' MUHAMMAD AZAM KHAN, C.J.---The captioned appeal with the leave of the Court arises out of the judgment of the High Court dated 14th March, 2003, whereby Civil Appeal No. 55 of 2001 filed by Niaz Muhammad, defendant, predecessor-in-interest of the respondents, was accepted. The judgments and decrees of the Courts below were set aside and the suit filed by the plaintiff, predecessor-ininterest of appellants herein, was dismissed on the ground of limitation.
2. Mst. Mehr Nishan, plaintiff, predecessor-in-interest of appellants herein, instituted a suit for possession in the Court of Sub-Judge Muzaffarabad on 5-1-1995 alleging therein that she is owner of land measuring 24 kanals, comprising Survey No.165, 21 kanals, 13 marlas, comprising Survey No.547 of 200 and land measuring 4 kanals, 16 marlas, falling in Khewat No.53, situate in village Chatter Class. She prayed for cancellation of sale-deeds dated 4th November, 1959, 2nd September, 1957, agreement-to-sell dated 6th April, 1952 and mutations sanctioned on the basis of aforesaid sale-deeds. It was further alleged by her that the agreement-to-sell and sale-deeds are fake and fictitious. All the proceedings were conducted secretly. She attained knowledge when defendant No.1 filed a suit in the Court. Soon after attaining knowledge she obtained the copies of necessary documents and filed the suit. After necessary proceedings the trial Court decreed the suit of Mehr Nishan, plaintiff, vide judgment and decree dated 31st May, 1997. The sale-deeds dated 2nd September, 1957, 4th November, 1959 were cancelled being fake and fictitious and it was also declared that the agreement-to-sell dated 6th April, 1952 is of no value and not enforceable.
Mutation Nos.112, 190, 191 and 222 were also cancelled. The plaintiff was also declared entitled to the possession of the land. Dissatisfied from the judgment and decree, Niaz Muhammad filed an appeal in the Court of District Judge Muzaffarabad. The District Judge vide judgment and decree dated 27th July, 2001 dismissed the appeal. Dissatisfied from the said judgment and decree, the defendant-respondent filed second appeal in the AJ&K High Court. A learned single Judge in the High Court accepted the appeal vide impugned judgment and decree on 14th March, 2003 on the ground of limitation, hence this appeal by leave of the Court.
3. On 9th July, 2012, Raja Muhammad Hanif Khan, counsel for the appellants, requested for an adjournment, whereupon the counsel for the parties were ordered to file written arguments and the judgment was kept reserved to be announced after receiving the written arguments. The respondents filed written arguments on 16th July, 2012 while counsel for the appellants filed written arguments on 26th July, 2012.
4. Raja Muhammad Hanif Khan, the learned counsel for the appellants, has taken position that the judgment of the High Court is against the settled law. The learned Judge in the High Court has dismissed the suit while disturbing the concurrent findings of facts on the ground of limitation while applying the provisions of Order VII, Rule 11, C.P.C. The question of limitation was not involved in the suit. Mst. Mehr Nishan, plaintiff, predecessor-in-interest of appellants herein, specifically alleged in para 13 of the plaint that all the proceedings have been conducted secretly. She acquired knowledge when defendant No.1 filed a suit in the Court which is still pending for adjudication. After obtaining the copies, she filed suit without any delay. The defendants filed written statement on 19th November, 1996. The question of limitation was neither raised by the defendant in the writtenstatement nor he refuted her claim that she acquired knowledge after filing of suit by Niaz Muhammad. There was no denial by the defendant. In a case reported as Public Health Engineering Division and others v. Aurangzeb Khan (2008 SCR 590) it was observed that the defendant must deal specifically with each allegation of fact of which he does not admit to be true.
The fact must be specifically denied. It was observed in para 16 as under:- "16. A combined reading of Rules 3, 4, and 5 C.P.C. Shows that defendant shall specifically deny each allegation of fact which he does not admit. The facts must be specifically denied and not evasively. If such allegation of fact in the plaint is not denied specifically or by necessary implication it shall be taken to be admitted."
' The claim of the plaintiff was admitted by the defendant in the written statement, therefore, the question of limitation cannot be decided by the High Court when the same is not raised. The question of limitation is mixed question of facts and law and it cannot be decided if the same is neither raised nor any evidence is led on it. In para 15 of the plaint she further specifically alleged that the cause of action arose when defendant No. I filed a suit in Civil Court on 2nd July, 1994. The learned counsel relied upon the following cases:--
(i) 2003 SCMR 542, (ii) 2003 YLR 79 (iii) 2003 CLD 440, (iv) PLD 1975 SC 624, (v) 2000 CLC 1265 and
(vi) PLD 1984 SC (AJ&K) 138.
' In the case reported as Mst. Noor Khatoon v. Muhammad Shafi (2003 SCMR 542) the petitioner at the stage of arguments in the P.L.A. Before the Supreme Court moved an application for amendment in the plaint for taking the plea of limitation. The Supreme Court refused to grant leave on the ground that the principle of estoppel applies to the party. The party is precluded from raising the plea of limitation on general principle of estoppel arising out from his conduct when such plea is taken at belated stage involving inquiry into facts.
' In the case reported' as Ehsan All Alibhoy and 2 others v. Industrial Development Bank of Pakistan and others (2003 CLD 440), it was observed that the question of limitation being a mixed question of fact and law cannot be resolved without giving opportunity to the parties to produce their respective evidence.
' In the case reported as Muhammad Sadiq v. Shahid Parvaiz and 6 others (2003 YLR (Lahore) 79), it was observed that the question of limitation is a mixed question of fact and law. Facts necessary for resolving such questions were neither pleaded nor proved. The plea of limitation was neither raised before the trial Court nor the Court had given any finding thereon. It was, therefore, held that such plea could not be decided by the appellate or revisional Court as a pure question of law.
' The case reported as Mst. Hamida Begum v. Mst. Murad Begum and others (PLD 1975 SC 624) deals with the question of limitation in a suit for cancellation of Waqf-alal-aulad. It was observed that Article 91 of the Limitation Act is not applicable to a suit where cancellation of instrument is merely incidental or ancillary to the relief claimed substantially. It does not apply to a suit where the cancellation of instrument is merely incidental to the substantial relief for recovery of possession or declaration that the instrument is ineffective as against the plaintiff's rights.
' There is no case at page 1265 of 2000 CLC, referred by the counsel for the appellants.
' The case titled Muhammad Zaman Khan v. Sher Afzal Khan and others (PLD 1984 SC (AJ&K) 138) is not relevant for the question of limitation. It deals with the concurrent findings of facts recorded by two Courts and set aside by the High Court. It was observed that concurrent finding of facts recorded by two Courts cannot be disturbed by the High Court.
5. The learned counsel further ra; Ad the point in the written arguments that the plaintiff specifically alleged that the agreement-to-sell and sale-deeds were executed without her knowledge while committing fraud. The trial Court recorded finding that fraud has been proved. Two Courts recorded concurrent finding relying upon the record. The concurrent finding of fact recorded by two Courts cannot be disturbed in second appeal. This Court and the Supreme Court of Pakistan in a number of cases has held that where question relates to the right of inheritance to ancestral property, the question of limitation would not arise. Where a person claims ownership in a particular property and transaction is based on fraud, limitation cannot be pleaded as a defence.
He relied upon the following cases:--
(i) PLD 1993 SC AJ&K 24, (ii) PLD 2002 SC 677 (iii) PLD 2002 SC 823 and (iv) 2001 SCMR 1591 ' The case titled Bostan and 5 others v. Mst. Sattar Bibi and 11 others (PLD 1993 SC (AJ&K) 24) lays down the law that in case of inheritance, if the name of a co-sharer is excluded from mutation, there is no limitation for challenging the same.
' The case titled Khair Din v. Mst. Salma and others (PLD 2002 SC 677) relates to question of fraud. It was observed that a person claiming proprietary rights in a particular property on the basis of fraudulent transaction, no benefit can be derived by such person. If fraud is established on' record, it is sufficient to vitiate the whole proceedings.
' In the case reported as Juma Khan and others v. Mst. Bibi Zenab and others (PLD 2002 SC 823), it was observed that in a case which relates to right of inheritance to ancestral property, the question of limitation would not arise.
' In the case reported as Mst. Raj Bibi and others v. Province of Punjab through District Collector Okara and 5 others (2001 SCMR 1591), it was observed that fraud vitiates even the most solemn transaction as such any transaction based on fraud would be void notwithstanding the bar of limitation. The matter can be considered on merits so as not to allow fraud to perpetuate.
6. The learned counsel for the appellants further submitted in the written arguments that the judgment is against the provisions of Order XLI, Rule 31 of C.P.C. And the learned Judge in the High Court failed to comply with the aforesaid provisions of law. The judgments of trial Court and first appellate Court are based on record. Concurrent findings cannot be disturbed in second appeal.
7. In the written arguments filed on behalf of respondents, it has been submitted that the suit filed by Mehr Nishan, plaintiff, was hopelessly time-barred. Any suit filed after the prescribed period of limitation has to be dismissed in the light of section 3 of the Limitation Act, 1908 coupled with time fixed in Schedule-III of the said Act. The plaintiff failed to furnish any explanation for delay in filing the suit. The trial Court as well as the first appellate Court failed to apply correct law. The suit was liable to be dismissed under Order VII, Rule 11 of C.P.C. The plaintiff never requested for condonation of delay. While relying upon the case titled Muhammad Ishfaque Khan v. Rehman Khan and 11 others (2011 SCR 18) an argument was advanced that if a person sleeps over his right or duties, he deserves to be packed out of Court. The referred case lays down correct law that all the litigants are required to remain vigilant and not indolent in prosecuting their cases before a Court of law.
The learned counsel defended the judgment of the High Court on all counts.
8. We have perused the record and written arguments filed by the learned counsel for the parties. It is admitted position that Mehr Nishan, plaintiff, predecessor-in-interest of appellants, filed a suit for possession in the Court of Civil Judge Muzaffarabad on 5th January, 1995, whereby she challenged the agreements-tosell dated 6th April, 1952, sale-deeds dated 2nd September, 1957, 4th November, 1959, Mutation No.191, sanctioned on 2nd November, 1958, Mutation No.190 sanctioned on 2nd November, 1956 and Mutation No.222 sanctioned on 17th January, 1965. The suit was decreed by the trial Court declaring that the agreement-tosell and sale-deeds are based on fraud and mutations sanctioned on the basis of these sale-deeds were declared to be of no legal value. The plaintiff was declared to be entitled to possession. First appellate Court concurred with the finding recorded by the trial Court. The learned single Judge in the High Court accepted the appeal filed by Niaz Muhammad, defendant, and dismissed the suit on the ground of limitation, while observing that the powers vested in the Court under Order VII, Rule 11 of C.P.C. Can be exercised by the appellate Court. We agree with the legal position that the powers vested in a Court under Order VII, Rule 11, C.P.C. Can be exercised by an appellate Court and the suit can be dismissed under this provision but the question in the case is whether the suit was hit by limitation or the plaintiff has explained delay caused in filing the suit? It is an admitted position that the question of limitation is a mixed question of fact and law. If inquiry into facts is involved, then the question of limitation can be resolved provided it is raised by a party in the pleadings and evidence is led on it. The defendant has not denied the fact alleged by the plaintiff that she attained the knowledge when Niaz Muhammad filed a suit in the civil Court. Non-denial was an admission on the part of defendant The judgment cannot be delivered against the pleadings of the parties. In a recent judgment of this Court titled Ehtezaz Asgher and another v. Ch. Muhammad Sajawal and 2 others 2012 YLR 1580 was observed that the Court cannot travel beyond the pleadings of the party. The Court has to go by the pleadings of the parties. It has no jurisdiction to decide the case which has not been put forward by any of the party. It was observed in para 8 of the report as under:-- ' The law is settled that a Court cannot travel beyond the pleadings of the parties. The Court has to go by the pleadings of the parties and it has no jurisdiction to decide a, case which has not been put forward by any party in the pleadings. It was observed by this Court in a case titled Azad Govt.
And 3 others v. Ayesha Shoukat and another (2011 SCR 119) as under:-- ' The learned Judge clearly travelled beyond the pleadings of the parties. The Court has to go by the pleadings of the parties and it has no jurisdiction to decide a case which has not been put forward by any party. Until and unless the party specifically prays for a relief, such relief cannot be granted. Our above finding is supported by the judgment of this Court delivered in the case titled Beero v. Mst. Said Bi (1992 SCR 286) and Azad Jammu and Kashmir Government and 4 others v.
Messrs Spintex Limited (1998 SCR 167)........
9. A perusal of paras 13 and 15 of the plaint reveals that the plaintiff specifically alleged that all the proceedings were fake and kept secret. The plaintiff acquired knowledge when defendant No.1 filed a suit in the civil Court which is still pending. On acquiring the knowledge, she obtained the copies and has filed suit without any delay. In para 15 of the plaint, the plaintiff alleged that cause of action arose firstly from fake/fictitious sale-deeds and mutations and secondly from the suit filed by defendant No.1 on 25th July, 1994. The defendant in his written statement has not refitted the fact that the plaintiff was not in the knowledge of the sale-deeds and the suit has been filed beyond the period of limitation. There is also on record a copy of order, whereby suit filed by Niaz Muhammad against Mst. Mehr Nishan on 26th July, 1994 was dismissed on 5th January, 1995. Mehr Nishan filed a suit on the same date i.e. 5-1-1995, which strengthens the proof of knowledge of the plaintiff on a particular date as alleged in the plaint.
10. Firstly; the defendant Niaz Muhammad has not refuted the claim of plaintiff where she alleged that she was not in knowledge of sale-deeds, mutations and agreement-to-sell executed by the defendant. She acquired knowledge after filing the suit by Niaz Muhammad, therefore, allegation in the written statement is admitted by the defendant as correct. The question of limitation was not raised, therefore, there was no occasion for -the trial Court and the first appellate Court to decide the question of limitation. Secondly; the fact that Niaz Muhammad filed suit in July, 1994, which was dismissed on 5th January, 1995 and the plaintiff filed suit in the trial Court on 5-1-1995, which is further proof in favour of assertion made by the plaintiff that she was not in knowledge of any- sale-deed or agreement-to-sell and mutations. No doubt, under Order VII, Rule 11, C.P.C. a suit can be dismissed on the question of limitation, but when the plaintiff has taken a specific position that she was not in knowledge of transactions and she acquired knowledge on a particular date, it becomis such question which needs detailed inquiry into facts and Order VII. Rule 11, C.P.C. Is not applicable. In the case where, from bare reading of plaint, question of fact appears to be involved in it, the suit cannot be dismissed under the aforesaid provision of law. The appellate Court can also exercise powers of trial Court vested in it under Order VII, Rule 11, C.P.C., but the position after filing written statement and judgments recorded by the two Courts has changed. When the defendant fails to take objection with regard to limitation and admits the claim of plaintiff, in that case the provisions of Order VII, Rule 11, C.P.C. Cannot be invoked by the appellate Court for dismissing the suit on the question of limitation.. There was no occasion for accepting the appeal and dismissing the suit under Order VII, Rule 11 C.P.C. The finding is not sustainable. The plaintiff, predecessor-ininterest of appellants, has raised question relating to her rights in ancestral property and she has alleged fraud. This Court in a case titled Bostan and 5 others v. Mst. Sattar Bibi and 11 others (PLD 1993 SC (AJ&K) 24) has observed that where the question of inheritance in ancestral property is involved, the question of limitation is not relevant. It was observed as under:-- " As she was a co-sharer with the appellants, though was not so recorded in the Revenue Record, she would be deemed to be in continuous possession of her share and any adverse entry in the Revenue Record would not oblige her to challenge the same within a period of six years of the entry because the cause of action in such cases would accrue only when real threat is posed to her title such as when the defendants-appellants denied net title in unequivocal terms We have also considered other argument of the counsel for the appellants that the judgment is against the provisions of Order XLI, Rule 31, C.P.C., but the High Court has accepted the appeal and dismissed the suit only on the question of limitation. The appeal was not decided on merits, therefore, the dilation upon the other points will be an exercise in futility. We may observe here that although this Court has power to decide the case itself, but we feel it necessary to first have wisdom of the High Court on the merits of the case. Therefore, we refrain from deciding the case ourselves.
' The result of above discussion is that the appeal is accepted. The judgment of the High Court is set aside and the case is remanded to the High Court for decision on E merits preferably within a period of four months from the receipt of record. No order as to costs.