J.P. Jain, J.
1. This appeal arises out of a suit instituted by respondent Hari Narayan to enforce his right of pre-emption on the ground that he is a co-sharer in the subject of sale in the Court of Civil Judge, Jaipur City, Jaipur, on 26th March, 1960 The respondent's suit having been decreed by the trial Court on 30th of May, 1964, and confirmed in appeal by the Additional District Judge No. 1, Jaipur City, the defendant Kanhaiya Lal has assailed that decree on the ground that the respondent's suit was time barred. The subject matter of this controversy is covered by issue No. 4 framed by the trial court and it reads as under:
Whether the defendants came to know about the sale deed Ex A/1 first of all on 25-1-60 and thus the suit is within limitation
The facts which are not in dispute are that Mst. Suja sold her part of the property to Kanhaiya Lal by registered sale deed dated 5-12-56 for Rs. 6499/-. The plaintiff Hari Narayan is admittedly co-sharer in the property. According to him he did not know about the sale and as a matter of fact the fact of sale was actively concealed from him, He averred in para No. 7 of the plaint that the cause of action for enforcing his right of pre-emption arose on 5.12.56. December 26, 1956, and January 25, 1960, when he came to know about the sale for the first time. He claimed the suit to be within time under Article 120 and under Section 18 of the Limitation Act It is not again in dispute between the parties that the Indian Limitation Act (Old) is applicable to the facts of the case as the sale was effected in 1956 much before the new Act came into force. In para 6 of the plaint it was contended by the plaintiff that the sale was effected surreptitiously and he fact of sale was actively concealed from his knowledge, and inspite of the fact that there was a litigation going on between him and Mst. Suja, the vendee, was not brought on record. This part of the suit was denied by the defendant vendee as well as by Mst. Suja, who was second defendant in the suit. According to them the property under sale was offered to all the co-sharers but since they were not prepared to purchase it, it was sold out to Kanhaiya Lal. It was further asserted that the factum of sale was not concealed from the plaintiff. Other facts where there is not dispute are that on a part of the property sold the vendee was in possession as a tenant for nearly 35 years, and the remaining portion was in possession of Mst. Suja herself but she became the tenant of the vendee after the sale.
2. The learned trial Judge accepted the version of the plaintiff that he came to know of the sale deed for the first time on 25-1-60 He did not, however, discuss the applicability of Article 10 to the case. The learned trial Judge while recording the finding that the defendants have certainly withheld the information regarding this transaction from the plaintiff, applied Article 120 of the Limitation Art to the case and held the suit within time In appeal the learned Additional District Judge referred to Article 10 of the Indian Limitation Act. He held that since the property was partly in possession of the vendee himself no physical possession of whole of the property sold was taken under the sale. He does not appear to have discussed the second part of column (3) of Article 10. He referred to Sheonandan Prasad Ganesh Prasad v. Kanhaiyalal Ishwar Prasad AIR 1956 Nag 243 and abruptly came to the conclusion that the trial Judge was right in invoking Article 120 in this case. He also incidentally observed that the seller has been guilty of active concealment of the sale with an intention to deceive the pre-emptor But it must be noticed here he did not apply Section 18 & held the suit within time only under Article 120 of the Act. On behalf of the appellant it has been argued that Article 10 governs suits of pre-emption of all kinds without any exception According to the submission the learned courts below were not justified in applying Article 120 of the Limitation Act. On the other hand Mr. Tikku learned Counsel appearing on behalf of the respondent submitted that Article 10 is not applicable and it is only residuary Article 120 which is applicable to the facts of the case. He also canvassed that the two courts below have found that there has been and active concealment of the sale by the vendor and the vendee and as such Section, 10 of the Indian Limitation Act is dearly it attracted.
3. I have considered the rival contentions with care. As regards the contention of Mr. Tikku that therehas been active concealment or fraud played upon the pre-emptor, it must be stated here that on the perusal of the pleadings I find that no particulars of fraud have been averred by the plaintiff. That apart, he has not been able to satisfy me how it was incumbent upon the vendor or the vendee to inform about the sate to all the persons including the person who claimed himself to be pre-emptor, In my opinion, a person desiring to to invoke the aid of Section 18 is required to establish not only that there was a fraud by the defendant but also that by means of such fraud he was kept from the knowledge of his right to sue or apply or of the title on which such right was founded Under Section 18, the limitation is postponed on account of some fraud. Limitation begins to run from the time when the plaintiff had discovered the fraud or could discover or with reasonable deligence has discovered it. I have noticed above that the particulars of fraud were not alleged in the plaint. Then it was not a subject matter of issue No. 4 as framed by the trial Court. Again I am strongly of the opinion that if the parties are not under any duty to disclcse facts to the other party 9 mere concealment will not amount to fraud Where there is, however, such a duty, a concealment may amount to fraud. In this view of the matter the mere fact that the vendor and the vendee did not inform the plaintiff about the transaction of sale, case of fraud cannot be maintained. The learned courts below were not right to have recorded a finding that there was an active concealment of sale on the part of the vendor or the vendee, obviously for two reasons; (1) that there was no such pleading as required by Civil P.C. ; (2) no issue was framed in that regard. Again it is also note-worthy that inspite of that finding the courts below did not discuss the applicability of Section 18 and did not actually apply the provisions of that section. They held that the suit is wihin time under Article 120 of the Limitation Act, Article 120 provides 6 years limitation from the time the right to sue accrues The courts below did not even discuss as to when the right to sue accrued. In their opinion the right to sue accrued when the plaintiff had information about the sale on 25-1-60. But this is not very important as the suit is within six years in case Article 120 applies even from the date of the sale. The sale took place, as stated above, on 5-12-56. The contention of Mr. Tikku that he is entitled to invoke the said Section 18 Limitation Act, has no substance.
4. The question now that arises for my determination is whether Article 10 applies to the facts of the present case. There is no manner of doubt that Article 10 provides limitation for suits relating to pre-emotion and Article 120 is only a residuary article It can only be made applicable if it is found that Article 10 has no application to the facts of the present case, Article 10 reads as under:
10.To enforce a right of pre-emption whether the right is founded on law or general usage, or on special contract.
When the purchaser takes, under the sale sought to be impeached, physical possession of the whole of the property sold or, where the subject of the sale does not admit of physical possession, when the instrument of sale is registered.
5. There is no dispute that the respondents suit is a suit to enforce a right of pre-emption and the limitation provided under this article is. one year. Column 3 provides terminus-a-quo and there are two parts of the column 3 One is when the purchaser takes under the sale sought to be impeached, physical possession of the whole of the property. It is not in controversy that the vendee was in possession on a part of the property as a tenant for nearly 35 years. After the sale the ownership was transferred He became the owner of the part of the property of which he was in possession and the part which was in possession of Mst. Suja, he got a rentnote executed from her Learned Counsel do not join any controversy on this point so far this part of the clause is concerned because no physical possession of the whole of the property sold was taken under the sale.
6. The second part of column 3 provides terminus a quo where the subject matter of sale does not admit of physical possession when the instrument of sale is registered. There is serious controversy on this part of the case. According to Mr. Tikku the subject of the sale is a tangible property and it did admit of physical possession and therefore this part of column does not apply. On the contrary learned Counsel appearing for the appellant submitted that the part of the property which has been in possession of the vendee himself as a tenant, was not capable of being possessed. His submission is that the subject of the sale on the facts of this case did not admit of physical possession and, therefore, the limitation would run from the date the instrument of sale was registered. He has placed reliance on a decision Sukhoandan Singh and Ors. v. Jamiat Singh and Ors. : 3SCR784 . In that case some land was sold and in the instrument of sale it was stated that the possession was delivered but in fact on part of the property the tenants were in possession Similar question as to the applicability of Article 10 of second schedule of the Indian Limitation Act arose in that case. Dua, J., who spoke for the Court observed as follows:
The next point relates to the plea of limitation Article 10 of the second schedule of the Indian Limitation Act provides a period of one year to enforce a light of pre-emption whether founded on law or general usage or on special contract, the Terminus a quo being the date when the purchaser takes under he sale sought to be pre-empted, physical possession of the whole of the property sold or where the subject of the sale does not admit of physical possession, the date when the instrument of sale is registered. Section 30 of the Punjab Pre-emotion Act applies only when the case does not fall within Article 10. On the finding of the District Judge and of the High Court it is obvious that physical possession of the whole of the property sold was not taken by the vendees, on the date of sale. Therefore, the first part of article does not apply. Acceding to the appellants' counsel the land sold does admit of physical possession and if a part of the land has been taken into possession by the vendees then Article 10 would be inapplicable and Section 30 of the Punjab Pre-emption Act would he attracted In that case the terminus a quo according to Shri Gosain would be the date on which the vendees took under the sale physical possession of any part of such land. The argument in our view is misconceived. The second part of Article 10, in our opinion, covers cases where the subject of the sale, which means the whole of the property sold, does not admit of physical possession and that would be so when a part of the land is in the possession of the tenants The argument that use of the expression 'subject of the sale' suggests that this article would apply only if the entire and not only a part of the land is in the possession of the tenants is not acceptable.
7. Mr. Tikku strenuously argued that the facts of the Supreme Court case are distinguishable from the facts of the present case. The distinction sought to be made is that the possession in the Supreme Court case was of the tenant other than the vendees where as in the present case the vendee himself was a tenant. He has invited my specific attention to the following part of their Lordships observations quoted above:
The second part of Article 10 in our opinion, covers cases where the subject of the sale which means the whole of the property told, does not admit of physical possession and that would be so when a part of the land is in possession of the tenant.
He has contended that in that case the possession was of the tenants who were not the vendees themselves. In my opinion that would make no difference, whether the possession is of the vendee as a tenant or of a stranger as a tenant. Their Lordships clearly decided that where the part of the land is in possession of the tenant it does not admit of physical possession. Their Lordships also discussed the meaning of word 'physical possession,' by referring to the earlier cases. I do not therefore hesitate to hold that the second part of the Article 10 column 3 applies to the facts of the case. The sale deed was registered and as such the date of registration provides terminus a quo to the plaintiff. The suit has not been filed within one year from the date the sale deed was registered. In this view of the matter I am unable to sustain the finding of the learned courts below that the suit is within time and Article 120 applies to the case. The question of applicability of Article 120 does not arise once it is found that Article 10 is applicable. I, therefore, hold that the respondent's suit for for preemption is not within time and it must be dismissed as time barred.
8. It may, however, be made clear that the plaintiff in this suit also sought a declaration that Mst. Suja has no right of joint ownership in the 'Surang' and the 'pol' in the disputed property. This part of the decree has not been assailed by the appellant. Barring this part of the decree, rest of the decree relating to pre-emption is set aside.
9. In the result the appeal is allowed as indicated above. In the circumstances of the case parties will bear their own costs through out.
10. The respondent plaintiff had deposited the purchase money. It will be refunded to him. The appellant has also deposited mesne profits under the interim order of this Court dated 22-10-70 and 18-2-71, this amount will be refunded to the appellant.
11. Learned Counsel for the respondent prays for leave to appeal to the Division Bench. I have decided this case on the basis of Dictum laid down by the Supreme Court. I do not therefore certify it to be a fit case for appeal to Division Bench. Leave is refused.