HEGDE - (1.) THIS is an appeal by special leave. The facts of the case lie within a narrow compass and the questions of law arising for decision are also few.
(2.) THE suit from which this appeal arises is for possession of the suit properties on the basis of the plaintiff's title. One Tehal Singh sold the suit properties to the predecessors-in- interest of the defedants by means of a deed dated October 11 1894. His son Krishna Singh sued for a declaration that the said alienation being an alienation of ancestral properties was inoperative agains his reversionary interest as it had been effected without consideration and without legal necessity. This suit was filed on October 11, 1895. THE suit was decreed in part. THE decree declared that the plaintiff Krishna Singh will be entitled to recover possession of the suit properties after the death of his father on payment of Rs. 2,500.00. This decree was made on November 28, 1895. But Krishna Singh died during the lifetime of Tehal Singh. THEreafter Tehal Singh adopted the appellant on 11/04/1944. Tehal Singh died in 1949. THE present suit was brought in 1959. The trial court dismissed the suit as being barred under the provisions of the Punjab Limitation (Custom) Act, 1920 (Act 1 of 1920). That decision was affirmed by the first appellate court as well as by the High Court in second appeal. The material portion of S. 5 of the Punjab Limitation (Custom) Act, 1920 runs; "Notwithstanding anything to the contrary contained in the 1st. Schedule of the said Act (Indian Limitation Act 1908), every suit, of any description specified in the Schedule annexed to this Act instituted after the period of limitation prescribed, therefore, in the Schedule shall be dismissed although limitation has not been set up as a defence." Article 2 (a) of the Shedule provides : JUDGEMENT_109_2_1973Html1.htm
(3.) IT was conceded at the bar that if the suit property is held to be the ancestral property qua Tehal Singh then the relevant period of limitation is that prescribed in Clause (b) of Article 2 (A) of the Punjab Limitation (Custom) Act, 1920. The first contention taken on behalf of the appellant is that the provisions of the Punjab Limitation (Custom) Act, 1920 do not apply to the facts of the present case as the suit properties were not the family properties of Tehal Singh. This contention does not appear to have been taken either before the trial court or before the first time before the High Court in second appeal. The High Court considered that contention and rejected the same. In our opinion, the High Court should not have allowed that contention to be raised for the first time in second appeal as a decision on that contention involved determination of question of fact.;