1. This appeal, by the plaintiffs, is directed against the judgment and decree dated 19.1.2002 and 1.2.2002, respectively, passed by the learned Civil Judge (Sr. Division), Dhubri, in Title Appeal No. 22/2002 dismissing the appeal by upholding the judgment and decree dated 18.4.2000 passed by the learned Civil Judge (Jr. Division), No. 1, Dhubri in Title Suit No. 56/1994, whereby and whereunder, the suit filed by the plaintiffs was dismissed on the preliminary issue relating to the limitation.

2. The plaintiffs instituted Title Suit No. 56/1994 in the court of the learned Munsiff, No. 1, Dhubri against the present respondents as defendants praying for declaration that the gift deed No. 1938 dated 15.2.1974 alleged to have been executed in favour of defendant No. 3 by Gouri Shah Gour, the predecessor in interest of the plaintiffs, is illegal, forged and manufactured; that Gouri Shah Gour never gifted the suit land; that the defendant No. 3, therefore, could not derive any right, title and interest over the suit land by virtue of such gift deed; that the plaintiffs are not bound by such deed of gift and also for declaration that the defendant No. 1 cannot derive any right, title and interest over the suit land by virtue of the deed of sale No. 465 dated 28.2.1987 executed in her favour by defendant No. 3; that the plaintiffs are not bound, by such sale deed and also for a decree for eviction of the defendant Nos. 1 and 2 from the suit land after demolishing the structures standing thereon and for perpetual injunction, contending, inter alia, that in May, 1986 the suit land and premises was given on rent to the defendant Nos. 1 and 2 and as they failed to pay the house rents since April 1989 and in June 1989 they arranged material for construction of the house on the suit land, the plaintiffs brought Title Suit No. 190/1989 for, perpetual injunction against those defendants, wherein, the said defendants filed written statement in the month of November, 1989 taking the plea that they purchased the suit land from the defendant No. 3 on 28.2.1987 by registered deed of sale No. 465, which land the defendant No. 3 got from the plaintiffs' father by virtue of a registered deed No. 1938 dated 15.2.1974, which necessitated the plaintiffs to withdraw the suit. The plaintiffs, thereafter, made enquiry and came to know that the deed No. 1938 dated 15.2.1974 alleged to have been executed by their father in favour of the defendant No. 1 is forged and manufactured one, as Gouri Shah Gour never donated the suit land to defendant No. 3 and hence he never accrued any right, title and interest over the suit land by virtue of the said gift deed dated 15.2.1974, and as such, is inoperative and not binding on the plaintiffs and hence the defendant No. 1 cannot derive any right, title and interest over the suit land by virtue of the sale deed No. 465 dated 28.2.1987, and the said sale deed is also invalid and not binding on the plaintiffs. It has further contended in the plaint that the defendant No. 3 was minor on 15.2.1974 and no guardian was appointed for him at that time. The plaintiffs' claim over the suit land is by virtue of the right of inheritance after the death of their father. The cause of action was stated to have arisen from the month of May 1986 November 1989, 15.2.1974, 18.2.1987, April 1989 and on other subsequent dates at Gauripur within the jurisdiction of the court.

3. The defendants/respondents herein contested the said suit by filing written statement, amongst other, taking the plea of limitation and further contending that the plaintiffs were well aware about the transfer of the suit premises by executing the deeds from before and even if they came to know about such execution of the deeds from the written statement filed in the month of November 1989 in Title Suit No. 190/1989, the suit having been instituted more than 3 (three) years from the date of their knowledge about the execution of such deeds, is barred by time. The further stand of the defendants in the written statement is that Gouri Shah Gour being the grand-father gifted the property to the defendant No. 3, as he lost his father, and he being a minor at that time, Murari Mohan Shah, another grand-father and guardian of defendant No. 3 took the possession of the suit house. It was further contended that the defendant No. 3 sold the suit house to the defendant No. 1 after attaining majority.

4. The learned trial court on the basis of the pleadings of the parties vide order dated 22.4.1997 framed the following issues:—

“1. Whether the suit is maintainable in law and in facts?

2. Whether there is any cause of action for the suit?

3. Whether the suit is barred by res-judicata?

4. Whether the suit is barred by limitation?

5. Whether the suit is bad for waiver, estoppel and acquisence?

6. Whether the suit is bad for non-joinder and mis-joinder of parties?

7. Whether the defendant Nos. 1 and 2 are the monthly tenants under the plaintiffs as alleged?

8. Whether the defendant Nos. 1 and 2 are defaulter in payment of rent since April 1989 as alleged and liable to he evicted?

9. Whether the gift deed No. 1938 dated 15.2.1974 is illegal and whether defendant No. 3 has got any void right thereunder?

10. Whether the defendant No. 1 can get any right title and interest over the suit land covered by Schedule ‘B’ out of sale deed No. 465 dated 28.2.1987 executed by defendant No. 3?

11. Whether the plaintiffs are entitled to get the decree as prayed for?

12. To what reliefs), if any, are the parties entitled to?”

5. While the suit was pending, the learned trial court vide order dated 7.12.1998, on the prayer of the defendants, passed an order to decide the issue No. 4 relating to the question of limitation as preliminary issue. The learned court, thereafter, on the basis of the statements made in the plaint passed the order dated 18.4.2000 dismissing the suit by deciding the said issue No. 4 in the affirmative and against the plaintiffs by holding that the suit having not been brought within 3 (three) years from the date of knowledge of its execution, the same is barred by time under article 59 of the Limitation Act. Being aggrieved, the plaintiffs preferred Title Appeal No. 22/2000 in the court of the learned Civil Judge (Sr. Division) at Dhubri, which has also been dismissed vide judgment dated 19.1.2002 by the learned first appellate court by upholding the order passed by the learned trial court.

6. This court vide order dated 6.3.2002 admitted the second appeal for hearing on the following substantial questions of law:—

(1) Whether the learned courts below erred in law in holding that the suit of the plaintiffs is covered by article 59 of the Limitation Act, 1963 although the suit is under section 34 and not under section 31 of the Specific Relief Act, 1963?

(2) Whether question as to limitation can be decided as preliminary issue in view of order 14, rule 2 of Civil Procedure Code inasmuch as a question of limitation is a mixed question of law and fact?

7. I have heard Mr. N. Choudhury, learned counsel for the appellants/plaintiffs and Mr. D.C Mahanta, learned senior counsel appearing on behalf of the respondent Nos. 1 and 2.defendant Nos. 1 and 2. None appears for the respondent No. 3.defendant No. 3.

8. Mr. Choudhury, the learned counsel for the plaintiffs referring to the provision of order 14, rule 2, CPC has submitted that the court should decide the suit by pronouncing the judgment on all issues framed and the suit on a preliminary issue can only be decided when such issue is an issue of law only and relates to the jurisdiction of the court or a bar to the suit created by law for the time being in force. In the instant case, according to Mr. Choudhury, the learned trial court having framed the issues ought to have decide the suit by pronouncing the judgment on all issues and ought not to have decided the issue relating to the limitation only and dismiss the suit, as the question of limitation is a mixed question of law and facts, requiring adducing evidence by the parties and hence cannot be decided as preliminary issue under sub-rule 2 of rule 2 of order 14, CPC. It has further been submitted that the learned courts below dismissed the suit of the plaintiffs without affording the opportunity to adduce evidence, by holding that the suit is barred by time. Mr. Choudhury further contends that both the courts below have dismissed the suit as barred by time by applying article 59 of the Limitation Act, 1963 though the plaintiffs never prayed for cancellation or setting aside of either the deed of gift or sale. Referring to the pleadings as well as the prayer made in the plaint, it has further submitted by the learned counsel that there being no acceptance, even if the gift was made by the predecessor in interest of the plaintiffs in favour of the defendant No. 3, the same is void and, therefore, no title can be passed on to the defendant No. 3 by such gift deed, which is void and consequently the defendant No. 1 also cannot derive any title by virtue of the sale deep executed by defendant No. 3 in her favour. It has further been submitted that the gift being void, declaration sought for in the plaint that the gift deed is illegal, forged and manufactured and not binding on the plaintiffs is of no consequence, and, therefore, the provisions of articles 56, 58 or 59 are not applicable, and as such, the suit cannot be dismissed by holding that the same was not filed within 3 (three) years from the date of knowledge of execution of such gift deed as well as the sale deed. According to Mr. Choudhury, to ascertain the factual aspect on the basis of the pleadings of the parties, evidence is required to be led so as to give a finding on the question of limitation and hence the said question cannot be decided as a preliminary issue, Mr. Choudhury, in support of his contention has placed reliance on the decisions of this court in Smt. Thanda Bala Choudhury v. Sri Birendra Kumar Choudhury, AIR 2002 SC 32; in Bhuwalka Trading & Tea Company v. Tara Bhutoria, (2004) 1 GLT 698; as well as of the Apex Court in Lufthansa German Airlines v. Vij Sales Corporation, (1998) 8 SCC 623 and in State Of Maharashtra v. Pravin Jethalal Kamdar (Dead) By Lrs. (dead) by LRs., (2000) 3 SCC 460 : AIR 2000 SC 1099.

9. Mr. Mahanta, on the other hand, referring to the provisions of order 14, rule 2, CPC has submitted that even the question of limitation can be decided as preliminary issue provided it is apparent from the pleadings in the plaint that the suit is barred by time. According to Mr. Mahanta, it is not that the question of limitation is always a mixed question of law and facts and, therefore, such question cannot at all be decided as preliminary issue. Mr. Mahanta referring to the pleadings as well as the prayers made in the plaint has submitted that the suit being for declaration that the gift deed is a forged instrument and also for declaration that no right, title and interest vests on the defendant No. 3 on the basis of such gift deed, the provisions of articles 56 and 58 respectively, are applicable and not article 59 as held by both the learned courts below. Mr. Mahanta submits that as the period of limitation prescribed under articles 56 and 58 is 3 (three) years, the suit of the plaintiff is evidently barred by time as the plaintiffs in the plaint has stated that they came to know about the existence of such gift deed as well as the sale deed in the month of November 1989 and the suit was filed on 18.2.1994 According to Mr. Mahanta, the learned courts below, therefore, have rightly decided the issue relating to the limitation against the plaintiffs and dismissed the suit.

10. I have considered the submissions made by the learned counsel for the parties and also perused the pleadings as well as the materials available on record.

11. Order 14, rule 2(1), CPC requires the court to pronounce judgment on all issues. However, there is an exception in sub-rule (2) of rule 2, which empowers the court to dispose of a suit on a preliminary issue, if such issue is an issue of law only and relates to the jurisdiction of the court or a bar to the suit created by any law for the time being in force. Section 3 of the Limitation Act imposes a duty on the court to ascertain as to whether a suit filed is within the time and empowers the court to dismiss such suit barred by time although the limitation has not been set up as a defence. The Limitation Act, 1963 prescribed the period of limitations for filing different kinds of suits. Therefore, it is not that the question of limitation cannot be decided as preliminary issue at all. However, if in the opinion of the court while deciding such question of limitation it requires to go into the question of fact related to the plea of limitation, the court no doubt cannot decide such issue as a preliminary issue, the same being the mixed question of law and facts but when the averments made in the plaint is clear and from reading of such averments and by accepting the same as true, if it is evident that the suit is barred by time, the court no doubt, can decide the question of limitation as preliminary issue.

12. The Apex Court in Lufthansa German Airlines (supra) keeping in view the pleadings in the plaint of the concerned suit has observed that the said case was not one; of such suits, which should have been disposed of on the preliminary issue relating to limitation, as in the said case the court had to examine the allegations made in the plaint and the stand taken by the defendant in the written statement. The Apex Court in Name Rama Murthy v. Ravula Somasundaram, (2005) 6 SCC 614 has observed that when the limitation is the pure question of law and from the pleadings itself it becomes apparent that a suit is barred by limitation, than, of course, it is the fluty of the court to decide limitation at the outset even in the absence of a plea. The Apex Court further observed that however, in cases where the question of limitation is a mixed question of fact and law and the suit does not appear to be barred by limitation at the face of it, than the facts necessary to prove limitation must be pleaded and issue raised and than proved and in that case the question of limitation being intricately linked with the question of fact it cannot be decided at the outset. In Ramesh B. Desai v. Bipin Vadilal Mehta, (2006) 5 SCC 638 the Apex Court has also observed that unless it becomes apparent from the reading of the pleadings in the plaint that the suit is barred by limitation, the suit cannot be dismissed on the plea of limitation, as normally such plea cannot be decided as an abstract principle of law divorce from facts as in every case the starting point of limitation has to be ascertained, which is entirely a question of fact and such a plea, therefore, is a mixed question of law and fact.

13. Placing reliance on the decision of the Apex Court in Lufthansa German Airlines (supra) a Single Bench of this court in Smt. Thanda Bala Choudhury (supra) has held that in a suit when the issue relating to the jurisdiction and bar of suit is a mixed question of fact and law, the same cannot be decided as a preliminary issue. In Bhuwalka Trading & Tea Company (supra) another Single Bench of this court has also held that the issues relating to the territorial jurisdiction and limitation in the said case being matters of fact, is a mixed question of facts and law and, therefore, cannot be decided as a preliminary issue under order 14, rule 2. There is no dispute to the said proposition of law.

14. The next question, which requires consideration is - whether the question of limitation in the present suit can be decided at the outset, i.e, to say whether the question of limitation in the present suit is a mixed question of law and fact.

15. As discussed above, it is the pleaded, case of the plaintiffs in the plaint that the defendant Nos. 1 and 2 filed the written statement in the earlier Title Suit No. 190/1989 contending execution of a gift deed by the predecessor in interest of the plaintiffs in favour of the defendant No. 3 and of a sale deed by the defendant No. 3 in favour of the defendant No. 1 and then they made an enquiry and came to know about the existence of such deeds. It is also the pleaded case of the plaintiffs in the plaint that in any case the defendant No. 3, at the time of making the gift was a minor and no guardian was appointed for defendant No. 3. The defendant Nos. 1 and 2, on the contrary, in the written statement has pleaded that the plaintiffs had the knowledge about the deeds at the time of its execution. On the basis of such pleadings of the parties the issue relating to the limitation, apart from other issues were framed. From the averments made in the plaint it is, therefore, evident that the plaintiffs claim that upon enquiry they came to know about the execution of the deeds and, therefore, the date of making such enquiry about the veracity of the statement made by the present defendant Nos. 1 and 2 in the written statement filed, in the earlier suit may be relevant for ascertaining the date of knowledge of the plaintiffs about the existence of such deeds and consequently for deciding the question of limitation. Such factual aspect can only be decided by the court after the evidence is adduced and not otherwise. Hence in the present case, the question of limitation cannot be decided as a preliminary issue as it is a mixed question of law and fact. The learned courts below, however, decided the question of limitation even without recording any evidence and by holding that the suit is barred by time in view of article 59 of the Limitation Act, though evidently the said provision is not applicable in the present suit. Moreover, while deciding the question of limitation the court may also be required to go into the aspect as to whether the gift deed was void and also as to whether the declaration as sought for in the plaint is inconsequential, as observed by the Apex Court in State of Maharashtra (supra) and, therefore, whether the suit is covered by article 65 of the Limitation Act, 1963. Those questions can only be gone into after recording the evidence of the parties.

16. In view of the aforesaid discussion, I am of the view that the judgments and decrees passed by the learned courts below cannot be sustained in law and hence the same are set aside. The case is remanded to the learned trial court for deciding the suit on merit by pronouncing judgment on all issues framed including the issue relating to the limitation. Since the suit was instituted in the year 1994, the learned court below is directed to decide the said suit as expeditiously as possible, preferably within a period of 8 (eight) months from the date of appearance, or the parties. The appellants/plaintiffs and the respondent Nos. 1 and 2.defendant Nos. 1 and 2 are directed to appear before the learned trial court on 21.12.2007 for taking necessary orders. Since the respondent No. 3.defendant No. 3 did not enter appearance before this court, the learned court below is directed to issue notice on the said respondent/defendant and to take up the suit to disposal after service of such notice.

17. The appeal is accordingly allowed. No cost.