This second appeal is directed against the judgment and decree dated 17-4-1980 whereby the learned Additional D1strict Judge, Lahore dismissed the appeal and maintained the order of the trial Court dated 2-3-1980, rejecting the plaint on the point of limitation.
2. In a suit for admin1stration the plaintiffs-appellant claimed a share in and partition of the property in dispute, and also payment of the past mesne profits after proper rendition of accounts.
They asserted that they were the heirs of Mst. Khurshid Begum who, on the death of Mian Rukan-- ud-Din, the original owner of the-immovable property, was a shareholder as his daughter. The plea was controverted by the respondents and the trial Court, instead of deciding the suit on merits, considered it proper to reject the plaint on two grounds namely, the suit was barred on account of with--drawal of an earlier similar suit, and on the point of limitation. The appellants filed an appeal before the learned Additional D1strict Judge, who did not agree with the first ground, but observed at the same time that the suit was barred by limitation. It was contended that the will on the basis of which a larger share was claimed was a reg1stered document and operated as notice to all and that a reliance on the said document after more than 70 years would render the suit barred by time.
3. It is evident from the judgment of the learned Additional D1strict Judge that basic discussion related to the will allegedly executed by Mian Rukan-ud-Din and it was on account of its reg1stration made in the year 1907 that provisions of section 3 of the Transfer of Property Act (IV of 1882) were invoked to hold that the suit filed in 1977 was beyond time as its knowledge was deemed to have been attained in the year 1907. The reasoning was misplaced, inasmuch as the plaint could only be rejected under rule 11(d) of Order VII, C. P. C. If the suit appeared from the statement in the plaint to be barred by any law or in other words, where the suit appeared to be prima facie barred by any law from a perusal of the statement in the plaint. I have gone through the plaint and find that the plaintiffs-appellants made a mention in para. 3 that their ancestor Rukan-ud-Din died in the year 1907 and that he had executed a will whereby he had left a lot of property, both movable and immovable, as was shown in the later part of the paragraph. They stated that Mst. Khurshid Begum, the predecessor of the plaintiffs received a proportionate share of the proceeds of the property from her brothers. A question would arise whether the mere death of the common ancestor would deprive the heirs of their due share by simple lapse of time or it would have been a question to be examined after hearing the parties. Ordinarily no limitation was applicable amongst the co-shares although one of them was even out of possession. Between co-sharers, therefore, the' question of limitation required proper evidence after framing an issue and allowing the parties to lead evidence. It was not a question, particularly in the instant case, which could be decided simply from the averments of the plaint, and for that reason the plaint could not have been rejected. I, there--fore, hold that, while rejecting the plaint on the point of limitation, the Courts below had, in the exercise of their jurisdiction, acted illegally and with material irregularity.
For the foregoing reasons the appeal is' accepted, the judgments and decrees of the learned Courts below are set aside and the case is remanded to the trial Court for deciding the suit in accordance with law after framing issues arising out of the pleadings of the parties. The parties shall however bear their own costs throughout.