Agricultural land measuring 160 kanals 17 marlas situated in village Darakki, Tehsil Tank, District D.I.Khan was purchased in auction by Muhammad Noor from the District Council, D.I.Khan. He sold it to Haji Amanullah Khan respondent herein for Rs.14,900 through Mutation No.907 dated 12-12-1980.
It appears that this mutation evidencing the sale transaction in favour of the answering respondent was cancelled on 5-3-1981 by the Assistant Commissioner, Tank in exercise of powers as Collector. Istan Muhammad petitioner herein, filed a suit for possession of the aforesaid land by pre-emption on 11-3-1982, claiming the right of pre-emption to be superior on the ground that he was co-sharer in and owned land contiguous to the land in dispute while the vendee- respondentas stranger. The suit was resisted by both the vendee-respondent and the vendor who pleaded, inter alia that the petitioner-pre-emptor was devoid of cause of action and that the suit was time barred. The parties were put to trial on the following issued:-
(1) Whether the plaintiff has got a cause of action ? OPP
(2) Whether the suit is in time ? OPP
(3) Whether the suit property is exempt from pre-emption.
(4) Whether the suit is not maintainable for partial pre-emption ? OPP.
(5) Whether the plaintiff has got a superior right of pre-emption ? OPP
(6) What is the market value of the suit property ? '
(7) Whether Mutation No.906 has got any effect on the present suit ? OPD
(8) Relief.
2. After recording the parties' evidence, the learned trial Court vide its judgment dated 26-11-1986, dismissed the suit of the plaintiff-petitioner on its findings on issues Nos.1 and 2.
3. Feeling aggrieved, the pre-emptor preferred an appeal which was dismissed by the learned District Judge, D.I.Khan on 15-10-1987.
4. The findings of the learned lower Courts on the question of limitation have been challenged by way of this petition in revision.
5. On the point of limitation, it has been vehemently argued on behalf of the petitioner that although the mutation in respect of the suit land was attested on 12-12-1980 but it was fictitiously cancelled on 5-3-81, and, therefore, the cause of action accrued to the petitioner on the last mentioned date.
6. As against this the learned counsel appearing on behalf of the vendee-- respondent contended that the sale was completed on 12-12-1980, when the mutation was attested and since entire sale price had not been paid, therefore, on appeal to the Collector, the mutation was cancelled on 5-3-
81. The learned counsel thus submitted that even if it is assumed for a while that there was a sale of the suit land, the cause of action had prima facie accrued to the petitioner from 12-12-1980, and not from the date of cancellation thereof. He invited my attention to subsection of section 31 of the N.-W.F.P. Pre-emption Act, 1950 which prescribes two periods of limitation for a suit for pre-emption, one year from the date of attestation of the mutation or where property is capable of physical possession, one year from the date of physical possession whichever is earlier.
7. When the learned counsel for the petitioner was confronted with this position he turned round and urged that the cancellation of mutation was not only fictitious but was also fraudulent. I have perused the pleadings contained in the plaint. Para 3 of the plaint only recites that the petitioner is continuing in the possession of the land; that the entire proceedings have been conducted without his knowledge and that he has not been served with any notice under the Pre-emption Act. This recital does not contain any allegation of fraud. It is settled law that where fraud is the basis of the action or defence, as in the case in hand, not only its particulars have to be furnished but the facts stated should clearly spell out a case of fraud. The case set up in the plaint does not disclose any such case of fraud. To my mind the suit from the outset was not properly framed. If the petitioner's case was that the cancellation of the impugned sale transaction evidenced by Mutation No.907 in dispute was fictitious or fraudulent he should have first sought a declaration to that effect and then ought to have claimed a superior right of pre-emption. The dilemma of the petitioner was that if he had sought such a declaration then he would have to file the suit within a year of the attestation of the mutation dated 12-12-1980. In Hussain Bakhsh Khan v. Hussain Bakhsh PLD 1961 (W.P) Pesh.33 late Abdul Hamid, J. Observed as under:- "Section 31 of the N.-W.F.P. Pre-emption Act prescribes two periods of limitation for a suit for pre- emption, one year from the date of attestation of the mutation or, where property is capable of physical possession, one year from the date of physical possession, whichever is earlier."
8. The two Courts below have concurrently found that the petitioner has not been able to show his physical possession over the suit land before the attestation of mutation, therefore, the suit should have been brought on or before 11-12-1981. The concurrent finding of the two Courts below that the suit brought on 11-3-1982 is hopelessly barred by time is, therefore, unexceptionable. That finding has foundation in evidence. In view of that concurrent finding, this petition cannot be entertained and is, therefore, dismissed with costs.