' SYED SAJJAD HASSAN SHAH, J.--- Sultan petitioner-defendant has challenged the judgment and order dated 9-5-2011 passed by learned Additional District Judge/IZQ-III, Swat, whereby the appeal filed by the respondent challenging the judgment and order dated 29-3-2010 of learned Civil Judge-Illaqa Qazi, Swat was accepted and the plaint filed by the respondents-plaintiffs was rejected under Order VII, Rule 11, C.P.C.
2. The facts, in brief, are that respondents-plaintiffs filed a declaratory suit fully detailed in the heading of the plaint to the effect that they along with pro forma defendants Nos.2 to 4 are owners in possession of the suit property and the petitioner-defendant be restrained from interference in the suit property. They averred that the entries made in the Revenue Record are fraudulent, against the law. The respondents-plaintiffs in support of their claim, relied upon a document dated 15-5- 1979.
3. The petitioner-defendant resisted the suit by filing his written statement, claiming that the suit property is his ownership with possession which is recorded in the Revenue Record in his name during the settlement operation of 1985-86.
4. Along with the plaint, the respondents-plaintiffs made an application seeking temporary injunction. The application was contested by filing replication by the petitioner-defendant. The learned trial Court, while hearing the application, rejected the plaint filed by respondents-plaintiffs vide order dated 29-3-2010, on the ground that the suit filed by them is beyond the period of limitation and further held that agreement dated 15-5-1979 does not create any legal right, therefore, it cannot be used as the basis of the suit.
5. Feeling aggrieved from the order dated 29-3-2010, the respondents-plaintiffs filed appeal which was accepted and the impugned judgment was set aside.
6. The learned counsel for the petitioner-defendant contended that the suit of the respondents- plaintiffs is hit by the provision contained in Article 120 of the Limitation Act, which prescribes the period for filing of a declaratory suit as six years from the date of accruing the cause of action. He pointed out that the respondents-plaintiffs challenged the entries of settlement record which has been conducted and finalized in the year 1986. After passage of such a long time, the respondents- plaintiffs are not entitled for the decree sought to annul such entries made in the Revenue Record, as it is high time to check the illegal and unlawful acts of a litigant who wanted to indulge a person in protracted litigation just to tease and harass the otheRs, He prayed for the acceptance of the revision petition.
7. I have considered the submissions of learned counsel for the petitioner and carefully gone through the available record.
8. A perusal of the plaint vividly specifies that the respondents plaintiffs sought the declaration regarding the suit property that the suit property is their ancestral property and they are in its possession as owners since the time of their forefathers and the petitioner-defendant is not having any right or interest in the suit property. They further claimed that the entries made in the settlement record of the suit property in the name of petitioner-defendant are wrong, illegal, without jurisdiction, without any rhyme or reason, void and against the Shariah, based on fraud and collusion, made in absence of the respondents-plaintiffs, therefore, ineffective upon their rights and further prayed for the correction of such entries.
9. The relief sought by the respondents-plaintiffs requires proof pro and contra by leading evidence during the trial of the case in respect of deed of the year 1979 and the knowledge of entries acquired by the respondents-plaintiffs. The question of limitation is not a pure question of law, but same is the mixed question of law and facts which cannot be resolved in absence of evidence. Whenever a plaintiff raises factual controversy in the plaint, he cannot be non-suited at the very inception of the suit on the basis of bar of limitation, more particularly when the written statement has been filed and issues . Are to be framed. After framing of issues and recording of evidence, the Court can legitimately decide about the question of limitation and all other questions involved in the, suit. However, the rejection of plaint at premature stage is not permissible for the simple reason that, the Court, before passing order of rejection of plaint, has to see the averments made in the plaint and then to visualize and assess that had these averments been admitted as correct, the plaint would be liable to be rejected. On the other hand, if the perusal of the plaint reveals that it requires evidence to prove the facts narrated therein, then its rejection is not the command of law. In such circumstances, the Court has to provide ample opportunity to both the parties to produce evidence in support of their respective stance taken in their pleadings and then to decide the matter in accordance with the issues framed.
10. There is yet another aspect of the case that the learned trial Court, while passing the order, was seized of an application for issuing temporary injunction, therefore, it should have confined itself to the application and should not have rejected the plaint suo motu without notice to the respondents-plaintiffs, notwithstanding that the written statement was filed by the petitioner- defendant and the learned trial Court was to frame issues and proceed further with the case. In such eventuality, the passage of order would not serve the purpose of law but it would be augmenting the agonies of litigants and amounts to gear up the pendency of unnecessary litigation. In such circumstances, the learned appellate Court has rightly accepted the appeal and set aside the impugned order of the learned trial Court. There is no illegality or material irregularity in the impugned judgment.
11. For the reasons mentioned above, the revision petition being without any substance is hereby dismissed along with C.M. No,64 of 2011 in limine.