' The brief facts out of which the present writ petition arises are that the respondents filed a suit for declaration of cancellation of document in the Court of Civil Judge, Lahore. The petitioner being aggrieved filed an application under Order VII, Rule 11, C.P.C., for rejection of the plaint on the ground that respondents have filed suit after considerable delay and is highly time-barred. The plaint also does not disclose any cause of action. The Trial Court dismissed the application of the petitioner vide order dated 1-4-2004. The petitioner being aggrieved filed a revision petition in the Court of learned Additional District Judge Lahore, who dismissed the same vide impugned order dated 15- 6-2004, hence, this Constitutional petition.
2. The learned counsel of the petitioner submits that the land in question was purchased by the father of the petitioner from his brother Iman Din on 12-3-1976. Mutation No,2002 was also sanctioned to this effect on 26-4-1976 by the Revenue Authorities. Late Imam Din did not agitate the matter in his lifetime, who died on 5-10-1989. The father of respondents No,2 to 9 also did not agitate the matter before any Court till his lifetime, who died on 21-6-1999. The respondents filed suit on 21-4-2003, which is highly time-barred and does not disclose any cause of action, therefore, both the Courts below erred in law to dismiss the application of the petitioner. The orders of both the Courts below are result of misconstruing the provisions of law and evidence on record. He further submits that it is the duty and obligation of the Courts below by virtue of section 3 of the Limitation Act to see whether the suit is time barred or not.
3. I have given my anxious consideration to the contentions of the learned counsel of the petitioner and perused the record.
4. The respondents have categorically stated in paragraphs No,5 to 9 that respondents came to know about the said mutation on 19-11-2003. It is settled principle of law that question of limitation is a mixed question of law and facts coupled with the fact that respondents filed declaratory suit relating to inheritance as per law laid down in C.R.No,46 of 1994 dismissed on 9-2-1994 (NLR 1994 Revenue Peshawar 164) and Mst. Fazal Jan v. Roshan Din, etc. (NLR 1993 Revenue S.C. 8). Both the Courts below rightly observed so after proper appreciation of evidence on record and construing the provisions of law. Both the Courts below rightly observed that question of limitation in the given circumstances arising out of the contents of the plaint cannot be decided without recording evidence of the parties. The plaint also prima facie discloses cause of action as is evident from para. 9 of the plaint. Both the Courts below have decided the application of the petitioner in accordance with law. The petitioner failed to point out any provision of law or principle, which was violated by the Courts below, therefore, Constitutional petition is not maintainable as per law laid down by the Honourable Supreme Court in Ali Mir's case (1984 SCM R 433). It is settled principle of law that Constitutional petition qua the concurrent findings of fact of the Courts below is not maintainable as per law laid down by the Honourable Supreme Court in the following judgments:-- ' Khuda Bakhsh v. Muhammad Sharif, and others. 1974 SCM R 279.
' Muhammad Sharif and others v. Muhammad Afzal Sohail and others PLD 1981 SC 246.
' Abdur Rehman Bajwa v. Sultan and others PLD 1981 SC 522.
It is also settled principle of law that this Court has no jurisdiction to substitute its own findings in place of findings of Courts below while exercising powers under Article 199 of the Constitution, as per principle laid down by the Division Bench of this Court and the Honourable Supreme Court in the following judgments:- ' Board of Intermediate and Secondary Education, Lahore through Chairman and another. v.
M.Massadaq Naseem Sindhoo. (PLD 1973 Lahore 600)
' Syed Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner,, Lahore and others (PLD 1964 SC 260)
Even otherwise Constitutional petition jurisdiction is discretionary in character. Keeping in view the contents of the plaint and impugned order I am not inclined to exercise discretion in favour of the petitioner as per law laid down by the Honourable Supreme Court in Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others (PLD 1973 SC 236).
' In view of what has been discussed above, this Constitutional petition is not maintainable and the same is dismissed. The trial Court shall of course decide the matter after recording evidence in accordance with law without being influenced by the observation of the impugned orders and observation of this Court.