JUDGMENT : Tashi Rabstan, J. 1. Civil First Miscellaneous Appeal on hand is preferred against order dated 9th July 2014, passed by 3rd Additional District Judge Srinagar (for short "Appellate Court") on Civil Original Appeal titled Mukhtar Ahmad and others v. Fatima and another (File No. 39/Appeal), whereby the Appellate Court allowed Civil Original Appeal, and judgment and decree dated 19th December 2014 of 3rd Additional Munsiff (hereinafter "Trial Court") in civil suit titled Abli Bhat v. Akbar Bhat, set-aside. The Appellate Court remanded back the case to the Trial Court to determine preliminary issues as well as the factual issues afresh. The Appellate Court order also provides that it shall also be open for defendants-appellants herein, to prove as to how the suit is barred by limitation as the issue being mixed question of the fact and law, so is left open for its final determination. Succinct facts that lead to filing of Civil First Miscellaneous Appeal on hand are that one Ghulam Bhat left behind land measuring 01 Kanal 10 Marlas comprising Survey No. 153/55 as also State land comprising Survey No. 1097/47, which devolved upon his two sons namely Abli Bhat and Akbar Bhat (original plaintiff and defendant in the suit). Abli Bhat (father of present respondents) on 18th February 1989 filed a Suit for Declaration with consequential relief of Partition and Possession qua residential house and land underneath and appurtenant thereto comprising Survey No. 1097/47 situated at Arabal, Shalimar, Srinagar. Akbar Bhat (father of appellants herein) filed written statement and contests the suit on several grounds. Meanwhile, original parties i.e. Abli Bhat and Akbar Bhat passed away and their legal representative brought on record as parties to the suit. Trial Court on going through pleadings, framed following issues: (1) Whether the plaintiff is entitled to 1/2 of the share in the suit property? OPP (2) Whether the suit property is gifted to the defendants 2 & 3 by their parental grandfather within the knowledge of the plaintiffs and defendants and the same is valid under law? OPD (3) Whether the suit suffers from non-joinder of the parties? OPD (4) Whether the plaintiff suit fails for want of cause of action? OPD (5) Whether the suit is hit by section 42 of Specific Relief Act, as plaintiff being out of possession? OPD (6) Whether the court lacks inherent jurisdiction in terms of Agrarian informs Act? OPD (3) Whether the suit suffers from non-joinder of the parties? OPD (4) Whether the plaintiff suit fails for want of cause of action? OPD (5) Whether the suit is hit by section 42 of Specific Relief Act, as plaintiff being out of possession? OPD (6) Whether the court lacks inherent jurisdiction in terms of Agrarian informs Act? OPD (7) Whether the suit is undervalued? OPD (8) Whether the suit is hit by principle of res judicata? OPD The following two issues were framed on 11th March 2006: (1) Whether the suit is time barred? OPD (2) Whether the suit land being state land can be partitioned? OPD 2. Trial Court, after hearing arguments on additional issue No. 1 (Whether the suit is time barred), dismissed the suit vide judgment and decree dated 19th December 2014. 3. Aggrieved of judgment and decree dated 19th December 2014, passed, respondents herein directed a Civil Original Appeal. The Appellate Court after hearing counsel for parties, perusing Trial Court record and grounds made in the Appeal, allowed the Appeal and set-aside the Trial judgment and decree vide order dated 9th July 2014. 4. The appellants herein are aggrieved of order dated 9th July 2014, of Appellate Court and challenge it on the grounds set out in memo of Appeal. 5. I have heard have gone through the pleadings as also record available on file I have heard learned counsel for parties. 6. Learned counsel for appellants states that the suit filed by respondents before Trial Court was hopelessly time barred as father had died in early 70's while as the suit was filed in the year 1989 i.e. after 19 years and that plaintiff was out of possession and therefore, as he slept over the matter for a long time, plaintiff could not bring the suit as same was barred by limitation This aspect, according to the counsel for appellants, has not been taken into consideration by Appellate Court while allowing respondents' appeal. It is contended that from the contents and relief clause of the suit filed by the respondents, it is clear that they seek declaration for their entitlement to share of 1/2 of property, as such, respondents had only 12 years to enforce their right to share therein. Article 127 of the Limitation Act, according to counsel for appellants, is applicable in the instant case and as such suit was not maintainable. Article 127 of the Limitation Act, according to counsel for appellants, is applicable in the instant case and as such suit was not maintainable. It is pleaded that judgment has been passed beyond the scope of the pleadings of the parties and that an application for partition before revenue authorities was presented in the matter. 7. Per contra, learned counsel for respondents states that limitation is a mixed question of law and fact and that before the Trial Court no evidence was taken on record and appellants had failed to set up limitation as a defence to the suit. It is averred that law of limitation and its applicability was not at all appreciated by Trial Court and that the evidence was not at all adduced and injustice was done to respondents as after 23 years of pendency of the Lis, the suit was dismissed. Attestation of mutation, according to the counsel for respondents, does not construe exclusion in terms of Article 127 of the Limitation Act and that the further period spent in prosecuting the proceedings before revenue courts is to be excluded which aspect of law needs to be appreciated. It is contended that respondents were not given an opportunity to lead evidence in support of their case set up in the plaint or in defence of the plea of limitation/preliminary issues as such same amounts to denying of opportunity of being heard. 8. The argument of learned counsel for appellant that mutation, made in favour of daughters of defendant (Akbar Bhat) and not challenged by plaintiff (Abli Bhat), has excluded plaintiff in pursuance of Article 127 of the Limitation Act as he has not filed the suit within prescribed period of 12 years, therefore, the suit is hit by limitation, is specious. The attestation of mutation is simply for fiscal purposes and it does not determine the title, so as to take it as exclusion. It is trite that mutation proceedings are not judicial proceedings, therefore, do not decide title and by no stretch of imagination can be termed to be the evidence of exclusion from property. In Privy Council AIR 1926 Page 100 opinion regarding attestation of mutation orders to construe as exclusion was termed to be mistaken opinion. It is trite that mutation proceedings are not judicial proceedings, therefore, do not decide title and by no stretch of imagination can be termed to be the evidence of exclusion from property. In Privy Council AIR 1926 Page 100 opinion regarding attestation of mutation orders to construe as exclusion was termed to be mistaken opinion. It would be appropriate to reproduce what has been laid down by the Privy Council, hereunder: "If however the Court of appeal meant by the language they have used that these orders were evidence that Lal Bahadur Singh was in possession as sole legal owner in a proprietary sense, to the exclusion of all claims of the other members of the family as co-owners or for maintenance otherwise, they, in their Lordship's view, were entirely mistaken. 9. In Raj Kumari v. Sita Devi & Ors. ( 2010 (1) JKJ 44 [HC] : 2010 SLJ 406), the controversy, as is one in the case on hand, has been set to rest. It has been held that if a suit is found barred by limitation, it has to be dismissed irrespective whether such plea has been taken or not and where such plea requires proof and the party raising such plea is required to produce the evidence so as to show the actual date of exclusion, in such case issue becomes mixed question of fact and law, therefore, requires trail. It would be appropriate to reproduce relevant portion of the said judgment hereunder: "In terms of Section 3 of the Limitation Act, if the suit is found barred by limitation same has to be dismissed irrespective whether such plea has been taken or not. Where such plea requires proof and the party raising plea is required to produce the evidence so as to show the actual date of exclusion; in such case issue becomes mixed question of fact and law. So requires trial." 10. The trite law is that the suit could not be dismissed as barred by limitation without proper pleading, framing of issue and taking of evidence. Question of limitation is a mixed question of law and fact. The Appellate court, while setting aside Trial Court judgment and decree, has rightly relied upon Ramesh B. Desai and others v. Bipin Vadilal Mehta and others (2006) 5 SCC 638 , and Major S.S. Khanna v. Brig, F.J. Dillon, AIR MP 316. Question of limitation is a mixed question of law and fact. The Appellate court, while setting aside Trial Court judgment and decree, has rightly relied upon Ramesh B. Desai and others v. Bipin Vadilal Mehta and others (2006) 5 SCC 638 , and Major S.S. Khanna v. Brig, F.J. Dillon, AIR MP 316. The Hon'ble Supreme Court in Ramesh B. Desai's case (supra) has held: "A plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation is a mixed question of law or fact. The question whether the words "bared by Law" occurring in Order 7 Rule 11(d) CPC would also include the ground that it is barred by law of limitation has been recently considered by a two Judge Bench of this court to which one of was a member (Ashok Bhan, J.) in Civil Appeal No. 4539 of 2003 (Balasaria Construction Pvt. Ltd. v. Hanuman Seva Trust and others) decided on 8.11.2005 and it was held: - "After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the paint it cannot be held that the suit is barred by time." A bare look at above conclusion would reveal that each case, the first point of limitation has to be determined, as ground of limitation cannot be decided as an abstract principle of law without connecting the facts of the case, which is entirely a question of fact and that a plea of limitation is mixed question of law or fact. The suit therefore, could not have been dismissed by Trial Court as barred by limitation without proper pleadings and taking of evidence. In the present case, the evidence was not taken. 11. The suit therefore, could not have been dismissed by Trial Court as barred by limitation without proper pleadings and taking of evidence. In the present case, the evidence was not taken. 11. The views taken in Ramesh B. Desai's case (supra) qua limitation being mixed question of law has again been carried in Satti Paradesi Samadhi & Pillayar Temple v. M. Sankuntala (2015) 5 SCC 674 . 12. In the backdrop of above discussion, order dated 9th July 2014, setting aside Trial court judgment and decree dated 19th October 2012, passed in case titled Abli Bhat v. Akbar Bhat, need not any interfere and is accordingly upheld. 13. Resultantly, Civil First Miscellaneous Appeal is dismissed. No order as to costs.