P L D 2000 Lahore 299 (PLP)

Ghulam Muhammad and others v. Malik Abdul Qadir Khan and others PLD 1983 SC 68 and Manzoor Khan v. Ch. Muhammad Malik and others 1991 CLC Note 370 at p.379 rel. Syed Zamir Hussain for Appellant. Qazi Mushab‑ul‑Hasan for Respondent. Date of hearing: 23rd November, 1999. This is an appeal against judgment dated 10‑5‑1980 of the learned Additional District Judge, Gujrat whereby he affirmed the judgment of the learned trial Court and dismissed the appeal filed by the appellant. It arises in the following circumstances.

2. The suit land was purchased by the appellant from Muhammad Hashim and Lal Khan through registered sale‑deed dated 14‑4‑1975 for a sum of Rs.2,

000. A suit for pre‑emption was filed by the respondent being relation and collateral of the vendors. The suit was resisted by the petitioner denying the superior pre‑emptive right of the respondent/plaintiff as also that the suit was time‑barred. The learned trial Court framed issues, whereafter both the parties had the opportunity to produce evidence in support of their respective pleas. On consideration of the evidence so brought on record the learned trial Court decreed the suit on its findings that the respondent/plaintiff was son of Lal vendor and nephew of Hashim vendor and thus, had superior right of pre‑emption. On issue No.l the finding was that the suit was within limitation as there was no satisfactory evidence produced by the appellant/defendant in support of their assertion. An appeal was filed by the appellant which was dismissed by the First Appellate Court on 10‑5‑1980. Finding on Issue No.l which was as to the limitation were conceded before the Appellate Court.

3. In this second appeal only findings on Issue No.1 have been challenged. It is contended by the learned counsel that the appellant as per the contents of the sale‑deed Exh.D4 was in possession of the suit land 9 months prior to the sale‑deed dated 14‑4‑1975, therefore, suit filed on 31‑7‑1975 was time‑barred. It is contended that the learned trial Court erred in fact and law in recording the findings that the suit was within limitation. It is contended that the concession at the appellate stage on the issue of limitation does not estop the appellant to challenge the same before this Court. In support of this contention she has placed reliance on Niaz Ahmad and others v. Mian Abdul Rehman and others PLD 1961 (W.P.) BJ 1 and Nazar Muhammad and another v. Mst. Shahzada Begum and another PLD 1974 SC 22 and Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153.

4. Contrarily the learned counsel for the respondent contends that once the issue had been abandoned and conceded before the Appellate Court it could not be reagitated in second appeal. It is contended that question of limitation was a question of fact and in the facts and circumstances of this case the learned trial Court had rightly recorded the findings that the suit was not barred by limitation.

5. In order to determine whether the findings of the learned trial Court on Issue No.l were correct and supported by ‑the evidence on record, reference to the evidence on record and its appreciation is required. On appreciation of the evidence the learned trial Court returned the findings that the suit was within limitation. Before the learned Appellate Court the said issue was not pressed and was rather conceded, as a result whereof, the learned Appellate Court had no occasion to record its findings and conclusion. This Court cannot in second appeal re‑appreciate the evidence nor come to a different conclusion particularly when the view of the learned First Appellate Court is not before it on the question of limitation. The reliance of the learned counsel on Hakim Muhammad Buta and another v. Habib Ahmed and others (supra) is not acted in the facts and circumstance of the case. In the said case the rule laid down was that "where the question of limitation is not a mixed question of law and fact or where limitation is apparent on the face of the record, a waiver by the parties would not relieve the Court itself of its duty under section 3 of the Limitation Act and a waiver by the Court of the question of limitation is not contemplated".

6. Since in the present case no findings can be recorded as to the question of limitation without adverting to the evidence on record, it is not a pure question of law and cannot be permitted to be agitated when consciously the findings recorded by the learned trial Court were conceded before the First Appellate Court. In Ghulam Muhammad and others v. Malik Abdul Qadir Khan and others PLD 1983 SC 68 it was observed that the Appellate Court was obliged to consider whether the appeal before it was within limitation but it was not bound to do so "if the plea of limitation related to the institution of the suit/.proceedings before the trial Court". In Manzoor Khan v. Ch. Muhammad Malik and others 1991 CLC Note 370 at p.379 it was observed that the appellant who had abandoned the plea of limitation before the First Appellate Court could not be allowed to reagitate the same in the second appeal or the L.P.A.

7. Since the findings on other issues were not agitated and the issue of limitation cannot be re‑opened the judgment of the two Courts below do not warrant interference in the second appeal. As a result of the above this appeal is dismissed. No order as to costs. Q.M.H./M.A.K./B‑1/L Appeal dismissed.