JIBAN CHANDRA SARMA Vs. SUKRAM KALITA AND ANR.

JUDGEMENT

(1.) THIS is a Plaintiff's second appeal, arising out of a suit for declaration that the Plaintiff is the owner of certain land and for recovery of possession of the same.

(2.) THE Plaintiff is the owner of 12 B. 1K. 18 lechas of land shown in the schedule 'Ka' attached to the plaint. The 2nd Defendant was a tenant of the Plaintiff In respect of the entire land. The 2nd Defendant sold 8 B lechers out of this land to the 1st Defendant by a sale -deed dated 19th January, 1953. The Plaintiff brought the present suit on the 9th May, 1956, the allegation in the plaint was that the Plaintiff had no knowledge of the sale -deed, inasmuch as the rent was all along paid for six years by the 2nd Defendant and he was thus kept out of the knowledge of the sale -deed. Both the courts below dismissed the suit on the ground of limitation. The finding of the Courts below is that the suit is barred by Section 68 of the Assam (Temporarily -Settled Districts) Tenancy Act, 1935, hereinafter referred to as the Act. Section 63 of the Act reads as follows: If any holding or part of a holding be transferred in contravention of the provisions of this Act, such transfer shall be voidable at the option of the landlord and the offending tenant's entire interests in the holding shall be liable to be forfeited; and the landlord may within 3 years of the transfer bring a sort for recovery of possession of the entire interests of such tenant in the holding and shall be entitled to a decree for ejectment of such tenant or his transferee and any person claiming under either of them. Provided that when the Court is satisfied that the transfer was made in good faith, the Court may, in lieu of ejectmenl, grant such other relief as may with due regard to the landlord's interests to it seem suitable.

(3.) MR . Lahiri's contention is that Section 63 of the Act does not prescribe any period of limitation, and as it does not provide for any special period of limitation, Section 29 of the Limitation Act is not attracted to this case and the suit will be governed by a general provision of the Limitation Act and that the suit being one for possession, Article 142 or Article 144 of the Limitation Act will be attracted to the present case. Admittedly the suit was brought beyond three years from the date of the sale -deed and if Section 63 of the Act applies to the present suit, then the suit will be barred by time. We do not think that there is any substance in this contention The language of Section 68 of the Act is very plain. It lays down that any transfer made in contravention of the provisions of the Act shall be voidable at the option of the landlord and the offending tenant's entire interests in the holding shall be liable to be forfeited and the landlord may within three years of the transfer bring a suit for recovery of possession of the entire interests of such tenant in the holding and shall be entitled to a decree for ejectment. The section clearly provides that if a transfer has been made, in contravention of the provisions of the Act, then the landlord can avoid such a transfer and bring within three years of the date of the transfer a suit for possession against the tenant including the transferee It cannot be said that Section 68 of the Act does not provide for a period of limitation. Mr. Lahiri's contention is that Section 29 of the Limitation Act, however, speaks of special period of limitation; it contemplates a provision like Section 125 of the Act. Section 125 in its terms applies to cases which are provided for in the schedule attached to this Act. A suit under Section 68 is not included in the. Schedule. Thus, Section 125 does not apply to a case under Section 68 Merely because the language used in Section 63 is different from the language in Section 125, it cannot be said that Section 63 does not prescribe any period of limitation In interpreting Section 63, the plain language of the Section will have to he considered and the fact that a different language has been used in Section 125 is no ground for ignoring the plain language of Section 68. Section 63, in our opinion, clearly prescribes a period of limitation for the suits contemplated by the said section. It was then contended by Mr. Lahiri that the mere fact that a transaction is voidable at the instance of the landlord, does not necessarily follow that suit has to be brought for cancellation of such a document. We do not think that any objection can be taken to this broad proposition. It is not the case of the other side that the suit is barred by Article 91 of the Limitation Act, which provides for suits for cancellation of certain documents.