MUHAMMAD ILYAS Versus MUHAMMAD BASHIR

MIAN SAQIB NISAR, J.-- -Writ Petitions Nos.11211/2005 and 11212/2005, are being decided together as both involve common questions of law and facts.

2. On 26-6-2003, respondent No.3, filed two suits for pre-emption, pre-empting the sales of the suit-land made in favour of the petitioner, vide registered sale-deeds dated 10-12-2002, and the mutations to the above effect also sanctioned the same day. It is the case of the respondent in his plaint, that he learnt about the sale on 19-6-2003, made Talb-i-Muwathibat, followed by a notice of Talb-i-Ishhad; the suits, as mentioned earlier, having been filed on 26-6-2003, were obviously beyond the limitation period of four months, as prescribed by section 30 of the Punjab Pre-emption Act, 1991 (the Act).

3. The petitioner thus, instead of riling the written statement, moved an application under Order VII, Rule 11, C.P.C., seeking the rejection of the plaints being barred by time. The learned Civil Judge, has dismissed the application on 12-10-2004, holding that the question of limitation in these matters, is a mixed question of law and facts, which can only be resolved after the framing of the issues and recording of the evidence; the revisions filed by the petitioner based upon the same reasoning have been dismissed by the learned ADJ on 22-2-2005. Hence these writ petitions.

4. Learned counsel for the petitioner states, that notwithstanding any reason or the situation, where the transaction of sale has been effected through a registered sale-deed, the maximum period of limitation prescribed under section 30 of the Act, for pre-empting such sale is four months. It is further submitted, that the provisions of sections 30 and 31 of the Punjab Pre-emption Act, 1991, are entirely independent, and do not have any conjunctive effect; the application of clauses (a) and (b) of section 30 is not subject to the requirement of the affixation of a public notice, of the sale by the concerned officers. The Courts below thus, under section 3 of the Limitation Act, were bound to reject such time-barred plaint. The Courts have failed to exercise their jurisdiction in accordance with law and have drawn a patently illegal conclusion, that the question of limitation is a mixed question of law and facts, and therefore, can only be resolved after the recording of evidence, rather no factual enquiry was/is needed in the matter, as the requisite facts between the parties are admitted.

5. On the contrary, Mr.Zaka-ur-Rehman, Advocate for Respondent Nos.3, states that at the time of the sales the respondent was in possession of the suit property, but the transaction was collusively kept secret by the vendee and the vendor, with the obvious and fraudulent object to prevent the respondent from exercising his right of pre-emption within time; it is only on 19-6-2003, when an attempt was made by the petitioners to dispossess the respondent from the suit properties, that he learnt 'about the sales and made the Talbs in accordance with law, therefore, the respondent's case squarely falls within the ambit of section 30(c) and not the clauses (a) and (b) of the Act. It is further submitted, that sections 30 and 31 are interdependent and the period of limitation prescribed by section 31(a)(b), is subject to the fulfilment of the condition laid down in latter section inasmuch as, the display of the public notice within two seeks of the registration of the sale-deed, is a sine quo non for the purposes of the start of the limitation of four months; besides, the period of limitation shall commence from the date of knowledge and not from the actual registration of the sale-deeds. In support of his case, the learned counsel for the respondent has relied upon Mian Asif Islam v. Mian Muhammad Asif and others PLD 2001 SC 499 and Muhammad Khan v. Muhammad Hussain and 2 others 2002 YLR 1353.

6. I have heard the learned counsel for the parties and find it expedient to reproduce section 30 of the Punjab Pre-emption Act, 1991, which reads as follows:---

"30. Limitation.---The period of limitation for a suit to enforce a right of pre-emption under this Act shall be four months from the date.

(a) of the registration of the sale-deed;

(b) of the attestation of the mutation, if the sale is made otherwise than through a registered sale-deed.

(c) on which the vendee takes physical possession of the property if the sale is made otherwise than through a registered sale-deed or a mutation; or

(d) of knowledge by the pre-emptor, if the sale is not covered under paragraph (a) or paragraph (b) or paragraph (c)."

According to the bare reading of the section, when considered and applied independent of section 31 of the Act, it is undoubtedly clear, that the Legislature, in the cases falling within the ambit of clauses (a) and (b), has fixed the maximum period of limitation for filing a pre-emption suit as four months, notwithstanding whether the knowledge of the sale has been attained by the pre-emptor or not; whereas according to clause (c), if the physical possession of the pre-empted property is taken under the sale; and the sale has been made otherwise than a registered deed, or by an attestation of the mutation, the time shall commence from the date of the change of physical possession, while clause (d), is the residuary provision which shall be attracted, if the case does not fall within the ambit of clauses (a) to (e). The provisions of section 30 thus, when considered in exclusion of any other section of the Act; it is quite clear and vivid, without any fear of doubt that, irrespective of any eventuality or the situation, the maximum period of limitation provided for the cases falling in clauses (a) and (b) is four months.

7. However despite the above, the question may arise, if by virtue of section 29 of the Limitation Act, 1908, the prescribed and conclusive period of four months can be extended, when the plaintiff has brought his case within the scope and purview of any of the sections 4, 9 to 18 or 22 of the law ibid. The answer to the above due to the clear and express language of section 29 is free from any difficulty. This section which is the part of the general law of the land on the subject of limitation, in unambiguous terms enunciates that it shall apply to the special or local laws, until and unless its applicability is expressly excluded. The Act 1991, which is a special law is silent about the exclusion of section 29, meaning thereby that the plaintiff in a pre-emption matter can take the benefit of the section if he has made out a case squarely falling within the provisions, mentioned therein. But before a plaintiff of a pre-emption cause can take benefit of the said section, he according to Order VII, Rule 6, C.P.C. has to show and state in the plaint the grounds upon which the exemption from the limitation is claimed; this is mandatory and foundational in nature, without which no structure of proof can be raised. The plaint of the instant case has been perused and it is found conspicuously lacking in this behalf. Not only that no ground of exemption on the basis of section' 18 of the Limitation Act, which at the most was attracted to the petitioner's case, has been set out, rather without specifying as to when the cause of action has risen in favour of the plaintiff, it is mentioned

Therefore, I am of the considered view, that no case for the exclusion of the time from four months period was either claimed or set out by the petitioner on any count.

8. Now considering the other question, if section 30 is regulated or is dependent upon section 31 of the Pre-emption Act, suffice it to say, that in the judgment reported as Mian Asif Islam v. Mian Muhammad Asif and others PLD 2001 SC 499, though the learned author Judge has taken the view that later section has an impact upon the former section, but the other learned Judge on the Bench, has shown concurrence with the view earlier expressed by the judgment reported as Maulana Nur-ul-Haq v. Ibrahim Khalil 2000 SCMR 1305, holding:-

"7. The explicit and the mandatory provisions of section 31 of the Act leave no room for doubt that in case of a sale effected through a registered sale-deed the period of one hundred and twenty days shall be computed from the date of registration of the sale-deed. The contention that if the Registrar fails to issue public notice envisaged by the mandatory provisions 'of section 32 of the Act the period of limitation is to be computed from the date of knowledge by the pre-emptor is misconceived. Such a provision is neither contained in section 31 of the Act nor can be read into it in view of settled law that Court cannot supply "causus omissus".

9. The proposition, however, has been clinched by the latest judgment of the Hon'ble Supreme Court, by a Bench comprising of three Judges, in the case reported as Qasim Ali v. Rehmatullah 2005 SCMR 1926, in which it has been held as under:--

"It would thus, appear that in the present ease, paragraph (a) of section 30 of the Act was attracted and the date of the registered sale-deed was terminus a quo for computing the limitation period. The other paragraphs of section 30 (ibid) would have no application. Moreover, the provisions of section 30 operate proprio vigore and are independent of section 31 of the Act. The period of limitation for filing the pre-emption suits is governed by section 30 and not by section 31 of the Act."

10. Without prejudice to the above, even otherwise the petitioner has not pleaded in his plaint, that the Registration Officer failed to comply with the provisions of section 31(2) of the Act, as no notice within the specified time was given after the registration of the sale-deed. It is for c the first time, that in reply to the application under Order VII, Rule 11,C.P.C., filed by the petitioner, the plea was raised that the plaintiff learnt about the sale when he was dispossessed from the property and that no notice was issued by the officer concerned, in terms of section 31. I am afraid, that by the time the stage to propound the plea had passed, because the presumption of regularity is attached to the official acts and nothing had been stated to controvert the said presumption in the plaint.

11. According to section 3 of the Limitation Act, it is the duty of the Court to apply the limitation, even if this has not been set out as a defence, but in the instant case, the petitioner very expressly had attacked the respondent's suit on the ground of limitation, therefore, on the basis of the admitted facts of the case and by applying the correct law, mentioned above, the Court should have .decided the application under Order VII, Rule 11, C.P.C., rather keeping the matter pending on the pretext, that the issue pertained to limitation is a mixed question of law and facts, whereas there was no requirement of any probe into any factual aspect of the matter, as no controversy on the basis of the admitted facts was involved. The impugned orders, therefore, cannot be sustained, which are hereby set aside, the matter is remanded to the learned Trial Court, to decide afresh the application of the petitioner, under Order VII, Rule 11, C.P.C. in accordance with law. Accordingly these writ petitions are allowed.

S.A.K./M-114/L ????????????????????????????????????????????????????????????????????????????????? Petitions accepted.