NAZU KHAN vs KARAM HUSSAIN KHAN through Legal Heirs
This petition for leave to appeal arose from a pre-emption suit filed by the respondent challenging the sale of land to the petitioner-vendee. The trial court had dismissed the suit on the ground of limitation. However, the appellate court and the Lahore High Court reversed this decision, holding the suit to be within time. The Supreme Court of Pakistan examined whether the suit was barred by limitation when the petitioner had not raised any objection regarding limitation in his written statement and no issue was framed on it. The Court held that since the petitioner admitted the sale took place on May 11, 1973, and the respondent's suit was filed on January 3, 1974, the suit was well within the statutory period. The Court reaffirmed the settled legal principle that the period of limitation for a pre-emption suit starts from the date of attestation of the mutation and not from the date the vendee enters into possession of the land. Consequently, finding no legal or factual infirmity in the High Court's judgment, the Supreme Court dismissed the petition and refused leave to appeal.
- Whether the period of limitation for a pre-emption suit commences from the date of attestation of mutation or from the date the vendee enters into possession of the land?
- Can a suit be dismissed on the ground of limitation if no objection on limitation was raised in the written statement and no issue was framed by the trial court?
' SH. IJAZ NISAR, J.---Leave is sought against the judgment, dated 30-6-1998, of the Lahore High Court, Lahore, passed in R.S.A. No.754 of 1977.
2. The facts, in brief, are that one Allah Bakhsh sold 9 Kanals, 19 Marlas of land, situate in Mouza Shawanpur Shumali, Tehsil and District Bhakkar, in favour of Nazu Khan petitioner-vendee, through Mutation No.1202, dated 11-5-1973. Challenging the said sale, two separate suits one by Karam Hussain Khan, predecessor-in-interest of the respondent, and the other by one Fazal Hussain, were field on 3-1-1974 and 13-3-1974, respectively. The petitioner contested the suits. The learned Civil Judge vide judgment and decree, dated 23-4-1976, dismissed both the suits on the point of limitation.
3. Fazal Hussain did not file any appeal against the aforesaid judgment and decree, but Karam Hussain Khan respondent challenged the same. His appeal was accepted by the learned Additional District Judge, vide judgment and decree, dated 26-9-1977.
4. Nazu Khan petitioner filed R.S.A. No.754 of 1977 in the Lahore High Court, which was dismissed by a learned Single Judge, the operative part whereof runs as under:- "As the question of limitation was only vis-a-vis the rival preemptor Fazal Hussain and not with regard to the suit filed by the present respondent, therefore, judgment and decree passed by the Court below undoubtedly on the question of limitation was misconceived and illegal and the appeal field by the respondent was accepted by the Appellate Court.
' In view of the above, I do not find any legal or factual infirmity in the impugned judgment and decree which is upheld. The appeal is accordingly dismissed."
' Hence, this petition.
5. It is contended that conclusions of the Courts below with regard to limitation are erroneous.
6. It is an admitted fact that no objection of limitation was raised by the petitioner in his written statement against the suit filed by Karam Hussain respondent. Accordingly, no issue was framed in that behalf by the learned trial Court. On the other hand it was admitted by the petitioner/ vendee that the land in dispute was purchased by him on 11-5-1973. In this view of the matter, the suit filed by the respondent on 3-1-1974 could not be said to be barred by limitation. Being a settled legal proposition no cavil can be made with the observation of the learned Additional District Judge that the period of limitation was to start from the date of attestation of mutation and not from the date when the respondent entered into possession of the land. The learned High Court has also held the suit to be within, time by giving sound reasons in support thereof.
7. In the above circumstances, there is no substance in the petitions, which is dismissed, and the leave is refused.
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