MIAN SAQIB NISAR, J.--- The suit filed by Mst. Salamat Bibi for declaration, challenging the sale dated 21-12-1974 in favour of respondents Nos.2 and 3, was dismissed by the learned trial Court, vide judgment and decree dated 14-12-1987. Her appeal has also failed on 15-6-1989.
2. Briefly stated the facts of the case are, that Abdul Ghafoor died in India, where he had some agricultural land; his widow Mst. Khooban migrated to Pakistan and filed a claim on account of the above and as per RL-II, Khata No.113, land measuring 90 Kanals and 1 Marla was allotted to her in R- 10!67 or 67/10 in Chak No.10/67-R Gangi Bar, Tehsil Khanewal; Mst. Khooban through two Mutations Nos.59 and 60, both dated 16-10-1968, exchanged the aforesaid land with 44 Kanals and 8 Marlas of the land belonging to Abdul Latif son of Abdul Ghafoor, this was through Mutation No.59, and 40 Kanals and 4 Marlas with Mst. Maseeti etc., vide Mutation No.60. Mst. Khooban died on 5-2-1976 and before her death, through Mutation No.145 dated 21-12-1974, she had transferred the entire land measuring 84 Kanals and 12 Marlas, which she had got in exchange, in favour of Yameen respondent No.1 through oral sale mutation. Mst. Salamat Bibi on 22-5-1979, filed a suit for declaration challenging the aforesaid sale on the ground that she is the maternal niece of Abdul Ghafoor, who was the last male owner of and thus, was entitled to inherit his estate, therefore, any sale made by Mst. Khooban, who was only the limited owner under the customary law, is illegal and unlawful against her rights of inheritance. The suit was pending when Yameen through sale-deed dated 10-11-1981, sold the suit-land in favour of respondents Nos.2 and 3; this was also challenged by amendment in the plaint. However, after framing of the issues and concluding the trial, the learned Civil Judge, though held that the land got allotted by Mst. Khooban was as limited owner, but dismissed the suit holding that it is barred by time according to section 3 of the Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975, which came into force on 31- 3-1975 and the suit should have been filed within one year of the enforcement of said law, whereas in this case it is about four years thereafter. No other issue was decided. Aggrieved of the above, Mst. Salamat Bibi filed an appeal, which has been dismissed on the same ground of limitation and the judgment and decree of the learned trial Court has been upheld, hence this appeal.
3. Learned counsel for the appellant contends, that the two Courts below have wrongly decided the issue of limitation, because for the purpose of inheriting the properly; no question of limitation arises; the moment limited ownership of Mst. Khooban terminated in the year 1962, the land reverted back to the original male owner namely Abdul Ghafoor and the appellant being one of the legal heirs of the deceased, had become the co-owner of the property and resultantly, Mst.
Khooban had no authority in law to make the sale in favour of respondent No.1, in the year 1974. In support of his contentions, learned counsel has relied upon Sher Muhammad v. The Additional Rehabilitation Commissioner, Multan and 7 others PLD 1968 Lah. 234; Additional Settlement Commissioner (Land), Sargodha v. Muhammad Shafi and others PLD 1971 SC 791; Muhammad Yaqub v. Member, Board of' Revenue, Lahore and 3 others PLD 1973 SC 304 and Muhammad Asadullah Shaikh v. Government of Pakistan and others 2003 SCMR 392.
It is further submitted that the respondents in fact concealed the factum of sale and had been paying due share of the appellant from the property and, therefore, the period of limitation, when the appellant fraudulently kept in dark, shall be excluded from the period of limitation. Lastly by relying upon Saifur Rehman's and another v. Sher Muhammad and others 2002 SCMR 1000, it is submitted that to claim the possession of a property, to which a person is entitled under Shariat, which otherwise is held by the customary limited owner, the limitation is 12 years, therefore, the suit brought in 1966 challenging the sale in favour of the respondents of the year 1974, shall be within time.
4. Conversely, the learned counsel for the respondents had drawn support from section 3 of the Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975, to argue that this law has restricted period of limitation to one year for the purpose of challenging the alienations, which have been made by the customary owner in violation of the rights of the successor of the deceased male owner and therefore, the suit should have been brought within a period of one year. In this regard, he has placed reliance upon the judgment reported as Hashmat Ali and another v. Mst. Jantan and 6 others 1993 SCMR 950.
5. I have heard the learned counsel for the parties and find, that the special law mentioned above, has conferred maximum period of one year for challenging the sales, which otherwise, were not earlier challenged by the successor of the last male owner. This period of limitation shall A commence on the enforcement of law and the present suit admittedly was brought after one year and, therefore, it has been rightly held by the Courts below being barred by limitation. The judgments cited by the learned counsel for the appellant, are on general provisions about the law of limitation vis-a-vis- the law of inheritance and in these' judgments, section 3 (ibid) has not been discussed at all. Same is the position vis-a-vis the dictum of the Honourable Supreme Court i.e. 2002 SCMR 1000. The law, which squarely applies to the case in hand, is reported in 1993 SCMR 950 and both the Courts have decided the matter in accordance therewith.
6. As regards the plea that the appellant was fraudulently kept in the dark about the sale and, therefore, the benefit of section 18 of the Limitation Act is available, suffice it to say that in this behalf, no case within the purview of above provision has been set out in the plaint as required by Order VII, rule 6, C.P.C. And the particulars of the fraud are conspicuously missing. This has also not been an issue before the Court below, therefore, the appellant cannot be allowed to raise a new plea at this stage.