' AJMAL MIAN, J.---This is a direct appeal filed under Article 185(2) of the Constitution of the Islamic Republic of Pakistan, 1973, against the judgment/decree dated 20-12-1993 of a Division Bench of Peshawar High Court passed in R.F.A. No,42 of 1989 filed by the respondents against the dismissal of their Suit No,133/1 of 1981 for the recovery of Rs,70,000 with interest by the learned Civil Judge-I, Mansehra, allowing the same by reversing the above judgment/decree of the Trial Court and decreeing the suit of the respondents for a sum of Rs,70,000 with 6 per cent interest from the date of institution of the suit i,e, 9-11-1981 till the date of decree i,e, 20-12-1993.
2. The brief facts are that the respondents filed aforesaid suit averring therein that they were owners of land bearing Khasra numbers mentioned in the plaint on which 'cheer' pine trees were grown and due to natural calamity, 50 trees were uprooted or fell down due to winds. It was further averred that the officials of the appellant-department were informed and were requested for transportation of the uprooted trees for sale, on which enquiry was conducted and the officials of the appellant-department confirmed that the above trees were uprooted by winds. They also allegedly allowed the respondents to sell the above-said trees. It was also alleged that the above trees were seized by the appellants and were auctioned. It was further pleaded that the respondents also received a communication from the Martial Law Authorities.
3. The aforementioned suit was resisted. In the written statement, inter alia it was pleaded that the Martial Law team on an inspection of the site found that the respondents had illegally cut the above trees. They ordered the confiscation of the same. The plea of limitation was also raised besides other pleas.
4. The learned Trial Court, on the basis of pleadings of the parties, framed eight issues. The respondents in support of the case examined six witnesses besides respondent No,1 examining himself. Whereas the appellants examined D.W.1 Salar Muhammad. The Trial Court, after hearing the parties, recorded its finding on the question of limitation in favour of the respondents but dismissed the suit inter alia on the ground that no effective decree could be passed as the order of the Sub-Martial Law Administrator and the enquiry report remained in the field. Against the above judgment/decree, the respondents filed aforementioned R.F.A. No,42 of 1989, which was allowed in the above terms.
5. In support of the above appeal, Mr. Fateh Muhammad, learned Advocate Supreme Court appearing for the appellants, has contended that the suit was barred by limitation and, therefore, the learned Judges of the Division Bench were not justified to decree the above suit without adverting to the question of limitation.
6. Since the learned Trial Court had recorded finding on the question of limitation against the appellants, they should have filed cross-Ejections to the respondents' aforesaid R.F.A. If they wanted to get the above finding set aside. Having not done so, the above finding had acquired finality. The appellants cannot be allowed to agitate the above question in this appeal. Reference may be made in this regard to the case of Khairati and 4 others v. Aleem-ud-Din and another (PLD 1973 SC 295), in which also the finding on the question of limitation was not impugned by the defendants before the First Appellate Court. This Court, while declining a petition for leave to appeal, held as follows:-- "It is no doubt true that a respondent can support a decree even on points decided against him, but a respondent cannot attack a decree or ask for its variation without a cross-objection. In the present case, the Trial Court had found as a fact that the suit for specific performance was not barred by time. Therefore, by contending that the suit was so barred, the respondent in this case was not seeking to support the decree as it was but rather to attack a finding in the decree; and this he could not do without filing any cross-objection.
' The next contention of the learned counsel appearing in support of this review petition is that it is, in any event, the duty of the Court to consider the question of limitation. This is also correct to the extent it goes; but it does not mean that where a Trial Court has given a finding on the question of limitation against a particular party, he can still, without filing an appeal or cross-objection, challenge that finding in the higher Court of Appeal.
' The Appellate Court is certainly bound to consider whether the appeal is within time or not, but it is not called upon to consider whether the suit has been rightly held to be within time, if no appeal or cross objection is filed."
' Same view was reiterated in the case of Knawel Nain and 3 others v. Fateh Khan and others (PLD 1983 SC 53).
7. Then it was urged that though respondent No,2 was also a plaintiff in the suit, but he did not examine himself as a witness.
8. The above contention is also untenable as one of the plaintiffs i,e, appellant No,1, who had joint interest with appellant No,2, had examined himself besides producing six witnesses.
9. Then on merits it was contended by Mr. Fateh Muhammad that under section 26 of the Hazara Forests Act, 1936, hereinafter referred to as the Act, cutting of trees without the permission is an offence punishable to the extent of imprisonment of two years or with fine, which may extend to Rs,10,000. His further submission was that under section 39 . Of the Act, the appellant-department has the power to confiscate the above . Trees illegally cut by the respondents.
10. Admittedly, no prosecution was lodged against the respondents under section 26 of the Act nor any confiscation order was passed under section 39 as the matter was not reported as required by subsection (2) of section 39 of the Act. The plea taken by the appellants in their written statement was that the aforesaid 50 trees were confiscated on the basis of enquiry conducted and the order passed by the Martial Law Authorities. It was not their case that any action was taken by them under the provisions of the Act. The appellants have not been able to show any provision of any Martial Law Order or Regulation under which Martial Law Authorities could have taken the above action, though the case was covered by the provisions of the Act. The learned Judges in the judgment under appeal found that the appellants had sold timber measuring 1969.6 c. Ft. For Rs,85,279.35. The appellants have been allowed to retain 20 per cent. As the charges from the sale proceed. The decree has been granted for the balance of Rs,70,000. The respondents had claimed interest at the rate of 14 per cent. But the learned Judges of the Division Bench have allowed 6 per cent interest and that too for the period from the date of the suit till the date of the decree and not for the period subsequent to the decree. The judgment under appeal does not suffer from any legal infirmity. The appeal has no merit. It is, accordingly, dismissed, with no order as to costs.