JUDGMENT

Ram Prasanna Sharma, J. -This appeal is preferred under Section 96 of the Code of Civil Procedure, 1908 against the judgment/decree dated 30-09- 2008 passed by XI th Additional District Judge, Raipur (CG) in Civil Suit No. 23-A of 2006 wherein the said court decreed the suit filed by the respondents/plaintiffs for declaration of title and possession regarding plot Nos.81 area 1000 sq.ft., 72 area 100 sq.ft., 75 area 1000 sq.ft., 66 area 1000 sq.ft., 62 sq.ft., 69 area 1000 sq.ft and 63 area 1000 sq.ft., situated at Telibandha which are allotted to them in residential house scheme by the appellant/defendant.

2. As per the appellant, the land was sold to respondents/plaintiffs on 30-8-1988 and 9-2-1989 and suit was filed on 30-6-2003 for declaration of title and possession which is apparently time barred as per Articles 64 and 65 of the Limitation Act, 1963 and plaint ought to have been rejected under Order 7 Rule 11 of the CPC but the trial court decreed the suit contrary to factual matrix and legal aspect of the matter.

3. Learned counsel for the appellant submits as under.

i) Suit was not filed by any of the purchasers of the land but it is filed by the Power of Attorney namely Harvinder Singh Nagpal which is not maintainable.

ii) As per evidence, possession was not delivered to any of the respondents, therefore, suit for declaration of title was to be filed within three years of such sale deed and suit for possession was to be filed within 12 years of the execution of sale deed, but that is not filed within 12 years and same is filed after 12 years, therefore, decree of the trial court is liable to be set aside.

4. On the other hand, learned counsel for the respondents/plaintiffs would submit that the issue of limitation has not been raised before the trial court, therefore, it cannot be raised in appeal for the first time. He would further submit that Power of Attorney was competent to file the suit and the respondents were examined before the trial court and deposed about possession and dispossession, therefore, finding of the trial court is not liable to be interfered with while invoking jurisdiction of the appeal. He placed reliance in the matter of Rameshlal and others vs. M/s. National Stationery Mart and others (S.A.No.55 of 2001) decided on 28- 3-2014 decided by this court, Jagdish Singh vs. Madhuri Devi, (2008) 10 SCC 497 , American Hotel and Lodging Association Educational Institute vs. Central Board of Direct Taxes and others, (2008) 10 SCC 509 , Janki Vashdeo Bhojwani and another vs. Indusind Bank Ltd and others,2008 2 SCC 217 , Pallavi Refractories and others vs. Singareni Collieries Co. Ltd., and others,2008 2 SCC 227 , Man Kaur (dead) by LRs vs Hartar Singh Sangha (Civil Appeal Nos. 147-148 of 2001) decided by SC on 5-10-2010.

5. I have heard learned counsel for the parties and perused the record of court below including the judgment and decree.

6. The only question for consideration of this court is whether the appellant has constructed residential quarters for Government employees in all the lands for which sale deed was earlier executed in favour of respondents as mentioned above.

7. No one was examined on behalf of the appellant before the trial court for establishing that any construction is made by the appellant in the land of the respondents which is subject matter of the suit filed by the respondents. The issue is related to demarcation of the land, but no demarcation was conducted in the present case, therefore, there is no documentary evidence on record to show that construction is made by the appellant in the land in question. The issue of limitation can be decided only when the date of construction is established, but in the present case there is no evidence to establish on what date the construction was made by the appellant. The finding ought to have been recorded by the trial court objectively on the point but finding of the trial court in this regard is subjective in nature regarding