Machine Khan filed suit for possession of land measuring 12-2/3 Marlas comprising Khasra Nos. 977 and 978 situated, at Ghazi Khanay, Tehsil and District Buner. The said suit was resisted by the respondent by filing written statement. The learned trial Court after framing issues, on the application filed by the respondent/defendant dismissed the suit vide judgment and decree, dated 16-12-2000. Feeling aggrieved of the said judgment and decree the petitioner tiled appeal in the Court of learned District Judge/Zilla Qazi, Buner at Daggar, which was also dismissed vide judgment and decree, dated 16-4-2001. Being not contended with the judgments and decrees of the Courts below the petitioner has filed the revision petition in hand.
2. Mr. Muzammil Shah Khattak, the learned counsel for the petitioner argued that the respondent had in fact kept the factum of sale secret from the petitioner. Although the property was purchased through sale-deed No. 518, dated 11-12-1999 registered in the office of Sub-Registrar, Buner, but in the mutation, not only the date of registration of sale-deed was wrongly mentioned as 18-12-1999, but the place of its registration was mentioned as Daggar instead of Buner. This all was done to defraud the petitioner.
3. It was also argued that the mutation was attested on 27-4-2000 and the petitioner got the knowledge of the said mutation on 12-6-2000. He immediately made jumping demand and thereafter sent notice of Talb-e-Ishhad on 17-6-2000 and filed a suit which was in time. Since the sale of the property was kept fraudulently secret from the petitioner, therefore, under section 18 of, the Limitation Act, the limitation would start from the date the petitioner came to know about the sale in question.
4. It was also argued that no notice of sale was given either by the official of the Revenue Department under the law or by the vendor as per Riwaj of the area. Reliance was placed on Mian Asif Islam v. Mian Muhammad Asif and others (PLD 2001 SC 499).
5. On the other hand Mr. Khalid Khan, the learned counsel for the respondent argued that the period of limitation when the sale was effected through registered sale-deed was to be reckoned from the date when the sale-deed was registered as contemplated in section 32 of the N.-W.F.P.
Pre-emption Act, 1987. Reliance in this regard was placed on Maulana Noorul Haq v. Ibrahim Khalil (2000 SCM R 1305).
6. It was also argued that since the property has been purchased on the basis of registered sale- deed, therefore, there was no need of any mutation also, however, if any mutation was effected the same cannot be termed as fraudulent because the limitation as mentioned above, would start from registration of the sale-deed, therefore, no fraud was ever committed. The judgments and decrees of the Courts below were based on proper appreciation of law, hence need no interference.
7. I have heard the learned counsel for the parties and perused the record.
8. The question that needs determination in this case is as to whether the period of limitation for suit to enforce right of pre-emption arising from a registered sale --deed is to be computed from the date of the registration of the said deed or from the knowledge of the pre-emptor. This proposition came up for hearing before the august Supreme Court of Pakistan in Maulana Noorul Haq v. Ibrahim Khalil (2000 SCM R 1305), wherein it was held:--- "The next point for determination relates to the date from which the period of limitation for a suit to enforce a right of pre-emption arising from a registered sale-deed is to be computed. The explicit and mandatory provisions of section 31 of the Act leave no room for doubt that in case of a sale effected through a registered sale-deed the period of one hundred and twenty days shall be computed from the date of registration of the sale-deed: The contention that if the Registrar fails to issue public notice envisaged by the mandatory provisions of section 32 of the Act the period of limitation is to be computed from the date of knowledge by the pre-- emptor is misconceived.
Such a provision is neither contained in section 31 of the Act nor can be read into it in view of settled law that Court cannot supply ' casus omissus'. A comparative study of sections 31 and 32 of the Act would make it manifest that the provisions with regard to issuance of public notice by the Registrar contained in section 32 had no nexus with the period of limitation prescribed by section 32 for tiling a pre-emption suit in respect of sale transaction effected through a registered sale-deed and is meant to provide an extra source of knowledge' for making ' Talb-i-Mowathibat' and an alternate time frame for making ' Talb-e-Ishhad' in accordance with subsection (3) of section 13 of the Act. "
9. The above-quoted dictum of the august Supreme Court of Pakistan makes it abundantly clear that the period of limitation for suit to enforce a right of pre-emption arising from a registered sale- deed shall be computed from the date, the sale was effected and time of 120 days shall be computed from the date of Registration of sale-deed and not from the knowledge of the pre- emptor. In the case in hand admittedly the suit property was purchased by respondent through sale-deed No.518 registered on 11-12-1999 in-the office of Sub-Registrar, Daggar, but the suit in hand was filed on 28-6-2000 i.e. Much after the period of limitation i.e. 120 days lapsed.
10. The argument of the learned counsel for the petitioner that since the registration of sale-deed was fraudulently kept secret from the petitioner, therefore, under section 18 of the Registration Act read'with Order 7, rule 6, C.P.C. The petitioner was entitled for exemption has no force at all. The sale-deed No.518 was registered on 11-12-1999 in the office of Sub-Registrar, Daggar. No fraud whatsoever was played by respondent in purchasing the property. So far as the Mutation No. 1330 attested on 27-4-2000 and wrong mentioning of date and place of Registration in the suit mutation is concerned, the respondent cannot be blamed for the same. There appears to be a bona fide mistake of Patwari Halqa in mentioning wrong date and place of registration, no fraud whatsoever has been committed by the respondent.
11. Even otherwise it is by now settled law that the plea of fraud is required to be taken in clear words i.e. The plea of fraud be specifically pleaded by a party who alleges that fraud has been committed with/upon him but the` perusal of the plaint shows that the petitioner/plaintiff has no where taken the plea of fraud in the plaint, therefore, they cannot be allowed to take up the plea of fraud for the first time at the revisional stage The judgment PLD 2001 SC 499 cited by the learned counsel for the petitioner is not helpful to him in this regard.
12. Since the suit filed by the petitioner/plaintiff was hopelessly barred by time, the learned trial Court as well as Appellate Court while properly appreciating the legal position have rightly dismissed the suit as well as appeal tiled by the petitioner.
I have not been able to find out any illegality or material irregularity or any jurisdictional error or defect warranting interference in the concurrent findings of facts recorded by the Courts of competent jurisdiction. Resultantly, the revision petition is dismissed with no orders as to costs.