M. K. SHAH, J. ( 1 ) * * * * ( 2 ) WITH regard to limitation it is urged by Mr. Shah that in the instant case as the suit was for getting possession of the land from which the plaintiff had been dispossessed by virtue of the encroachment made by the subtenant the suit would be governed by Art. 64 of the Limitation Act 1963 which provides limitation of 12 years and it begins to run from the date of dispossession. It is Mr. Shahs contention that looking to the evidence on record particularly the evidence of the plaintiffs own witness Ayodhyadasji Purshattamdasji it is shown that the encroachment took place between the years 1951 and 1955 when it became complete and the period of limitation will therefore beginto run from 1955 and the suit therefore filed in 1969 is time barred. ( 3 ) MR. S. C. Shah the learned Advocate appearing for the respondent plaintiff raises a preliminary point and contends that in the instant case as the issue with regard to limitation was not pressed in the trial court by the learned Advocate appearing for the defendants the same cannot be pressed for the first time in this court. Mr. Shah in the alternative further urges that in any case in the instant case as the material on record shows the act of trespass was done by the defendants in the year 1963 and therefore the suit is within time. ( 4 ) MR. S. D. Shah rejoins by submitting that the limitation is a question of law and under sec. 3 of the Limitation Act a duty is cast or a mandate is given to the court or tribunal to dismiss inter alia every such suit which is instituted after the prescribed period although limitation has not been set up as a defence. These are mandatory provisions casting a duty on the courts and therefore even if the defence with regard to limitation is not taken or an issue not sought it would be a duty of the court to dismiss a suit if it is found to have been instituted after expiration of the prescribed period of limitation. ( 5 ) MR. Shah has cited a number of decisions in support of his contention. ( 5 ) MR. Shah has cited a number of decisions in support of his contention. The first one is a Full Bench decision in the case of Rajkishore v. Kangali A. I. R. 1972 Orissa 119 and the observations relied upon by Mr. Shah appear at page 130 and they are in the following terms;"sec. 3 of the Limitation Act provided that every application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. This provision is therefore imperative and casts a duty upon the court to dismiss an application which has not been made within the period prescribed in the schedule and the duty of the court is not dependent on an objection being raised by the opposite party. Another decision cited by Mr. Shah is not of India Railway Administration v. Assam Valley Supply Syndicate A. I. R. 1953 Assam 30 This was a case in which the question of limitation was raised in the pleadings and a specific issue framed and it was held that it was the duty of trial court to go into such question even if it was not argued by the counsel and that the appellate court can itself determine such question if all material facts are before it". ANOTHER decision relied upon by Mr. Shah is Sheikh Makbul v. Union of India and Another A. I. R. 1960 Orissa 146 After referring to two cases with regard to waiver of rights to raise an issue the following observations are made at page 149: "all these cases cited above related to questions of either pure fact or question of law dependent on finding of fact which on material available before the court without further evidence could not be given for deciding the issue. Where however issues such as jurisdiction and limitation as questions of pure law are involved I do not think that the right to raise an issue can be treated to have been waives objections regarding limitation cannot be waived and even if they are waived they can be taken up against by the parties waiving them or by the courts themselves: Kundo Mal v. Daulat Ram Vidya Prakash Firm AIR 1940 Lah. 75. the Patna High Court in Pallakdhari Thakur v. Bankey Thakur AIR 1925 Pat. 75. the Patna High Court in Pallakdhari Thakur v. Bankey Thakur AIR 1925 Pat. 549 where the question as to limitation was raised in the written statement and an issue was framed but it was not pressed in the trial court held that the defendants respondents were entitled to press that point on appeal It is thus open to the parties to raise it at subsequent stage that apart when such issue cuts at the very root of a litigation and if the courts attention is drawn to it it must take cognizance of the same and give its decision on thereonlater appear the following observations which are also important: " The learned counsel relied on a decision of the Calcutta High Court in Bejoy Kumar Bhattacharjee v. (firm) Satish Chandra Nandi AIR 1936 Cal. 382 where it was held that no doubt the plea of limitation can be urged at any stage having regard to sec. 3 of the Limitation Act but when a party does take the appropriate defence but does not put before the Court materials to sustain that defence it is difficult for the Court sitting in appeal to give effect to the defence convention and the court is justified in rejecting it. In Secretary of State v. Ananda Mohan 34 Cal. L. J. 205 (AIR 1921 Cal. 661) which was also relied on by the plaintiff it was held that the general rule is that points of limitation should not be allowed to be raised for the first time in appeal where they involve a decision upon a question of fact points of limitation should not be decided against the parties unless attention leas been drawn to the question of limitation and an opportunity given them to meet it on evidence if limitation is urged as bar the facts on which it is barred must be proved after an issue has been framed". ( 6 ) MR. Shah lastly relied on Ittyavira Mathai v. Varkey Varkey and Another A. I. R 1964 S. C. 907. The observations relied upon by Mr. Shah appear at page 910 after a reference is made to the Privy Council decision in Maqbul Ahmad v. Onkar Pratap Narain Singh A. I. R. 1935 PC. 85:" All that the decision relied upon says is that sec. The observations relied upon by Mr. Shah appear at page 910 after a reference is made to the Privy Council decision in Maqbul Ahmad v. Onkar Pratap Narain Singh A. I. R. 1935 PC. 85:" All that the decision relied upon says is that sec. 3 of the Limitation Act is peremptory and that it is the duty of the court to take notice of this provision and give effect to it even though the point of limitation is not referred to in the pleadings". But what follows after this is also important and it reads thus: "the Privy Council has not said that where the court fails to perform its duty it acts without jurisdiction". But if we look to what is stated in para 9 it would be clear that the question of limitation was not one purely of law but a mixed question of fact and law. The plea in the specific form was not raised by the defendants either in the written statement or in the appeal before the High Court and a specific ground was not taken in the petition for grant of a certificate on the ground that the suit was barred by time and the Supreme Court refused leave to raise the point before it for the first time. ( 7 ) WHAT therefore emerges from consideration of the relevant provisions contained in sec. 3 and the settled position of law is that the provisions contained in sec. 3 are of imperative character and even though a party does not raise a plea with regard to limitation as a defence it would be the courts duty to dismiss the proceedings referred to in sec. 3 if they are filed after the prescribed period. But for considering the question whether the suit or proceeding is barred by limitation the court will be entitled to take into account the admission of the parties An admission on a pure question of law will not bind the parties on whose behalf it is made and therefore admission of an advocate on behalf of the defendants on a point of law as to limitation may not bind the clients. But admission will be binding on the parties where they are admissions of fact if facts are involved ascertainment of which leads to determine a particular question of law which arises and admissions made by an advocate of the party in such circumstances must estop the party from raising the plea. But Mr. Shah submits that in the instant case before the trial Court the plea with regard to limitation was taken on behalf of the defendants issue was framed and evidence was led. The Court had therefore all the material required to decide the issue and in these circumstances if the advocate for the parties does not press the issue at the time of hearing the Court is not absolved from its duty cast under sec. 3 to decide the issue. In any event it will not debar this court from considering the question and deciding the same particularly when all the material necessary for its decision is on record. ( 8 ) NOW it is true that in the instant case an issue with regard to limitation was raised and evidence on the issue was also led. But there was a controversy between the parties as to what was the date of dispossession. According to the defendant it would be some where in between 1951 and 1955; while according to the plaintiff it was in the year 1963 so far as the fact about the encroachment is concerned but the precise nature and the extent of the encroachment came to light when the Commissioner prepared sketch Ex. 71 which was prepared on September 22 1966 Thus decision on the question of limitation depended in the instant case on dissolving the controversial question of fact with regard to the date of dispossession or the date of encroachment. A point of law with regard to limitation was based on controversial facts. In such circumstances if a concession is made or the issue is not pressed it amounts to admission on the part of the defendants that dispossession is made within the period of limitation and in this view of the matter the learned Judge was perfectly justified in deciding that the suit was not barred by limitation though it is difficult to understand as to on what basis; he came to the conclusion that the question of limitation was not involved at all in the suit. Probably he was also relying on the concession made on behalf of the advocate of the defendants to the effect that dispossession was within 12 years and therefore the suit was also within the period of limitation. I do not see any reason to accept Mr. Shahs contention in this behalf. . . . . . . . . . . . . . . . . . ( 9 ) THE third point raised by Mr. Shah with regard to competence of the plaintiff to file the suit against the defendants. The plaintiff is the main tenant is respect of the entire property of the Wadi while the defendant is the subtenant of a part thereof. It is submitted by Mr. Shah that the landlord of the plaintiff that is the trust terminated his tenancy by a notice to quit and thereupon the plaintiff became a statutory tenant in respect of the entire land including the land which was in occupation of the defendant. Such a statutory tenant had a personal right to remain in possession and he had therefore no right to recover possession from the defendants in respect of a part of the land on which the defendants are alleged to have trespassed and which land in occupation of the defendants according to the plaintiff forms part of the Wadi land of which the plaintiff is a mere statutory tenant. Reliance is placed in this connection by Mr. Shah on Anand Nivas Private Limited v. Ananji Kalyanjis Pedhi and Others A. I. R. 1965 S. C. 414. As observed in this decision of the Supreme Court a person remaining in possession after determination of tenancy becomes a statutory tenant and his only right is to remain in possession and he cannot enforce the terms of original tenancy But it is nowhere laid down in this decision that a statutory tenant who has a right of possession of the property by virtue of the protection granted to him under the Rent Act cannot protect his possession against a trespasser. If Mr. Shahs argument is accepted then as soon as the contractual tenancy of a tenant is terminated by his landlord be can be deprived of possession by any trespasser with no remedy available to the statutory tenant to remove such trespasser. I am not inclined to accept Mr. Shahs contention in this behalf. If Mr. Shahs argument is accepted then as soon as the contractual tenancy of a tenant is terminated by his landlord be can be deprived of possession by any trespasser with no remedy available to the statutory tenant to remove such trespasser. I am not inclined to accept Mr. Shahs contention in this behalf. ( 10 ) HE therefore fails in his last and the third ground urged in support of his appeal. The appeal therefore fails. Appeal dismissed. .