Das, J.

1. The only question which has been argued before us is one of limitation. The learned Vakil appearing on behalf of the appellant puts his case in two ways: first, he says that he has a clear and good tide to the land in dispute by adverse possession, and, secondly, that under Article 137 the plaintiff's suit is barred by limitation.

2. Now, it seems to me, that on the pleadings in the case it is not open to him to take up either of these points. The only point which he has raised in the written statement is that the plaintiff's suit is barred by limitation. It is an issue in bar and entitles the defendant to argue that upon the allegations made in the plaint the plaintiff's suit is barred by limitation.

3. Upon the allegations made in the plaint the plaintiff's suit is clearly within time.

4. If it was the object of the defendants to raise any questions of facts in connection with the issue as to limitation, then it was obligatory on them to state those facts in the written statement and invite the Court to raise an issue on the particular facts alleged by them This has not been done and I do not think, it is open to the appellant in this Court which is not a Court of facts, to raise questions of facts.

5. The question of adverse possession is essentially a question of fact and the injustice to the respondents is apparent because there is no finding by the Courts below as to when the appellants took possession of the property and in order to enable the Courts below to determine this point, we would have to remand the case to the Court below.

6. The same argument may be advanced with reference to the point as to Article 137. It is true that the Court of first instance did say that even from the point of View of Article 137 the suit was within time, but still the necessary allegations were not made in the written statement, and I do not think it proper to remand the case for the ascertainment of the facts upon which alone these questions of law can be determined. It has been held by the Court below that the purchase made by the appellant did not give them any title at all and that the respondents have a perfectly good title to the property, having purchased it in execution of a mortgage decree against the parties who are entitled to the property.

7. In my opinion, it is not open to the appellant to raise the question of limitation in this Court, and I would dismiss this appeal with costs.

8. Adami, J. 

9. I agree.