SREEMATY BAJROGA KHATUN Vs. PROVINCE OF BENGAL

JUDGEMENT

(1.) This appeal arises out of a suit by the plaintiffs for declaration of their raiyati right in one- third share of the suit land and for recovery of possession. The suit land formerly belonged to one Hakimuddin Patwari who died in Pous 1331 B.S. leaving six daughters, one son and a widow. Three of the daughters are plaintiffs and the other three daughters and the son and the widow are pro forma defendants 5 to 9. The suit was contested by the Secretary of State, defendant 1, who had purchased the holding of Hakimuddin Patwari in a certificate sale in respect of arrears of rent for 1337-1338 B.S. The plaintiffs claim, as they were not certificate debtors in those proceedings, their interests were not affected by the certificate sale, and they also claim to have been dispossessed of the holding in the latter part of 1340 B.S. by the Secretary of State. The Secretary of State's case is that the three plaintiffs were represented by pro forma defendant 6, Selnn Mia, son of Hakimuddin Patwari, and that their interest passed in the sale. In the trial Court the plaintiffs claimed that they had separate possession of the suit land and had themselves paid rent. The trial Court found that in fact they had no separate possession and that the rent had been paid by the son, Selim Mia. The trial Court therefore found that the plaintiffs had been represented by Selim Mia and dismissed their suit. In the lower Appellate Court, the question of representation appears to have been argued on the basis of Section 146-A, Ben. Ten. Act, and that Court also found that the plaintiffs had been represented by Selim Mia within the terms of Sub-clause (ii) of Sub-section (3) of Section 146-A. The lower Appellate Court also held that the plaintiffs claim was barred under a special law of limitation. In this Court two points are urged, first that the lower Appellate Court should not have allowed the question of limitation to be canvassed before it, and secondly that Section 146-A, Ben. Ten. Act, does not apply to certificate proceedings.

(2.) As regards the question of limitation, we think that the lower Appellate Court was in error. The learned Judge discussed Section 3 and Section 29, Limitation Act, and Order 8, Rule 2, Civil P.C. It is to be noted however that the case is really governed by Section 184, Ben. Ten. Act, although this fact in itself appears to make no difference to the decision. Section 184, Sub-section (1) provides that every suit instituted after the period of limitation provided in Schedule 3 shall be dismissed although limitation has not been pleaded. We are of opinion that this does not overrule the provisions of Order 8, Rule 2 which require that the defendant must raise by his pleading all matters which raise issues of fact not arising out of the point, as for instance, limitation. Section 184 would requires suit to be dismissed if in fact it has been filed after the period of limitation and would apply even in an ex parte case if the facts appeared, but it is clearly evident from the judgment of the lower Appellate Court itself that in this case the facts were not clear and undisputed and indeed he discussed the evidence at some length in order to arrive at a conclusion that the suit must necessarily have been filed, at any rate, a few days after the period of limitation had expired, and he uses for the purpose some of the evidence that appeared in the case. We do not think, this was the proper way of treating the matter and we consider this was clearly a case in which the question of limitation should not have been allowed to be raised as the necessary facts had not been pleaded and so attention had not been drawn to them at the time of the trial.

(3.) Coming next to the question of representation, it is to be noted that the trial Court did not rely on specific terms of Section 146-A, Ben. Ten. Act. This Section was enacted in the Amendment Act of 1928, and in fact substantially codified the previous law on the subject, at any rate as regards decrees. We think however for reasons that will appear hereafter that it must be conceded that it cannot be held to apply in terms to certificate proceeding and that if it is desired by the Legislature that it should be so, some specific reference to the Bengal Public Demands Recovery Act, 1913, is necessary in that Section. The decision on the question turns on the interpretation of Section 20, Bengal Public Demands Recovery Act, 11913. Sub- section (1) of that Section provides that: Where property is sold in execution of a certificate there shall vest in the purchaser merely the right, title and interest of the certificate debtor at the time of the sale even though the property itself be specified.