Vide the registered sale-deed dated 11.8.1964, the appellants purchased the suit land on 2.10.1965, the respondents filed a suit for possession by pre-emption. According to him the land had in fact been sold for Rs, 1000/- but the amount of Rs, 4000/-, entered in the sale-deed is fictitious. He claimed to be a co-sharer as well as owner of the estate. The suit was contested by the appellants by denying the said allegations. Objection was taken to the correctness of the Court fee. I may note here that objection of limitation was not taken in the written statement which was filed on 8.4.1968.
Issue were framed. Evidence of the parties was recorded. The suit was dismissed by the learned trial Court on 1.10.1966. On appeal by the respondents it was remanded on 20.6.1967. Thereafter it was decreed by the learned trial Court on 18.12.1968. Appeal filed by the respondents was allowed on 28.6.1969 with reference to the objection of Court fee and the suit was dismissed. RSA No, 242/70 was allowed by this Court on 11.4.1995 and the learned District Judge was directed to decide the appeal on merits. On 9.12.1998 learned District Judge, Layyah, dismissed the appeal filed by the appellants.
2. Learned counsel for the appellants contends that admittedly the suit was barred by time and the learned Court of first appeal has committed an error of law while refusing to dismiss the suit when under Section 3 of the Limitation' Act, 1908, it was bound to do so. He relies on the case of Haji Muhammad Shah. vs. Sher Khan and others (PLD 1994 SC 294). Learned counsel for the respondents, on the other hand .supports the impugned judgment and decree of the learned District Judge with reference to the case of Muhammad Ishaq and others versus Shah Muhammad and others (1985 SCM R 799; and Allah Yar Khan versus Mst. Sardar Bibi and others (1986 SCM R 1957).
3. I have gone through the records with the assistance of the learned counsel for the parties. I may note here that these are reconstructed records. Now there is no dispute whatsoever that the suit was filed on 2.10.1965. It has also been noted by me above that objection of limitation is not contained in the written statement. Now during the course of hearing of the first appeal it was duly contended before the Learned District Judge that the suit having been filed on 2.10.1965 i,e, beyond the period of one year from the date of registration of the sale-deed is barred by time. Learned District Judge has found as a fact that the suit was filed on 2.10.1965. Thereafter with reference to the said to judgments being relied upon' by the learned counsel for the respondent he has held that he will not dismiss the suit notwithstanding the fact that it is barred by time:
4. Now Section 3 of the Limitation Act is as follows:-- "Subject to the provisions contained in Sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the First Schedule shall be dismissed, although. limitation has not been set up as a defence".
It will thus be seem that notwithstanding the fact as to whether the opposite party raised an objection or defence of limitation, where the suit is found to have been instituted beyond the period prescribed by First Schedule it shall be dismissed. There is no manner of doubt in my mind that the suit was filed beyond the period of time prescribed in Article 10 of Limitation Act, 1908 read with Section 30 of the Punjab Pre-emption Act 1913 and Section 29 of the Limitation Act, 1908. This is also a finding of the learned District Judge. Now coming to the said judgments in the case of "Allah Yar Khan" and "Muhammad Ishaq and others" relied upon by the learned District Judge. I have examined both the said judgments. Now in the said case of Muhammad Ishaq and others" dismissed the appeal. Now in the said case of, Ishaq and others which again was an appeal against the judgment of this Court in letters patent appeal, leading opinion rendered by Hon'ble Mr. Justice Muhammad Afzal Zullah (as Hon'ble Chief Justice then was) is as follows: "The ratio of the above two decisions is that it would be necessary for the appellate or revisional forum, where the Limitation Act is applicable, to examine under Section 3 of the Limitation Act whereafter the proceedings instituted before itself are within limitation. But it will not be under any legal obligation like the one visualized by Section 3 of the Limitation Act to do so if the plea of Limitation raised before it related to the institution of the original case/suit in the trial forum and/or the institution of any other matter before a lower forum. Thus if a question of limitation is raised before the High Court in connection with the institution of an appeal before itself beyond the period of limitation it will be the duty of the High Court to examine the same notwithstanding the fact that the other party did not raise or having raised, did not press the bar of limitation. But if the argument is that the High Court did not examine the question of limitation relatable to the filing (beyond limitation) of a suit/case before a lower forum then the High Court would not be obliged to examine the same unless it is raised before it because Section 3 of the Limitation Act does not place any such responsibility on the High Court regarding the proceedings of the lower forum-- When exercising its power of review in appellate or other jurisdiction. The same would apply to the discretionary writ jurisdiction. This, however, it has to be pointed out, would not mean that if in the circumstances of such a case the High Court examines the question of limitation regarding the institution the proceedings before a lower forum without the same being raised before it, then it would be committing any illegality--the emphasis being only on the point that is not under a legal duty to do so. If, therefore, it fails to do so when the party concerned did not raise it and the argument is advanced in this Court, that the High Court should have examined it suo motu, as legal duty, it (this Court) would not be obliged to interfere"
Now it will be noted that according to above dictum of the Hon'ble Supreme Court as well lower appellate forum when called upon to examine the question of limitation is found to do so. However, if that question is not raised it is absolved to examine the same. Now in the present case first appeal was heard by Learned District Judge. Question was duly raised. Factual aspects were answered in favour of the appellant still learned District Judge refused to dismiss the suit which he was bound to do under Section 3 of the Limitation Act, 1908.
5. Now Learned District Judge has also observed that the plea was not taken in the written statement or, in the memo of appeal and that it has been taken after a period of 33 years. Nothing turns on the said observation, reason being that the first appeal was still pending when the question was raised and the same having been answered in favour of the appellant the suit was required to be dismissed as provided by the law in mandatory terms.
6. This RSA is accordingly allowed. Both the impugned judgments and decrees passed by the learned Courts below are set aside and the suit filed by the respondents is dismissed. No orders as to costs.
Records be returned.