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 and 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. 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.
(3.) 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. One year 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.;