ABINASH CHANDRA DUTTA Vs. GOUR CHANDRA

JUDGEMENT

(1.) This appeal is by a mortgagor claiming relief under Section 26G(5), Bengal Tenancy Act.

(2.) The facts are simple. A usufructuary mortgage was executed in 1902. The mortgagees remained in possession. On 19-6-1946, the present application was filed in the Court of the Munsif of Dubrajpur alleging that the usufructuary mortgage had become extinguished by virtue of possession of over 15 years under Section 26G(5), Bengal Tenancy Act. The Munsif gave relief to the appellant. On appeal being taken to the Court of the Dist. J. of Birbhum 'the Disk J. held that Article 181 of the Indian Limitation Act applied & therefore as the right to apply under Section 26G arose when the section was enacted in 1938 the present application in 1946 was barred by time. Against this decision of the Dist. J. the present appeal has been filed.

(3.) So far as the question of limitation is concerned with regard to proceedings under the Bengal Tenancy Act there are three classes of cases. The first is where the period of limitation is provided for in the section itself; for example in cases of having sales set aside, or of preemption after receipt of notice etc. The section itself provides the period of limitation. The second class of cases is where the period of limitation is provided for in Sch. III, Bengal Tenancy Act; for example suits brought to recover possession when dispossession is by the landlord etc. The third class of cases is that in which no period of limitation having been provided for the Indian Limitation Act operates in view of Section 143, Bengal Tenancy Act, & Section 141. Civil P. C. In the present case the question is what will be the period of limitation under the Indian Limitation Act as no period of limitation is provided for either in Section 26G or in the third Schedule of the Bengal Tenancy Act for an application of this kind. This appeal first came up before me as a single Judge & as there has been no decision of this Court directly on this point it was referred by me to the Divisional Bench.