' MIAN HAMID FAROOQ, J.---The petitioners, through the filing of the present revision petition, have called in question judgment and decree dated 10-4-1990, whereby the learned Additional District Judge, accepted the appeal filed by the predecessor in interest of the respondents dismissed petitioners' suit and reversed the judgment and decree dated 29-5-1989, passed by the learned trial Court, through which he decreed the suit for declaration with permanent injunction, filed by the predecessor in interest of the petitioners.
2. Briefly stated the facts relevant for the decision of the present revision petition are that one Hasham, the predecessor in interest of the petitioners, filed a suit for declaration with permanent injunction, against the predecessor in interest of the respondents, to the effect that plaintiffs had become absolute owners of the land in dispute by prescription; that the respondents should not put any hindrance in their way to get the Revenue Record amended and the respondents should not alienate the land in question in any manner. The suit was contested by the respondents by way of filing the written statement and the learned trial Court framed as many as five issues. The learned Civil Judge after recording the evidence of the parties, proceeded to decree the suit, favouring the petitioners, who, in the meantime, were impleaded as plaintiffs in place of Hasham, vide judgment and decree dated 29-5-1989.The respondents filed an appeal and the learned Additional District Judge accepted their appeal, reversed the judgment and decree of the learned trial Court and dismissed the suit of the petitioners, vide its judgment and decree dated 10-4-1990, hence the present revision petition.
3. Learned counsel for the petitioners has contended that the plea qua section 20(2) of Limitation Act, was never taken by the respondents in their written statement, therefore they could not have raised the said plea, for the first time before the appellate Court. He has further submitted that the findings, rendered by the learned trial Court, have not been controverted by the learned appellate Court, thus, according to the learned counsel, the impugned judgment is not sustainable.
Conversely, learned counsel for the respondents, while supporting the impugned judgment, has submitted that the legal errors committed by the learned trial Court has, in fact, been rectified by the learned Additional District Judge, therefore, the impugned judgment is not open to exception.
4. In view of the arguments raised by the learned counsel for the parties, I have examined both the judgments and perused the record. Upon the examination of the contents of the written statement, filed by the respondent, I am of the view that the first contention of the learned counsel for the petitioners has some substance as I find that the respondents did not raise the plea of section 20(2) of the Limitation Act. Additionally, the respondents neither filed any application seeking amendment of the written statement nor agitated the said plea through filing any miscellaneous application. It is settled law that a party is precluded from raising altogether a new plea before the appellate Court, which had not been agitated before the Court of plenary jurisdiction. Furthermore, no issue on the alleged controversy was framed by the learned trial Court and the respondents did not file any application for the amendment of the issues. Naturally, when no such plea was raised in the written statement by the respondents, the question of framing of issues on the said controversy does not arise. The learned Additional District Judge, without adverting to the said crucial aspect of the case, proceeded to decide the appeal, only on the basis of his findings on Section 20(2) of the Limitation Act. The learned lower appellate Court ought, not to have allowed the respondents to raise the said plea for the first time before the appellate Court, moreso, when no such application was even preferred before the learned lower appellate Court. In view whereof, the findings, rendered by the learned Additional District Judge on issue No,5 are reversed and those of the learned trial Court are hereby restored.
5. As regards, the other plea raised by the learned counsel for the petitioners, upon the examination of the impugned judgment, I find that the learned Additional District Judge has not at all touched, discussed or controverted the findings of the learned trial Court on other issues and the only plea appears to have prevailed with the learned Additional District Judge was qua section 20(2) of the Limitation Act, which to my mind as discussed above, could neither be raised before the learned Additional District Judge nor dealt with by him.
6. Upshot of the above discussion is that the present petition is allowed and the impugned judgment and decree dated 10-4-1990, passed by the learned appellate B Court is hereby set aside, with no order as to costs. Resultantly, the judgment and decree passed by the learned Civil Judge stands resorted.