' FAZAL ELAHI KHAN, J.--In this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the judgment and order of respondent No,5 dated 23-7-1984, whereby the plaintiff-petitioner's suit was dismissed as barred by time and those of respondents Nos.6 and 7 in appeal and revision respectively affirming the same are challenged.
2. The facts in brief are that Zahir Shah petitioner herein instituted a declaratory suit against respondents Ncs .1 to 4 herein in which he claimed to be the owner and in possession of one-half share in land detailed therein and in the alternative prayed for its possession. It was alleged that Amir Alam Khan and Jamal Khan owned the land in equal shares. On the death of Amir Alam Khan his one-half share in the suit land devolved on him while the other half devolved on respondents Nos.1 to 4 on the death of Jamal Khan. It was further alleged that he was 4/5 years of age when his father died and defendants Nos.1 to 4 took over the management of the entire land and were regularly making payment to him cf his proportionate share in the produce of the land.
Subsequently he left for Karachi in search cf his livelihood. On his return from Karachi sometime before the institution of the suit he came to know that in the settlement operation, carried out in the area, respondents 1 to 4, in collusion with the Revenue authorities, got entered the entire suit land in their sole ownership to the exclusion of the plaintiff.
3. The Additional Deputy Commissioner, exercising the powers of Deputy Commissioner under the Provincially Administered Tribal Areas (Regulation II of 1975) (hereinafter to be mentioned as the Regulation) took cognizance of the suit. The defendants were summoned who on their appearance in Court in their joint written statement resisted the plaintiff's suit on various legal and factual pleas including that of limitation. It was stated that they are in possession of part of the suit land since their forefather and the rest of it they had purchased through various sale-deeds. The learned Additional Deputy Commissioner on consideration of the pleadings of the parties held the plaintiff's suit barred by time and dismissed the same vide his order dated 23-7-1984. The plaintiff's appeal and revision against the said order respectively failed before respondents Nos.6 and 7.
4. The main grievance of the learned counsel for the petitioner before us in this writ petition was that although the learned Additional Deputy Commissioner was empowered under section 4(2) of the Regulation to give his decision on the question of limitation before making reference to the Tribunal and could dismiss the suit if the same was held barred by time but such power was to be exercised judicially and not in an arbitrary manner. The learned counsel contended that the question of limitation being a mixed question of fact and law, the parties to the issue should have been given opportunity of producing their evidence for substantiating their respective allegations relevant for the decision of the question of limitation.
5. In controverting the arguments the learned counsel for the respondents argued that Regulation II of 1975 is a special law and Code of Civil Procedure having not been made applicable to the proceedings under it, the learned Deputy Commissioner having the jurisdiction to determine whether on the allegations made in the plaint, the suit had been brought in a civil Court, the same would have been barred by limitation under the law as provided under section 4(2) of the Regulation or not. In case the finding was in the positive the suit was to be dismissed otherwise the dispute was to be referred to the Tribunal for giving its finding on the issue referred to it on merits of the case. The finding given by the Deputy Commissioner supported by reasons, which was affirmed in appeal and revision by the forum of exclusive jurisdiction, was immune from interference in writ jurisdiction.
6. After hearing the learned counsel for the parties, in our view, there is no dispute over the legal aspect of the case that the Deputy Commissioner is empowered under section 4(2) of the Regulation to decide the question of limitation, if raised in the pleadings, as a preliminary issue. But we are not inclined to accept the contention of the learned counsel for the respondents that the Code cf Civil Procedure having not been made applicable to the proceedings under the Regulation has given such unbridled and unfettered power to the Deputy Commissioner so as to ignore all norms of justice while sitting in judgment over a dispute cf civil nature between the parties. The plaintiff while seeking his redress of a wrong done to him in a Court, Tribunal or Authority empowered under the law for its redress, makes specific allegations of his grievance and lays down foundation for his right to the relief claimed in his plaint, petition or appeal, as the case may be. These allegations when made, even if not expressed in so many words, have direct bearing on determining the period cf limitation. Similarly the defendant in resisting the plaintiff's claim raises all plausible, legal and factual pleas available to him under the law in his written statement. It is in this context that the question of limitation has been held to be a mixed question of fact and law.
Accordingly any finding on the question of limitation without affording an opportunity to the parties to substantiate their allegations touching the question of limitation is unimaginable.
7. Now reverting to the facts of the present case, the plaintiff has categorically alleged in his application (plaint) that the defendants during his minority were in permissive possession of the property and he was regularly being paid produce of his share. While on the other hand, the defendants after denying the allegations made in the plaint have further stated to be in possession of the land in their own rights to the exclusion of the plaintiff since their forefathers. It was further stated that they have purchased part of the suit property through various deeds referred to in their written statement. Such being the pleadings of the parties, on the face of the record, there was a serious controversy between the parties regarding the factual aspect of the case having direct bearing on the question of limitation. The learned Deputy Commissioner, however, without recording any evidence observed that the plaintiff having admitted that his father C died some 25 years back and that neither his father had asked for possession of the land nor the plaintiff did so after his death held the plaintiff's suit barred by time. The learned Deputy Commissioner did not advert to the allegations made by the plaintiff in his application that the property is joint and that defendants were managing it in his childhood and he was being paid his proportionate share of the produce. Such being the position in the circumstances of the case the recording of evidence of the parties in support of their respective pleas was very much necessary. This was the view expressed by thier Lordships of a Division Bench of this Court in Mst. Jahan Pari v. Muhammad Umar (as unpublished judgment in W.P. No,434 of 1985 decided on 16-12-1985). In that case while setting aside the order of dismissal of the suit by the Deputy Commissioner as barred by time, in which no opportunity was given to the parties to lead their evidence, it was observed as follows:- "Before parting, we may however, emphasise that whenever and wherever a question as tc the rights of the parties in respect of immovable property is raised it should not be disposed of in perfunctory and slipshod manner. True that the C.P.C. Is not applicable under the PAT A but its principles have to be followed in letter and spirit so that the parties should have no cause for concern. Each question should be thoroughly examined and decision made after recording the necessary evidence."
' Keeping in view the facts of this case and the principles laid down in the judgment cited above we have no hesitation in holding that respondents Nos.5 to 7 have acted illegally in holding the plaintiff's suit barred by time without affording opportunity to the plaintiff to lead his evidence on the issue. Consequently this writ petition is allowed and the judgments and orders of respondents 5 to 7. Are declared illegal, without lawful authority and of no legal effect. The record of the case is sent back to the learned Deputy Commissioner who has to determine the issue pertaining to limitation after affording opportunity to the parties to lead their evidence and then to proceed further in the matter according to law. Parties are left to bear their own costs.