GH U LAM MUHAMMAD AND OTHERS vs Malik ABDUL QADIR KHAN AND OTHERS

ORDER

1. ' MUHAMMAD AFZAL ZULLAH, J.-Leave to appeal has been sought from judgment dated 11-5-1982 of the Peshawar High Court whereby the petitioners' civil revision arising out of a land/waqf case was dismissed.

2. ' According to the learned counsel the suit land (originally in one Khasra number but subsequently divided into three, total 6 kanals and 9 marlas) was purchased by the petitioners/defendants' side in 1927. A suit was filed from the respondents' side in 1969 seeking declaration that the suit land was the subject-matter of waqf-the dedication for purpose of graveyard having taken place somewhere in the beginning of the century. Mandatory injunction was also sought against the petitioner regarding permanent use of the suit land. The petitioner apart from denial on merits also raised plea of limitation. The suit was partly decreed by the learned trial Court with the finding that some of the suit land was being used as graveyard while the remaining not being under such a use, the .Suit in that behalf could not be decreed. Both parties filed appeals. The petitioners' appeal was dismissed while respondents' appeal was allowed even with regard to the remaining suit land.

3. Thus the suit of the respondents stood decreed in its entirety at the appeal stage. The petitioners challenged the appellate judgment through revision petition. The same having been dismissed, they have now sought leave to appeal.

4. ' On merits the learned Judge in the High Court apart from noting the evidence going against the petitioners' case also observed as follows :- "It is contended by the learned counsel for the petitioners that though the suit property was dedicated as waqf property for the purpose of graveyard but it was not used as graveyard therefore according to the learned counsel the suit property cannot be treated as waif property Learned counsel remained unable to satisfy us on the question of dedication or about the status of the suit land as hang waqf property. He, however, strenuously argued that the suit was time barred.

5. In this behalf he relied on Mosque known as Masjid Shahid Gard and others v. Shiromani Gurdwara Parbandhak Committee, Amritsar and another and Allah Rakhi and others v. Muhammad Abdur Rahim and others .

6. It is not necessary to go into the question whether the suit was not time-barred because this point was not urged on behalf of the petitioners during the hearing of the revision petition in the High Court. Learned counsel has argued that even though it is not conceded by him that the point was not pressed in the High Court, it was also the duty of the learned Judge in the High Court himself to examine the question of limitation. Firstly because it is so required by section 3 of the Limitation Act and secondly because the plea was raised before the trial Court, the appellate Court and also in the grounds of revision petition, No doubt one trend in old authority was that every point relatable to limitation could be urged in the higher forum even if not pressed earlier but this Court finally resolved the controversy in Khairati and 4 others v. Aleem-ud-Din and another . The ratio of this decision is that although it would be necessary for the appellate Court (here the High Court) to examine whether the proceedings instituted before it are within limitation, it will not be under any legal obligation to do so if the plea of limitation related to the institution of the suit/proceedings before the trial Court. Learned counsel tried to distinguish this authority on the ground that it applied only when no appeal/revision was filed by the party (relying on the point of limitation) and not when the point is not pressed at the time of the argument. The distinction is too technical to be given any importance. If the party having raised a point in the memorandum of appeal or revision does not press the same at the time of the hearing normal presumption is that the same was not intended to be pressed and thus was given up. Learned counsel also attempted to argue that once the point is taken in the memorandum of appeal it should be presumed that it must have been urged at the time of hearing unless it is noted in the judgment that the same was given up or was not pressed. This is not essential in every case. The factual aspect of the question can be concluded by reference to the judgment in question. The other points are noted therein. The presumption would thus be that the point in question, if raised, would also have been noted. On the other hand there is well-known practice that if a serious dispute is intended to be raised in this behalf, there must be some material at least in the form of an affidavit of the person arguing the matter showing that the point was pressed. In that case, a further serious question might arise whether such assertion would be given preference to the contents of the judgment. After hearing the learned counsel we do not consider it necessary to reopen the question of limitation as the same was not pressed in the High Court. This petition is accordingly, dismissed. AIR 1940 P C 116 1 L R 56 All. I I 1 PLD 1973 SC 295