PROMOTHA NATH ROY Vs. KISHORE LAL SAHA

JUDGEMENT

(1.) In my judgment this appeal should be dismissed.

(2.) I intend to say very little about the facts of the case, because they are dealt, with fully by the learned Subordinate Judge. It seems to me that the learned Subordinate Judge has found two facts either of which is sufficient to defeat the appellants case- He has found that the jote right existed prior to the acquisition of the putni and kayemi jote, but within about the last quarter of a century the malih defendants ignored such right and exercised only their more important tenure right.... On consideration of the above facts it seems to be probable that the malik defendants predecessor allowed the minor jote right to merge in the larger right and, therefore, everything passed to the plaintiffs." When one comes to consider that the putni right was acquired at least some fifty years before the institution of the suit, I cannot help thinking that the learned Subordinate" Judge was right in coming to the conclusion that the minor right had been allowed to merge in the larger one. Then in order, to make the matter quite certain, the learned Judge goes on to say that even supposing that the minor right did not merge in the larger one, the plaintiff would be entitled to succeed unless the defendant could show that the lands in suit were comprised in his jote upon which he relies, and he finds as a fact that the defendant has not" discharged that onus of proof that the lands in suit were comprised in his jote. That in itself is sufficient to defeat the defendants case. For these reasons I think the learned Judge was right in coming to the conclusion at which he arrived.

(3.) Then arises the other question upon the Statute of Limitation. It appears that the sale took place in 1893, and this suit was not brought until 1909 The Sale was an auction-sale under a certain decree. In 1895 a suit was instituted for the purpose of setting aside that decree and also the sale which was completed under it, and the suit was taken from one Court to another and finally to the Privy Council, whose decision was given in the year 1905, by which the plaintiffs were declared to be entitled to the land which they had brought in the year 1893. In my judgment, it is quite sufficient to say that Section 16 of the Limitation Act applies to this case, and if it does apply, all the time during which the proceeding to set aside the sale has been prosecuted should be excluded. It is obvious that the first part of this section applies to the suit in question, because this was a suit by a purchaser at a sale in execution of a decree for possession of the land. The only point which is taken by the learned Vakil is that the suit which was instituted for the purpose of setting aside the sale was not a proceeding within the meaning of Section 16. I see no reason for limiting the word proceeding ", which is a word of general meaning, to something which is not a suit. In my opinion it includes a suit. It would be a most unreasonable interpretation to put upon the word to say that if a proceeding to set aside a sale is instituted by a petition then the time which is occupied by that proceeding should be excluded, whereas if a proceeding to set aside a sale be instituted in the form of a suit, the time occupied by such a proceeding should not be excluded. I think this would lead to an unreasonable and unjust result. Therefore, in my opinion the time which was occupied in the prosecution of the suit to set aside the sale, namely from 1895 to 1905, ought to be excluded in the computation of the time under Article 138. Therefore, the suit was brought within time.