' SYED HAMID ALI SHAH, J.---Respondents Nos.1 to 21, instituted a suit before learned Civil Judge, Faisalabad, seeking therein the declaration that plaintiffs were real owners of the suit-land to the extent of 2/3rd share and respondents Nos.1 to 10 are the benami owners of the property. The plaintiffs asserted in the plaint, that their predecessor Imam Bakhsh, purchased from his brothers, out of joint property left in India, a part of their share. Land measuring 847 Kanals was allotted in lieu of the land jointly left by plaintiffs' and defendants' predecessor-in-interest, in District Hoshiarpur (India). It was also stated that the petitioners were allotted in excess 282 Kanals, by virtue of order dated 9-2-1965.
2. The suit was resisted, the defendants filed written statement,controverted the assertions of the plaint and raised various preliminary objections including the objection of limitation. Learned trial Court while holding that suit of the plaintiffs, is hopelessly barred by limitation rejected the plaint vide order dated 5-3-2002. The respondents assailed the order dated 5-3-2002 in appeal. The learned lower Appellate Court observed that the trial Court having framed the preliminary issue on the question of limitation, was duty bound to determine the issue of limitation after recording the evidence. The learned lower Appellate Court held that question of limitation being mixed question of law and fact and its determination without recording the evidence is not warranted under law.
Learned Appellate Court accepted the appeal, by impugned judgment and decreed dated 27-4- 2003, remanded the case to the learned trial. Court for decision on question of limitation, after recording evidence of both the parties. Hence this petition.
3. Learned counsel for the petitioners stated that there perusal of the plaint reveals that suit is barred by limitation. The averments in the plaint are sufficient to attract the provisions of rule 11 of Order VII of Code of Civil Procedure. He has referred to the case of Muhammad Hussain and others v. Settlement and Rehabilitation Commissioner and others (1975 SCM R 304) to contend that, to cross the hurdle of limitation, each day's delay has to be explained.
4. The learned counsel for the respondents, on the other hand, supported the impugned judgment and submitted that determination of question of limitation is mixed question of law and fact and it cannot be decided unless evidence is led in this respect. He emphasized that question of fact needs, its determination, through proper evidence and referred to the case of "Muhammad Sharif and others v. Inayat Ullah and others (1996 SCM R 145), in support of this contention.
5. Heard learned counsel for the parties and examined the record.
6. The respondents have asserted in the plaint that petitioners are in possession of suit-land as benamidar. It was stated in para. 7 of the plaint that Ghulam Hussain Shah, OSD/Central Record Office West Pakistan, decided on 9-2-1965 that Fattoo, Nathoo and Imam Bakhsh are owners to the extent of 1/12 in the joint Khata, the claim was verified incorrectly to the extent of 14th share of total Khata which resulted into allotment of land measuring 282 in excess, in favour of defendants Nos.1 and 10. It was further contended in para. 8 of the plaint that Sardar Muhammad son of Nihal Muhammad was appointed attorney, vide power-of-attorney No,118/4, dated 3-6-1964, to pursue the matter before OSD Central Record Office. The attorney failed to inform about the order dated 6-2-1965, therefore, plaintiffs cancelled the power of attorney on 26-2-1967, through deed of cancellation bearing No,574/4. It is evident from the contents of the plaint stated in paras. 7 and 8, that the respondents were aware of the order dated 6-2-1965, prior to the cancellation dated 26- 6-1967, of power-of-attorney.
7. There is no cavil with preposition that the mixed question of fact and law required recording of evidence for determination. The evidence, however, is not required to be recorded in cases where a fact stands proved on the basis of assertions/admissions, made in the pleadings. The plaint reveals, in the case in hand, that plaintiffs knew that suit-land had been allotted to predecessors of the plaintiffs and defendants Nos.1 to 10 on 6-2-1965. They challenged the allotment through the instant suit, which was instituted on 28-8-1997. The law requires each day's delay to be explained, but in the present suit the delay of decades is unexplained. The fact that plaintiffs had the knowledge of order dated 6-2-1965, before 26-6-1967, is admitted by plaintiffs in the plaint. Facts admitted do not require any proof; therefore, allowing parties to lead evidence on admitted question of fact, will be exercise in futility. The suit has not been filed within limitation and plaint was rightly rejected by the learned trial Court.
8. For the foregoing reasons, the revision petition is accepted, impugned order dated 24-7-2003 passed by the learned Additional District Judge, is set aside and the impugned judgment and decree 5-3-2002, passed by the learned counsel is upheld, with no order as to the costs.