Digambar Govind Deshpande vs Lahyadeo Bhau Deshpande

Norman Macleod, Kt., C.J.—The plaintiff sued to obtain a declaration that he was the owner of the plaint lands, and that the tenants in actual cultivation of the lands were his own tenants, and for an injunction restraining the defendants from recovering rent of the lands from the tenants or otherwise interfering with them in any way. The suit was brought in the Court of the Second Class Subordinate Judge at Wai, although the lands were situate within the jurisdiction of the Court at Rahimatpur. No objection, however, was taken to the jurisdiction of the Wai Court, presumably because the suit asked for personal relief respecting Immovable property held by or on behalf of the defendant within the proviso to a. 16 of the Civil Procedure Code, and it may be admitted that the suit is not one for possession of land, in which case the Wai Court could have had no jurisdiction. So we need not consider the question whether the point of jurisdiction had been raised too late u/s 21 of the Civil Procedure Code. But although it is not a suit for possession, the issues which were raised in the trial Court were the same issues as would be raised in a suit for possession, and it was found by the Court that the plaintiff was in possession of the suit lands within twelve years of the suit. In the first appeal Court the decree in favour of the plaintiff was confirmed.

For the first time in second appeal it is suggested that the period of limitation for such a suit is six years, not twelve. It may very well be that the period of limitation for the plaintiff''s suit was six years. But it would be a question of fact when time began to run against the plaintiff for the suit which he brought; and although questions of limitation being questions of law are not excluded from being heard in second appeal, when they have not been raised in the lower Courts, we hare always maintained that where a question of law depends upon a finding of fact on evidence and that evidence has not been led in the trial Court, then this Court in second appeal will not deal with the question of law. The defendants have not proved that the plaintiff was not in possession within six years of the suit, and they have not put the plaintiff to the proof that he was. We cannot, therefore, remand the case to the trial Court for a finding on an issue of fact which was never raised in the trial Court, and as we cannot consider the question of law without that finding, we now decline to deal with it. It follows the plaintiff''s suit was rightly decreed, The appeal must be dismissed with costs.