JUDGMENT Per: Hon'ble Lok Pal Singh, J. Present civil revision under Section 83(9) of the Waqf Act is directed against the judgment and order dated 27.10.2018 passed by Waqf Tribunal, Haldwani, District Nainital in Waqf Case No. 11 of 2017 “Suresh Chandra Joshi Vs. State of Uttarakhand and others", whereby the tribunal has dismissed the suit as barred by time while deciding issue no.5. 2. Brief facts leading to the present case are that the revisionist/plaintiff instituted the aforesaid suit in the Waqf Tribunal for the decree of declaration, mandatory and prohibitory injunction with the averments that the suit property was inherited by the plaintiff/revisionist from his father and he is in actual physical possession of the suit property. The suit property was nazul property, which was leased out to one Sri Dharmanand, Forest Guard in the year 1925-26. Later on, the said lease was transferred in favour of Shri Hari Datt Joshi and Sri Raghbar Datt Joshi in the year 1927-28 and since then they had been in possession of the property in dispute. Sri Raghbar Datt Joshi died in the year 1950 leaving behind his two sons Sri Laxmi Datt Joshi and Sri Keshav Datt Joshi. Sri Hari Datt Joshi also died in the year 1957 and left his son Sri Jagannath Joshi as his legal representative. Sri Jagannath Joshi also 1973 leaving the revisionist as his sole legal representative. Sri Laxmi Datt Joshi also died in the year 1995 leaving Sri Mohan Chandra Joshi and Sri Girish Chandra Joshi as his legal representatives. Sri Keshav Datt Joshi had died in 1950 leaving behind him his son Mahesh Chandra Joshi. 3. The grand father of the revisionist constructed the shops and factory over the said land and the plaintiff is continuing in the possession of the said land. In the year 1983, one M/s Anjuman Muhaffizzul Islam instituted a suit for permanent prohibitory injunction as well as mandatory injunction against Laxmi Datt Joshi, which was registered as being Suit No. 114 of 1983 “Anjuman Muhaffizul Islam Vs. In the year 1983, one M/s Anjuman Muhaffizzul Islam instituted a suit for permanent prohibitory injunction as well as mandatory injunction against Laxmi Datt Joshi, which was registered as being Suit No. 114 of 1983 “Anjuman Muhaffizul Islam Vs. Laxmi Datt Joshi stating therein that the land Khasra No. 483-Aa, measuring 6 bighas and 8 biswa situated in the Town Village, Haldwani Khas, Pargana Bhabar Chhakhata Tehsil Haldwani District Nainital is the land of graveyard and Sri Laxmi Datt Joshi has encroached a part of land of the said grave yard by putting in brick and other materials for construction of building thereon. It is prayed that the decree be passed in his favour for mandatory injunction directing the defendant to dismantle and demolish the entire constructions raised by the defendant over the land in suit or a decree for demolition and removal of all the construction as form the land in suit be passed in his favour. The said suit was dismissed in default on 10.11.1983. Thereafter an application for demarcation was made on behalf of Uttarakhand Waqf Board before the Additional Collector, Nainital which was registered as Case No. 51/04 of 2012-13 “Waqf Board and another Vs. Suresh Chandra Joshi. The said case was decided by the Additional Collector, Nainital vide order dated 02.05.2013. Thereafter, against the said order one Hafiz Suleiman Khan, Sanrakshak, Committee of Management, Kabrastaan preferred a Revision No. 10 of 2013-14 “Hafiz Suleiman Khan Vs. Addl. Collector and others" before Commissioner, Kumaun Mandal, Nainital. The said revision was dismissed vide order dated 09.06.2014. Thereafter, a writ petition being WPMS No. 2090 of 2014 “Management Committee of Kabrastan Vs. D.M./Addl. Commissioner Waqf, Nainital and others" was preferred before this Court against the orders of the Additional Collector, Nainital. Petitioner was impleaded as party respondent in the aforesaid writ petition. A coordinate bench of this Court dismissed the aforesaid writ petition vide its judgment and order dated 09.09.2014 with liberty to the parties to get their respective title and possession decided from the competent court of jurisdiction. Though, the judgment and order passed against the Management Committee of Kabrastan has attained finality against all the concerned parties except the petitioner, as none of them filed any case for declaration of their respective title and possession in regard to the order dated 09.09.2014. 4. Though, the judgment and order passed against the Management Committee of Kabrastan has attained finality against all the concerned parties except the petitioner, as none of them filed any case for declaration of their respective title and possession in regard to the order dated 09.09.2014. 4. In view of this Court's order dated 09.09.2014, the revisionist filed a case being Waqf Case No. 2 of 2015 titled as “Suresh Chandra Joshi Vs. State of Uttarakhand and others" before the Waqf Tribunal, Haldwani, District Nainital. The State of Uttarakhand and the Uttarakhand Waqf Board contested the aforesaid case by filing their separate written statements. Thereafter, on 24.10.2016, on the basis of the pleadings of the parties, the learned Waqf Tribunal framed following issues: 1. Whether the revisionist is owner in possession of the disputed land? 2. Whether in the year 1960 the graveyard was recorded in the revenue record as per revenue manual and at the same time there is no statutory recognition without marking every mark in the revenue map? 3. Whether a Waqf be registered in the land owned and occupied by a Hindu person? 4. Whether the revenue records be changed in the land whose lease is issued by the municipality without their notice. 5. Whether the suit filed by the plaintiff is barred by time? 6. Whether the suit is not maintainable against the defendant no.1 as no case arises against the defendant no. 1, as stated in the para 29 of the written statement of the defendant. 7. Whether the disputed property in dispute has been undervalued? 8. Whether the plaintiff is entitled to get any relief? 5. After framing the aforesaid issues, the District Judge, Nainital fixed the matter for hearing on 08.11.2016 on issue no. 7. In the meantime, a notification no. 1439/sa.ka./02-226-2002 dated 24.07.2002 was issued, whereby the Waqf Tribunal was constituted. Since the Waqf Tribunal was constituted in Haldwani, District Nainital, the District Judge, Nainital transferred the aforesaid case to the Waqf Tribunal, Haldwani. 6. In support of his case, an application paper no. 60C was filed by the plaintiff to adduce the documentary evidence on record. The said application was allowed vide order dated 22.09.2018 on the costs of Rs. 1,000/- and the case was directed to be listed on 05.10.2018 for hearing on issue no. 5, 6 & 7. Though, the matter was listed for hearing on the issues nos. 60C was filed by the plaintiff to adduce the documentary evidence on record. The said application was allowed vide order dated 22.09.2018 on the costs of Rs. 1,000/- and the case was directed to be listed on 05.10.2018 for hearing on issue no. 5, 6 & 7. Though, the matter was listed for hearing on the issues nos. 5, 6 & 7 on different dates but argument were finally heard on 5.10.2018. Thereafter, the matter was listed on 27.10.2018. Learned Waqf Tribunal recorded its findings on issue no.5 and dismissed the suit as barred bylimitation, however, the tribunal has not recorded its findings on issue nos. 6 & 7. 7. The core issue before this Court is that as to whether the Tribunal is right to treat the issue no. 5 as preliminary issue? 8. The issue of limitation is a mixed question of law and fact which cannot be decided as preliminary issue. Before further discussion it would be worthwhile to mention here Order XIV of the Code of Civil Procedure, 1908, which stipulates settlement of issues and determination of suit on issue of law or on issues agreed upon. The same reads as under: “XIV(1) Framing of issues- (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. (2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. (3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. (4) Issues are of two kinds: (a) issues of fact, (b) issues of law. (5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and (after examination under Rule 2 of Order X and after hearing the parties or their pleaders), ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. (6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence". (6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence". “XIV(2) Court to pronounce judgment on all issues6 (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to- (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose, may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue". 9. It is no more res integra that where an issue involves both mixed question of fact and law, it cannot be taken up as a preliminary issue. The Hon'ble Apex Court in the case of Ramesh B. Desai and Ors. v. Bipin Vadilal Mehta and Ors., reported in (2006) 5 SCC 638 , ( AIR 2006 SC 3672 ), while observing the scope and object of Order 14, Rule 2 observed as followed in paragraphs 13 and 19 which are quoted herein below: “13. Sub-rule (2) of Order 14, Rule 2, CPC lays down that where issues both of law and of fact arise in the same suit, and the court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to (a) the jurisdiction of the court, or (b) a bar to the suit C/SA/236/2018 JUDGMENT created by any law for the time being in force. The provisions of this Rule came up for consideration before this Court in Major S.S. Khanna v. Brig. The provisions of this Rule came up for consideration before this Court in Major S.S. Khanna v. Brig. F.J. Dillon, ( AIR 1964 SC 497 , Page 502 of AIR) and it was held as under: (SCR p. 421) “Under Order 14, Rule 2, Code of Civil Procedure where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the court the whole suit may be disposed of on the issues of law alone, but the Code confers nojurisdiction upon the court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the court; not to do so, especially when the decision on issues even of law depend upon the decision of issues of fact, would result in a lopsided trial of the suit." 10. In the case of Balasaria Constructions (P) Ltd. v. Hanuman Seva Trust and Ors. reported in (2006) 5 SCC 658 , the Apex Court was considering the issue of rejection of plaint under Order 7, Rule 11(d), CPC on the ground limitation. The Apex Court observed that the question of limitation is a mixed question of law and fact, unless and until it is apparent ex facie on reading of the plaint that the suit is barred by limitation, the petition or plaint cannot be rejected under Order 7, Rule 11(d), CPC. Furthermore, a suit should not be ordinarily dismissed, as barred by limitation without proper pleading, framing of issues of limitation and taking of evidence. 11. This Court in the case of M/s Hero Motocorp Limited Vs. Lakhan Juyal passed in WPMS No. 22 of 2015 decided on 16.07.2019 has laid down the principal of law that issue of limitation being a mixed question of law and fact, cannot be decided as preliminary issue. 12. 11. This Court in the case of M/s Hero Motocorp Limited Vs. Lakhan Juyal passed in WPMS No. 22 of 2015 decided on 16.07.2019 has laid down the principal of law that issue of limitation being a mixed question of law and fact, cannot be decided as preliminary issue. 12. In view of the provisions contained in Order 14 Rule 1 & 2 of the C.P.C. and the ratio of the law laid down in the judgment (Supra), this Court is of the view that trial court has committed illegality in deciding the issue no.5 as preliminary issue. Revision is allowed. The order dated 27.10.2018 is hereby set aside. Matter is remanded back to learned Waqf Tribunal, Haldwani, District Nainital to decide the aforesaid case on merit, in accordance with law, after giving the opportunity for leading evidence to the respective parties. 13. There will be no order as to costs.