' Muhammad Gul, predecessor-in-interest of the parties was survived by Gul Wahid alias Gul Ahmad and Ghulam Muhammad. The plaintiff-respondents Qadar Gul and Qudrat Gul as well as defendant-petitioner No.1 Ziarat Gul are brothers inter se and sons of the said Gul Wahid alias Gul Ahmad while defendant-respondents Nos.3 to 8 are the heirs of the said Ghulam Muhammad.
Plaintiff-respondents Qadar Gul and Qudrat Gul brought a declaratory suit calling in question the entries in the revenue record pertaining to land measuring 36 kanals 4 marlas in the name of defendant petitioner No.1 on the ground that since the suit land belonged to their predecessor- ininterest, the defendant-petitioner was entitled only to 1/3rd share and to the remaining 2/3rd the.
Plaintiff-respondents Nos.1 and 2 were entitled. Alternatively the plaintiff-respondents sued for possession of their share in suit land measuring 24 kanals 4 marlas.
2. The plea of the defendant-petitioner at the trial, as per his written statement, was that the suit property fell to his share vide mutation No.207 dated 25-11-1945 on the basis of a decree wherein half of the total land measuring 72 kanals 8 marlas was subject of that litigation between him and his uncle Ghulam Muhammad.
3. After recording such evidence as was adduced by the parties in support of their pleas and the issues framed by the learned trial Court, the suit of the plaintiff was decreed vide judgment dated 30-5-1984 to the effect that the plaintiff-respondents were entitled to 14/24 share out of the suit property and the entries in the revenue record regarding the whole share in favour of defendant- petitioner were wrong and ineffective on the rights of the plaintiff-respondents. In appeal the learned Additional District Judge vide his judgment dated 11-5-1985 upheld the judgment and decree of the learned trial Court. Aggrieved from the judgments and decrees of both- the learned lower Courts, the defendant-petitioner has invoked the revisional jurisdiction of this Court, to examine the propriety of the same.
4. I have heard the learned counsel for the petitioner Haji Muhammad Zahir Shah, advocate and also Mr. Abdul Bari Khan, advocate, learned counsel for the respondents at length.
5. The learned counsel for the petitioner while assailing, both the judgments of the learned lower Courts on factual premises, also raised the plea of limitation inasmuch as, according to him, the suit of the plaintiff-respondents Nos.1 and 2 was hopelessly barred by time, the mutation entries having been made in 1945 and both the learned lower Courts were duty bound to examine the question of limitation. He admitted that no such plea was raised in his written statement nor presumably urged before Appellate Court, as is evident from the judgment but urged that the limitation, being a point of law, can be raised at any stage of the litigation. He relied on Muhammad Buta v. Habib Ahmad reported in PLD 1985 SC 153.
6. True, as is held in the aforementioned decision of the Supreme Court, section 3 of Limitation Act is mandatory in nature and it A cannot be left to the pleadings of the parties and the question being a matter of statute, the same cannot be waived and, even if waived, could be taken up by party waiving it and by the Court itself. But in this very case, it has been observed that in exceptional cases, a defendant can be held to be debarred from missing the plea of limitation on the general principle of estoppel arising from his conduct. There are chain of authorities of the superior Courts of this sub-continent wherein it has been held that though a plea of limitation can be raised in a Court of last resort, yet for that it is necessary that there must be sufficient material on the record to decide such question, and as is held in a case Noor Muhammad v. Abdul Hamid decided by Sind High Court and reported in 1984 CLC 23 the plea of limitation can be allowed to be raised even at the revisional stage if on the admitted facts a case of limitation is made out.
7. This Court, in a case Umar v. Afridai reported in PLD 1954 Pesh. 96 has expressed the view that the question of limitation may be one of fact or of law; if former, the Court is not bound to go into it unless raised by the parties and if latter the Court is, as a general rule, bound to raise and decide it although not raised by the parties.
8. The matter, however, does not seem to end here because the applicability of section 3 of the Limitation Act has been under constant examination of the superior Courts and the ratio of numerous authorities on the point seems to be that where the Limitation Act is applicable, it would be necessary for the appellate or revisional forum to examine under section 3 of the Limitation Act whether the proceedings instituted before itself are within limitation. But it will not be under any legal obligation, like the one visualized by section 3 of the Limitation Act, to do so if the plea of limitation raised before it related to the institution of the original suit in the trial Court. Reference in this behalf can be made to decisions of the Supreme Court in the cases of Khairati and 4 others v.
Aleem-ud-Din and another reported in PLD 1973 SC 295 and Ghulam Muhammad and others v .
Malik Abdul Qadir Khan and others reported in PLD 1983 SC 68.
9. In the instant case, as pointed out earlier, the defendant-petitioner did not raise the plea of limitation in his written statement nor it transpires to have been urged at the appellate stage and it is for the first time that it is raised at the revisional stage before this Court. The learned counsel for the petitioner has submitted that both the learned lower Courts were duty bound to examine the question of limitation even if not raised as a requirement of law of limitation, and that section 3 of the Limitation Act places responsibility on the High Court also, regarding the proceedings of the lower forum, to examine the question of limitation.
10. I have given serious thought to the question raised and, after going through the substantive as well as the case law on the subject, I am of the- considered opinion that no doubt it would be necessary for an appellate or a revisional Court to examine under section 3 of C the Limitation Act as to whether the proceedings instituted before itself are or are not within the period of limitation notwithstanding the fact that the other party did not raise it, but it will be under no obligation to do so if the plea of limitation raised before it related to the institution of the original suit in the trial Court. I am fortified in this view of mine by a decision in the case Muhammad Ishaq and others v.
Shah Muhammad and others reported in 1985 SCMR 799.
11. In the case in hand, factual aspect of the matter is that the entries of the mutation were based on a judgment of a suit wherein the plaintiff-respondents were not party at all and, therefore, they were not bound by such decision. Again the entry in the revenue record, if found to be having no true basis, the conclusion would be D that there never did exist any transaction which affected any rights. The revenue record being merely evidence of title, it does not create or extinguish the same.
The learned lower Courts were, therefore, right in holding that the plaintiff-respondents were not bound by the judgment as also the entries in the revenue record and as such these were ineffective on their rights.
12. In this context of the matter, even on the evidence available on the record, the learned counsel for the defendant-petitioner could not make out a case of the suit being barred by time qua the respondents and consequent interference by this Court in the impugned judgments and decrees of the learned lower Courts.
13. On merits too, once the entries in the revenue record are out of consideration, we are left with a situation where the shares of the parties, with their admitted relationship inter se, should be calculated according to Islamic Law. In this regard, the learned appellate Court has rightly held the respective shares of the parties as well as of Mst. Rahat Bibi.
14. Finding no error of law or fact in the concurrent findings of both the Courts below, I dismiss this revision petition with costs throughout.