially when the situation was apparent on the face of the record and was self evident. We bold accordingly. It is further to be pointed out that the learned Civil Judge did not grant relief of possession of Muzaffargarh property to the plaintiffs, who however, have not filed any appeal or cross-objections to press that relief before us.

4. As regards the claim for the refund of Ids. 70,000 it was argued by the learned counsel for the appellant that the suit was clearly time barred. The contention seems to have merit. We have examined this matter from three angles= Firstly if the suit is to be taken as one for refund of money because of the failure of consideration then it will be governed by Article 116 of the Limitation Act IX of 1908 which prescribes a period of six years from the date of the breach of the contract. In Bishen Singh v. Dadna (A I R 1916 Lah. 312) (Rattigan, J.) the plaintiff cued for recovery of money, which he had advanced to the defendant, together with damages, alleging that the registered mortgaged deed, which the defendant had executed in his favour, stipulating delivery of possession of the land mortgaged to him, could not be enforced as he had discovered that the land had already been mortgaged with possession to another person. He stated that the defendant had practised fraud on him. It was held that the plaintiff eras suing to recover money upon a contract reduced to writing and registered and also for damages for breach of the contract and that the suit was therefore governed by Article 116 of the Limitation Act and not by Article 95 or 86 of the said Act. It was further held that the plaintiff's allegation that the contract was induced by fraud could not curtail ordinary period of limitation provided for such suits. To the cause strain is Thamman Singh v. Dalchand (A I R 1922 Ondh 113) which was a case where plaintiff desired a money decree on the plea that the defendant had fraudulently represented the property to be alienable property. However, the Court found no fraud to have been proved. In these circumstances it was held that the suit would have been governed by Article 95, Schedule I of the Limitation Act only if the alleged fraud had been established, but as that was not the situation, therefore, the proper Article applicable to the suit was Article 116, Schedule I of the Limitation Act. Secondly if the case is to be taken as one for refund of money obtained by the vendor by practising fraud about his title then the suit will be governed by Article 95 which prescribes a period of three years from the date of the knowledge of the fraud. It may be mentioned here that the plea of fraud finds mention in para. 3 of the plaint and to the similar strain is the finding of the learned Civil Judge as contained in para 2 of the judgment at page 9 of the paper book lines 12 to 16 where he held that "nevertheless he fraudulently gave this land to defendants 1 to 5 and in exchange got the suit land which rendered the exchange as void. Likewise the defendant No. 6 who did not acquire proprietary rights in the suit land transferred the same to the plaintiff and in lieu thereof got Rs. 70,000 from them which sale is void". In this view of the matter we arm primarily of the view on the basis of the pleadings as contained in the plaint and the above finding recorded by the learned Civil Judge. Article 95 can squarely be attracted to the facts and the circumstances of this case. Thirdly, since we have examined the case from all angles, therefore, even if the suit is to be treated as not failing under any specific Article then it will fall under residuary Article 120 which prescribes a period of six years from the date when the right to sue accrued. In the instant case the last sale deed in favour of the plaintiff is dated 80-12-1963. The suit however was instituted on 6-6-1972. The plaintiffs had knowledge about the frustration of the contract/consideration of sale on 11-2-1964 as is evident from their own document Exh. P/3 which is a complaint filed by the plaintiff Ghularn Rasool in a criminal Court for proceeding against the vendor concerned under the Criminal Law alleging that he has defrauded them. A perusal of that document will show that it was scribed on 11-2-1964 though it appears to have been filed later in the year 1970. This will indicate that the plaintiffs bad knowledge about the frustration of the contract/consideration or of fraud practised on them at least from 11-2-1964 (though it is a common ground that possession of suit land was never delivered to them which factor would fix the knowledge about all these matters from much prior date or dates) and a suit which was instituted eight years thereafter on 6-6-1972 would obviously be time barred. This will show that looked at from whatever angle, the position remains the same. It was the duty of the learned Civil Judge to attend to the point of limitation m laid down in section 3 of the Limitation Act IX, of 19088 especially when it wan apparent from the facts on the record which, however, he did nor, do and in decreeing an obviously time barred suit he really acted without jurisdiction. It appears that the learned Civil Judge decided the case in haste and necessary questions pertaining to limitation and jurisdiction were not even attended to.

5. In view of the above discussion the judgment and decree of the learned Civil Judge which are, in the circumstances explained above,: not warranted by the law relevant on the subject are set aside. The appeal is accepted and the suit of the plaintiffs-respondents is dismissed. The parties to bear their own costs.

S. Q. Appeal accepted.