KHUSHI MUHAMMAD vs ABDUL SHAKOOR

1. MIAN BURHANUDDIN KHAN, J.--This appeal by special leave is based on the following facts: that the appellant purchased a residential Khata in Chak No.157/P Tehsil Sadiqabad, District Rahimyar Khan by means of a deed executed by Abdul Aziz vendor on 7-2-1975 and registered on 11-2-1975.

2. Abdul Shakoor, plaintiff /respondent a real son of the vendor, filed a suit for possession by pre- emption in respect of the said Khata. The appellant herein resisted the suit on the ground, inter alia, of waiver of his right by the respondent. This plea was rejected by the trial Court and the suit was decreed in favour of the respondent. The present appellant filed an appeal which was dismissed by the learned Additional District Judge. The appellant then moved the High Court by a Civil Revision contending, inter alia, that the suit was barred by time and ought to have been dismissed under section 3 of the Limitation Act irrespective of the consideration whether the defence of limitation was set up by the petitioner or not. In this connection it was submitted that in the sale deed executed on 7th February, 1975 there was a recital to the effect that the petitioner had been put into possession of the Khata in question; and the limitation of one year for filing the suit would, therefore run from the date which is to be legally reckoned i.e from the date of the execution of the deed and not from the date of the registration of the sale; and as the suit was instituted on 10-2- 1976, it was, therefore, barred by limitation.

2. Learned counsel for the appellant relied upon the provision of Article 10 of the Schedule to the Limitation Act which lays down that the limitation of one year runs from the time when the appellant took possession of the whole of the property sold under the sale sought to be impeached and in the instant case the sale deed Exh.P/1 clearly recited that the physical possession is passed before the execution of the deed on 7-2-1975 and the plaintiff /respondent having chosen the terminus qua from 7-2-1975, the suit was barred by time as it was presented on 10-2-1976.

3. The learned trial Court framed three issues which are reproduced below:

(i) whether the plaintiff has waived his right of pre-emption

(ii) whether the suit property is not pre-emptiable in view of preliminary objection No.2 of the written statement

(iii) whether the attestation of plaint is defective.

3. (iii-a) whether the plaintiff has a superior right over the defendant.

4. The learned Civil Judge decided all the issues against the appellant. On appeal before the learned Additional District Judge, for the first time the plea of limitation was raised in the grounds of appeal, and the learned appellate Court observed as follows: "The question of limitation in the present case is not a pure question of law, therefore, the appellant is not entitled to raise the same"

5. "If the defendant deliberately abandoned the plea of limitation in the Court of first instant, he cannot be allowed to raise the question in appeal if the facts found do not enable the appellate Court to decide it and new finding would have to be obtained. The plea raised on behalf of the petitioner cannot be entertained as fresh inquiry if the petitioner had assumed possession of Khata under the sale before the document was registered will be necessary"

6. We are of the view that the findings of the three Courts; below call for no interference for the reasons given in the impugned judgments are sound and enunciated correct principle of law in this regard.

7. Appellant has not been able to prove that he had taken physical possession of the suit property on the date of the execution of the document. No oral or documentary evidence was produced in this behalf. Recital in the sale deed, by itself, as held by the Courts below would not establish a case of having taken over the possession of the property by the appellant on 7-2-1975.

8. It has been held by this Court in Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153 as follows: "However, in exceptional cases, a defendant has been held to be debarred from raising the plea of limitation on the general principle of estoppel arising from his conduct. This will be particularly so if the plea belatedly taken involves an inquiry on facts."

9. Hence, we find no merit in this appeal which is dismissed. No costs.