V. Bhargava, J.:— 1. By this petition under Art. 226 of the Constitution the petitioners have sought issue of writs of certiorari to quash the judgments of the Trial Court, (Additional Collector (Judicial), Jalaun), the first appellate court (Additional Commissioner, Jhansi), and the second appellate court (Board of Revenue U.P at Allahabad) passed in proceedings arising out of a suit brought against the petitioners by opposite parties nos. 4 and 5. The opposite parties brought a suit principally under Sec. 320-B of the U.P Zamindari Abolition and Land Reforms Act seeking a declaration that they were the sirdars and in possession of the land in suit, whereas the petitioners were wrongly laying claim to that land. In the alternative, the prayer was that, if it be held that the opposite parties plaintiffs were not in possession, a decree for ejectment may be granted against the petitioners after recording a finding that the petitioners were asamis liable to ejectment under Sec. 202 of the U.P Zamindari Abolition and Land Reforms Act. The trial court recorded a finding that the opposite parties plaintiffs were not in possession but held that they were sirdars while the petitioners were in possession as asamis. It was held that the petitioners had become asamis because the opposite parties had been ejected by the landholder in such circumstances that the provisions of Sec. 27 of the U.P Tenancy (Amendment) Act, Act X of 1947, had become applicable so that the opposite parties were entitled to re-instatement. The opposite parties had in fact obtained an order for reinstatement though no execution of that order was sought. That order had been obtained on 4th of May 1948. By the same order, the petitioners were declared sub-tenants of the land with the further declaration that they were not to be ejected for a period of three years. The suit was decreed by the trial court on the view that it was immaterial that order was not executed and the suit was not time-barred. When the matter came up in appeal before the Additional Commissioner the Additional Commissioner in his judgment wrote that only one single point had been argued in appeal before him on behalf of the petitioners. That point, according to the Additional Commissioner, was whether the issue relating to the rights claimed by the opposite parties should have been referred to a Civil Court. Holding that issue did not require any reference, the Additional Commissioner dismissed the appeal. The petitioners went up in second appeal before the Board of Revenue and there in the course of appeal they contended that, even if the Additional Commissioner held against the petitioners on that one point about reference of issue to the civil court, the Additional Commissioner should have decided all other points raised by the petitioners including the point that the suit was time barred, that the Additional Commissioner was incorrect in saying that only one point had been argued before him, that in fact that point was argued as a preliminary, point only, and that the expectation was that, on the remaining points, the appear would have to be heard later, on merits, in case the decision of the preliminary point went against the petitioners. The Board of Revenue did not go into the question at all as to whether, before the Additional Commissioner, the point that was argued was only a preliminary point or whether the entire appeal had been confined to that one single question. All that the Board of Revenue did was to dismiss the appeal summarily on the view that the question of limitation had not been argued before the Additional Commissioner and, in any case, there was no force in this ground because a suit for ejectment by the tenant-in-chief under Sec. 27 was not barred by limitation.

2. It appears to us that the Board of Revenue in giving the decision did not properly appreciate the grounds of appeal and consequently the appeal was not at all properly decided. The Board of Revenue should have first gone into the question, clearly raised, as to whether the petitioners were right in their contention that the point which was decided by the Additional Commissioner had been argued merely as a preliminary point. That aspect of the case was never examined by the Board of Revenue at all. Further, even if the question of limitation barring the suit had not been argued before the Additional Commissioner, it was necessary for the Board to consider whether such a question could be allowed to be raised in the second appeal, having been raised in the trial court, if it was a pure question of law which required no findings of fact to be recorded by the lower courts. That aspect of the case was also not examined by the Board of Revenue. The Board of Revenue appears to have dealt with the appeal without paying attention to the grounds which required consideration. In these circumstances, we have had to go into the question whether in this case the Additional Commissioner was right in dismissing the appeal of the petitioners without recording a decision on the question of limitation which had been raised on behalf of the petitioners, and, as a consequence, we have also had to see whether the decision of the Board of Revenue that the suit was not barred by limitation was correct.

3. In the affidavit filed in support of the petition, there is the clear averment that the point decided by the Additional Commissioner had been argued merely as a preliminary point and that the petitioners wanted to be heard on other points before the appeal could be decided on merits. This averment is verified from personal knowledge. There is on the other side, in the counter-affidavit, an assertion that this was the only point argued in the appeal and that the point was not argued as a preliminary point. Ordinarily, in exercise of its writ jurisdiction, the Court does not investigate such questions of fact, but in this case we cannot fail to take notice of the circumstance that this point was raised on behalf of the petitioners at the very first stage possible when they filed the second appeal before the Board of Revenue. The Board of Revenue should have gone into this question, but the Board failed to do its duty properly and summarily dismissed the appeal. In the circumstances, it has become necessary for us to examine this question. The averment in the counter affidavit is sworn by the deponent, not on personal knowledge, but on the basis of the record, which means that in the counter-affidavit the information given goes no further than the recitation in the judgment of the Additional Commissioner, and is merely based on the facts as recorded in that judgment. There is no reason why, if the remark of the Additional Commissioner was perfectly correct, some-body on behalf of the opposite parties could not swear from personal knowledge that the appeal had been fully heard by the Additional Commissioner and only one point was urged before him, and that it was not a hearing on a preliminary point only. We are in these circumstances holding that the question of limitation had not been given up and should have been decided by the Additional Commissioner and thereafter considered by the Board of Revenue.

4. There is also the alternative circumstance that in the present case the plea of limitation is one which involves a question of law alone and no question of fact, and such a question of limitation affects the jurisdiction of the court. The plea of limitation raised by the petitioners appears to have been misunderstood by the Board of Revenue when the Board of Revenue purported to reject it on merits by stating the view.

“It is quite clear that a suit for ejectment by the tenant-in-chief under Sec. 27, was not barred by limitation.” The Board of Revenue appears to have failed to notice that the suit was not by a tenant-in-chief, and could not be by such a person, as the suit was brought at a time when in agricultural land to which U.P Zamnidari Abolition and Land Reforms Act applied, tenants had ceased to exist altogether. The suit for ejectment, as decreed by the trial court which decree was upheld by the first appellate court, was under Sec. 202 of the U.P Zamindari Abolition and Land Reforms Act, under which the suit is brought by a bhumidhar or a sirdar, and in such a case there is no question of applying the law of limitation relating to a tenant in chief mentioned in Sec. 27 of Act X of 1947. The question of limitation was raised, it appears, in two aspects. The first was that, the order under Sec. 27 obtained by the opposite parties, not having been executed for a period of three years after that order was passed, the opposite parties were not entitled to sue as their rights as tenants-in-chief extinguished before the U.P Zamindari Abolition and Land Reforms Act came into force. That is an aspect of the case on which there is considerable doubt about the law and we do not think it necessary to express any opinion. Even assuming that it was not necessary for the opposite parties to apply for execution of the order obtained by them under Sec. 27 of Act X of 1947 because the petitioners were declared as their sub-tenants by that very order, there remained the alternative ground of limitation raised, viz. that after the U.P Zamindari Abolition and Land Reforms Act came into force the petitioners had become asamis liable to ejectment under Sec. 202(b) of the U.P Zamindari Abolition and Land Reforms Act, and the suit for their ejectment should have been filed within the period of one year from 1st of July 1952 when the cause of action for ejectment of the petitioners accrued to the opposite parties on the petitioners' becoming their asamis. There is no doubt that, when the U.P Zamindari Abolition and Land Reforms Act came into force, the suit which could be filed under Sec. 202 against an asami who had acquired status as such because of having been declared a sub-tenant under Sec. 27 of Act X of 1947 had to be filed within a period of one year from the date of accrual of the cause of action. Under the order of re-instatement passed in favour of the opposite parties on the 4th May, 1948, the petitioners were declared not liable to ejectment for a period of three years. That period expired on the 3rd of May 1951. Thereafter the petitioners could be ejected at any time, under Sec. 175 of the U.P Tenancy, Act. An application under that provision of law could have been moved if that Act Had continued into force at any time as no period of limitation was prescribed for such an application. On 1st July, 1952, however, the position changed. The opposite parties became sirdars or bhumidhars and the petitioners became their asamis. The latter belonged to a class which was liable to ejectment under Sec. 202(b) of the U.P Zamindari Abolition and Land Reforms Act. At that time the period of limitation prescribed for their ejectment was a period of one year. The period of limitation was prescribed in Cl. (ii) of item No. 25 of Appendix III made with reference to R. 338 of the Rules framed by the U.P Government in exercise of the powers granted by the U.P Zamindari Abolition and Land Reforms Act. The cause of action for ejectment of the petitioners having arisen on 1st of July 1952, the suit had to be instituted within one year i.e by the 30th of July 1953. There is no controversy at all that no suit was instituted for ejectment of the petitioners during this period and consequently the suit became time barred. The result was that under Sec. 204 of the U.P Zamindari Abolition and Land Reforms Act, the petitioners became sirdars and could thereafter not be ejected in a suit under Sec. 202 of the U.P Zamindari Abolition and Land Reforms Act. The suit out of which this writ petition arises was instituted in the year 1958 long after the period of limitation had expired.

5. Exemption from the period of limitation was sought on the ground that the period of limitation prescribed for a suit under Cl. (ii) of item 25 of Appendix III to the U.P Zamindari Abolition and Land Reforms Act was amended by a notification dated 16th November 1954 published in part 1-A of the U.P gazette dated 20th November 1954 as a result of which amendment there was no period of limitation prescribed for such a suit. It is true that on the date of suit no period of limitation remained prescribed in respect of suits under Sec. 202(b) of the U.P Zamindari Abolition and Land Reforms Act of the nature of the present suit. This, however, is immaterial. The period of limitation, as originally prescribed when the first cause of action arose on 1st July 1952, having expired on 30th June 1953, the petitioners acquired a vested right as sirdars under Sec. 204 of the U.P Zamindari Abolition and Land Reforms Act, and a subsequent amendment in the period of limitation could not defeat that right and could not as a result revive the right of the opposite parties to bring the suit which right had already become extinguished when the petitioners acquired the rights as sirdars under Sec. 204 of the U.P Zamindari Abolition and Land Reforms Act. It has been clearly held in a number of cases that if as a result of the expiry of the period of limitation a vested right is acquired by any party, a subsequent amendment in the law of limitation will not affect that vested right, and the amendment provision relating to limitation will not apply so as to govern rights in respect of which finality had come into existence before the amendment, except where the amendment in the law of limitation is, by the Legislature, made expressly applicable retrospectively. We may for this purpose refer to the Full Bench decision of this Court in Gur Saran v. Shib Singh A.I.R 1943 All. 393=1943 A.L.J 548.. The principle was laid down by the Full Bench in the following words:

“It may be taken as generally correct that the law of limitation applicable to a redemption suit of a usufructuary mortgage is the law of limitation which is in force on the date when the action is raised and not the law of limitation which was in force when the mortgage was made or when the acknowledgment was made. But this rule is subject to one well-established exception that if before coming into force of any particular law of limitation, any right or title to the property had been extinguished, the subsequent passing of any Limitation Act would not revive the extinguished right or title unless the new Act expressly does so.”

6. The same principle was laid down by the Bombay High Court in S.C Prashar v. Vasantsen Dwarkadas 1956 XXIX I.T.R 857., where the learned Judges held:

“Although limitation is a procedural law and although it is open to the Legislature to extend the period of Limitation, an important right accrues to a party when the remedy against him of another party is barred by the existing law of limitation and that vested right cannot be affected except by the clearest and most express terms used by the Legislature.”

7. The same principle was also reiterated by the Patna High Court in Sardar Lakhmir Singh v. Commr. of Income-Tax 1958 XXXIII I.T.R 856.. The learned Judges held that although limitation is a matter of procedural law and it is open to the Legislature to extend the period of limitation by an amendment, the amending law cannot be applied to a case where the right is already barred by the previous law of limitation.

8. In the case before us it is true that the period of limitation was subsequently amended in 1954 but that amendment came after the right of suit under Sec. 202(b) vested in the opposite parties had become barred by limitation, and on the other hand, the petitioners had acquired the right as sirdars under Sec. 204. The amendment could not, therefore, protect the present suit. It may be noticed that the amendment introduced in the Appendix changing the period of limitation did not purport to be retrospective at all; though, if it had been retrospective, a further question may have arisen whether the State Government exercising delegated authority to make rules had the power to legislate retrospectively in the matter of limitation law. At one stage, another point that came up for consideration was whether a suit under Sec. 202(b) of the U.P Zamindari Abolition and Land Reforms Act could be said to be a suit based on a recurring cause of action in the case of an asami from year to year arising on the 1st day of each year. After hearing learned counsel for the parties, however, we are of the view that the cause of action for the suit is not based on a recurring right but on a continuing right. The right to eject the petitioners accrued to the opposite parties on 1st July 1952 and if the law of limitation had not barred the suit after 30th of June 1953 that right would have continued and could be exercised on any date till the period of limitation expired. It was not a case where the right accrued on the 1st day of each year. In fact, in the case of such an asami from year to year, his right as asami is a continuing right and is not a right accruing in the beginning of each year. This view of ours follows the principle laid down in Queen's Club Gardens Estates Ltd. v. Bignell 1924 I.K.B 117. which case was subsequently followed in India laying down the same principle in U.A Manfg. Co. v. Moti Lal Bombay Mills A.I.R 1943 Bom. 306.. The principle is also discussed in Simonds' Edition of Halsbury's Laws of England, Vol. 23 at page 510-511. The limitation having expired in the present case on 30th June 1953, this suit brought in 1958 could not succeed and the decree passed for ejectment by the trial court and upheld by the two appellate courts is, therefore manifestly incorrect, the suit having been decreed even though it was time barred. In fact, since the suit was time barred, the courts had no jurisdiction to proceed with the suit and decree it.

9. There is, however, an alternative aspect which has to be considered. We have already mentioned above that the opposite parties had brought the suit for two alternative reliefs. One relief was that of ejectment under Sec. 202(b) of the U.P Zamindari Abolition and Land Reforms Act and we have held that the suit in respect of this prayer was time barred. The principal prayer, however, was for a declaration that the opposite parties were sirdars in possession of the land and that the petitioners were wrongly interfering with the exercise of their rights. This plea claimed by the opposite parties was rejected by the trial court on the finding that the opposite parties were, not in possession on the date of the suit and had not obtained possession outside court in the manner alleged by them. This finding by the trial court did not very much matter to the opposite parties as long as the suit was decreed by the trial court in their favour under Sec. 202(b) of the U.P Zamindari Abolition and Land Reforms Act. If, however, that decree is to be set aside, it is clear that the opposite parties should have an opportunity of getting a decision on this alternative prayer after a full and proper hearing from the appropriate court. On this point there was a proper hearing in the trial court but the first appellate court did not go into this question at all. The opposite parties were content with the decree passed in their favour, and if the appeal of the petitioners was dismissed they were not at all bothered that their alternative prayer for declaration of possession and their right claimed in the suit was disregarded. If, however, the decree for ejectment is set aside they should now obtain a proper hearing from the Additional Commissioner on this alternative claim so that it should be open to them to urge before the Additional Commissioner and get a finding of fact from him whether they were actually in possession and were entitled to the declaratory decree sought by them under Sec. 229-B of the U.P Zamindari Abolition and Land Reforms Act. Even originally, when the Commissioner heard the appeal, if he had come to the view that the decree for ejectment should be set aside, the opposite parties at that stage could have claimed a similar declaration and could have sought findings from the Additional Commissioner which were necessary to obtain that declaration. If the Additional Commissioner had given findings of fact against the opposite parties the suit could have been dismissed in toto.

10. In these circumstances we consider it right to quash the order of the Board of Revenue in the second appeal, as well as the order of the Additional Commissioner passed on appeal, and we order accordingly. Further we direct the Additional Commissioner to hear the appeal on merits again. When this appeal is heard that court will proceed on the basis of our view expressed above that the suit to the extent that it contained the prayer for ejectment under Sec. 202(b) of the U.P Zamindari Abolition and Lane Reforms Act is time barred and can not be decreed, while the finding of fact recorded by the trial court that the opposite parties were not in possession will have to be re-scrutinised by the Additional Commissioner, and after recording his own finding a consequential order will have to be passed by him either decreeing the suit or dismissing the suit for the declaration under Sec. 229-B of the U.P Zamindari Abolition and Land Reforms Act. We direct the Additional Commissioner proceed accordingly. In the circumstances of this case we direct the partieto bear their own costs of this petition.

Orders quashed.