ISMAIL Versus JANAT BIBI

ABAID ULLAH KHAN, J. ‑‑The events and circumstances leading to the filing of the present review petition may be shortly stated. One Kamal Din, son of Umru, Gujar by caste, resident of village Mangat in Tehsil Phalia of Gujrat district, sold 25 Kanals 4 Marlas of the land in dispute, situate in the area of Mangat estate, to Ismail, petitioner, and Mutation No. 3633 (copy Exh.P.4) in respect of the sale was attested on the 15th November, 1964. Kamal Din's mother, Mst. Janat Bibi, respondent, whose superiority of pre‑emptive right is no longer in dispute, instituted suit to pre‑empt the sale. She averred that the sale had taken place for Rs.5,000, which amount represented market value of the land, but an ostensible consideration of Rs.12,062 had been fictitiously got entered in the mutation. The petitioner asserted that the land had been sold for Rs.12,562 and that its market value was in excess of the said amount. He resisted the suit, inter alia, on the ground, which alone is relevant for the purpose of disposal of this review petition, that it was time‑barred. He gave no reason in the written statement for the suit being out of time.

2. The learned trial Court settled for determination several issues including the one whether the sale price of Rs.12,062 had been fixed in good faith or paid and the other touching the bar of limitation. On the 16th January, 1975, when the petitioner was required to produce his evidence he made a statement to the effect that if the respondent were to be ready to pay the entire amount of Rs.12,562 he would not like to give any evidence and that his evidence should be considered to have been closed. The respondent promptly agreed that she was prepared to pay Rs.12,562. The respondent having already adduced her evidence the petitioner's evidence was closed and after hearing arguments the judgment was pronounced by the learned Civil Judge, Mandi Baha‑ud‑Din, that very day decreeing the respondent's suit on payment of Rs.12,562. The perusal of the judgment indicates that the issue of limitation was not pressed during the course of arguments and it was consequently decided against the petitioner.

3. The petitioner preferred an appeal against the judgment and decree of the learned trial Court to the learned District Court. Gujrat. In the memorandum of appeal nothing specific regarding the finding of the learned trial Court on the issue of limitation was mentioned. All that was said in general terms was that the learned trial Judge had not clearly discussed all the issues. The learned Additional District Judge, Gujrat, while dismissing the petitioner's appeal on the 14th October, 1975, observed in his judgment that the learned counsel for the petitioner had been unable to point out any circumstance showing that the transaction of sale had been completed prior to the day of attestation of mutation or that the possession of the suit land had been transferred to the appellant earlier. He found that the suit having been filed on the 13th November, 1965, within an year of the date of sanctioning of mutation was within time.

4. The petitioner's further appeal (R.S.A. No.682 of 1985) against the decree of the first appellate Court was dismissed in limine by this Court on the 4th November_ 1975_ Answer to the issue of limitation was returned against the petitioner on the assumption that the suit had been filed on the 13th November, 1965, as pointed out by the learned Additional District Judge.

5. The petitioner sought review of the order of dismissal of his appeal on the ground that the suit had been instituted on the 3rd December, 1965, and not on the 13th November, 1965, and, therefore, it was time‑barred and merited dismissal. He maintained that the plaint though written on the 13th November, 1965, was‑‑ presented on the 3rd December, 1965.

6. The respondent, apart from disputing the correctness of the petitioner's stand and asserting that the suit had been filed on the 13th November, 1965, came up with the plea that since the decree rested upon the consent of the petitioner, the latter could on no account impugn its legality even on the basis of limitation. In support of his contention the learned counsel for the respondent invoked the aid of the rule laid down by the Privy Council in Ramchandra Deo Garu v. Chaitana Sahu A I R 1920 Privy Council 139.

7. The learned counsel for the parties cited certain decisions of the superior Courts before the then learned Acting Chief Justice who, by his order of the 27th September, 1977, constituted Full Bench to thrash the matter.

8. After going through the record of the suit with the assistance of the learned counsel for the parties we found that in fact the plaint of the suit was presented on the 13th November, 1965. The learned Civil Judge, Mandi Baha‑ud‑Din, in whose Court the suit was to be instituted, was on leave from the 4th October to the 13th November, 1965. He had been allowed to pre‑fix Sunday, the 3rd October, 1965, and suffix Sunday, the 14th November, 1965, with his leave. In his absence on the 13th November, 1965, the plaint was received by the officer who was duly authorised to do so: The date of presentation, that is, the 13th November, 1965, is clearly endorsed on the plaint and there can be no manner of doubt that the suit was instituted on the 13th November, 1965. Faced with this factual position the learned counsel for the parties conceded that no legal point demanded resolution. The suit was, therefore, clearly within time as, it had been brought within the statutory period of an year of the) date of attestation of mutation of sale.

9. We may mention that the decree passed by the learned trial Court cannot be considered as a consent decree because the petitioner simply agreed not to produce his evidence, which he was supposed to have produced on that day (16‑4‑1964), if the respondent were to pay Rs.12,562; actually he was settling the issue regarding the price of the land which the respondent was to pay him in case her suit were to be decreed. His undertaking can in no way be interpreted) as relinquishment of his objection pertaining to the suit being, time‑barred.

10. In view of what has been said above no review of the order is called for. This petition is dismissed leaving the parties to bear their own costs.

H.B.T./I‑59/L Review petition dismissed.