JUDGMENT : AIKMAN, J. 1. This appeal arises out of a suit brought by the plaintiff, who is appellant here, to enforce a tight of pre-emption. On the 11th September, 1901, one Ganga Prasad executed in favour of the respondent Madhuri Prasad a document which purported to be a deed of gift of the property in suit. When application was made to the Revenue Court for mutation of names, Ganga Prasad objected on the ground that he had not received the balance of the consideration for the property. The Assistant Collector refused the application, and an appeal by Madhuri Prasad was dismissed by the Collector. Thereupon Madhuri Prasad filed a suit in the Civil Court for a declaration that the transaction was a gift and for possession of the property, but in his plaint he expressed his willingness to pay the sum of Rs. 105, the alleged balance of the consideration, should it be found that the transaction was really a sale and not a gift. On the 12th of December, 1902, a decree Was passed by consent whereby the deed of gift was declared to be lawful (jaiz), and it was ordered that Madhuri Prasad was to get possession of the property within four days, the parties paying their own costs. 2. On the 5th February, 1903, the plaintiff brought the suit out of which this appeal arises. In his plaint he alleged that the defendants, Ganga Prasad and Madhuri Prasad, had fraudulently and in concert got a deed of gift executed instead of a sale-deed in order to defeat the right of the plaintiff as pre-emptor. The plaintiff further stated that the fraud was discovered on the 14th December, 1892, on which date he tendered to the defendants the sum of Rs. 200 as the price of the property and claimed it by right of pre-emption, but this offer was refused. Ganga Prasad did not defend the suit. In his written statement Madhuri Prasad pleaded that no sale-deed had been executed in respect of the property in dispute, but that it was a deed of gift; he denied that any deception had been practiced. The Court below concurred in finding that the deed was in reality a sale-deed and was fraudulently executed as a deed of gift to defeat the plaintiff's right of pre-emption. The Court of first instance gave the plaintiff a decree. The Court below concurred in finding that the deed was in reality a sale-deed and was fraudulently executed as a deed of gift to defeat the plaintiff's right of pre-emption. The Court of first instance gave the plaintiff a decree. In appeal Madhuri Prasad impugned the finding of the Court of first instance as to the transaction being one of sale, and asserted that the deed was a deed of gift; he also pleaded ‘that the suit was barred, and that if section 18 of the Limitation Act were considered applicable to the case, the plaintiff had not proved that he acquired knowledge of the fraud on the 14th December, 1902. The learned Subordinate Judge, whilst holding that the defendants had committed a fraud on the plaintiff, came to the conclusion that the suit was barred by limitation. 3. It does not appear whether the property in dispute admitted of physical possession. If it did, the suit was clearly within time, for it is evident that on the date of the compromise decree, i.e. the 12th of December, 1902, Madhuri Prasad had not got possession of the property. If the property did not admit of physical possession, the question arises whether the suit is barred by the second provision in the third column of article 10 of the second schedule of the Limitation Act, which fixes the time from which limitation begins to run as the date “when the instrument of sale is registered.” In my opinion this refers to an instrument which is, not only in reality, but in terms, an instrument of sale. The instrument in the present case was certainly on the face of it not an instrument of sale, I am of opinion, therefore, that the second provision in the article is not applicable to the case, and would hold that if this suit was not in time counting from the date from which possession of the property was taken, it was in time within article 120 of the second schedule. I would further point out that the learned Subordinate Judge has treated the case as if the onus lay upon the plaintiff to show that his suit was within time. I think in this he was mistaken. I would further point out that the learned Subordinate Judge has treated the case as if the onus lay upon the plaintiff to show that his suit was within time. I think in this he was mistaken. In the case Rahimbhoy Habibhoy v. Charles Agnew Turner, [1892] I.L.R., 17 Bom., 341, at p. 347 the judgment of the Privy Council says:— ” Their Lordships consider that when a man has committed a fraud and has got property thereby, it is for him to show that the person injured by this fraud and suing to recover the property has had clear and definite knowledge of those facts which constitute the fraud at a time which is too remote to allow him to bring the suit.” It was for the defendants, therefore, in the present case to show affirmatively that the plaintiff's suit was too late. The learned vakil for the respondent has not been able to refer me to any evidence of clear and definite knowledge” on the plaintiff's part of the fraud perpetrated upon him. In fact, looking to the case, set up by the defendants and all along maintained by them, namely, that the transaction was one of gift and not of sale, it would have been surprising had any such evidence been forthcoming. For the above reasons I allow the appeal with costs and, setting aside the decree of the lower appellate Court with costs, I restore that of the Court of first instance.