P L D 1954 Peshawar 96 (PLP)

MUHAMMAD SHAFI, J.‑One Amirullah died long before the enforcement of the Muslim Personal Law (Shariat) Application Act VI of 1935, leaving behind two sons, Faqir and Sharif, the predecessors‑in‑interest of defendants Nos. 1‑5, from one wife, and Umar Khan plaintiff from the other. The defendants on 11th October 1949, put in an application in the Revenue Court at Mardan under section 111 of the Punjab Land Revenue Act, for partition and separate possession of the property left by Amirullah giving one share to each of his sons. On 30th November 1949, Umar Khan instituted a suit for a declaration that he was the owner and in possession of half of the property left by Amirullah and not of only one third. In Para. No. 3 of the plaint he stated that privately the plaintiff had requested the defendants to admit him as the owner and in possession of half of the property left by Amirullah, but the latter had refused to do so since two days. In para. No. 4 the plaintiff averred that the cause of action arose to him on 24th November 1949, from the order of the Revenue E. A. C., who had directed him to establish his right to the property in a Civil Court. On 29th December 1949, the defendants put in a written statement in which they objected to the frame of the suit, and also denied the plaintiff's. claim to half of tie property left by Amirullah. They stated that Amirullah during his lifetime had partitioned the property giving each one 1/3rd share. They denied the contents of Sara. No. 3 but so far as para. No. 4 was concerned all that they stated in reply was " it is legal." It is very difficult to understand what they meant by it, but one thing is perfectly clear that they did deny the contents of this paragraph. The learned trial Court framed the following two issues in the case :‑ (1) Whether the suit does not lie in its present suit ? (2) Whether the plaintiff is entitled to the relief claimed ? The learned trial judge decided both these issues in favour of the plaintiff, and having done so, granted a decree in his favour to the effect that he was the owner of one‑half share in the suit property. The defendants went up on appeal against this order, which was accepted by the learned Senior dub‑Judge Mardan, on the ground that the plaintiff's suit was barred by time. He did not decide the issues raised in the case at all, As a result of his finding on the question of limi tation, he dismissed the plaintiff's suit, but left the parties to bear their own costs throughout. The plaintiff has come up in revision against the above order. The learned Senior Sub‑Judge while deciding the ques tion of limitation observed in the judgment that the cause of action to the plaintiff accrued when for the first time his name appeared in the land records as owner of 1/3rd share in the suit property, and that this was the terminus a quo for computing the period of limitation. He then applied Article 120 of the Limitation Act and held that the plaintiff's suit, having been brought more than six yeas after the said entry was made in the revenue papers, was barred by limitation. He held relying upon A I R 1938 Pesh. p. 28, that every attempt made to change the land records did not amount to fresh invasion of the right the plaintiff and consequently it did not give a fresh cause of action. The learned Senior Sub‑Judge seems to have completely ignored the pleadings of the parties as well as the effect, of the partition proceedings and the order of the Revenue Court on the question of limitation. I am however of the view that the learned Senior Sub‑Judge acted without jurisdiction in going into and disposing of the case on the question of limitation alone. No doubt under section 3 of the Limitation Act, every suit instituted after the period of limitation prescribed therefore, by the Limitation Act has to be dismissed even if limitation has not been set up as a defence yet it does not override the general rule of pro cedure that the Court ordinarily should not raise and decide a question of fact of its own motion. The question of limitation may be one of fact or of law; if former the Court is not bound to go into it unless raised by the parties, and if latter the Court is as a general rule hound to raise and decide it, although not raised by the parties. Applying this principle to the case now before me, the question of limitation involved was a mixed question of law and fact. The lower Appellate Court in order to apply Article 120 of the Limitation Act, had to determine the date from which limitation had to start. He had to come to a definite finding as to whether the plaintiff was in possession of the property in suit or not; in the case of the former lie had to take the partition proceeding initiated by the defendants, and whether it was an invasion on the right of the plaintiff, and gave him a fresh start of limita tion, and. in the case of the latter also there were several questions of fact, which the learned lower appellate Court had to consider before actually throwing out the suit on the question of limitations. So far as I can see, the question of the entry in the revenue records did not arise in the case at all, because the plaintiff's suit was not directed for their correction. It was a simple case in which the plaintiff in the plaint had alleged that the cause of action to him arose on 24th November 1949. This fact was not denied by the defendants. The effect of the non‑denial specifically or by necessary implication was that the defendants under O. 8, R. 5 C. P. C. admitted it as correct. Computing the period of limitation from this date, the suit brought six days later .would prima facie be positively within time. I am; however, of the opinion that the learned lower appellate Court had no jurisdiction to go into the ques tion of limitation at all, and dismiss the plaintiff's suit on that account. I, therefore, accept the revision petition, set aside the judg ment and decree of the lower appellate judge, and remand the case back to him with the direction to decide it according to law. The costs shall follow the event. Orders announced. A. H. Petition accepted.