GADADHAR PATRA Vs. BHOLANATH CHAUDHURY

JUDGEMENT

(1.) This appeal arises out of a suit for a declaratory decree, the declaration sought being that it may be held that the deed alleged to have been executed by Hriday and Bhabani Mahapatra on 25 Jaistha 1226, B.S. on a plain paper as disclosed by the defendants is wholly false, that the jote included in Khata No. 176 in the names of the defendants is not held in mukarrari right and that the rent of the said jote is liable to enhancement.

(2.) The plaintiff is a purchaser of an intermediate tenure at a rent sale and the defendants are occupancy raiyats of a holding bearing Khata No. 176 under that tenure. The rent sale at which the plaintiff purchased the tenure was held on 2nd September 1929, in execution of a decree obtained by the superior landlords who are patnidars against the intermediate tenure-holders. The plaintiff's case is that after purchasing the tenure he discovered that in the last Record of Rights which was finally published on 4 July 1921, the defendants were recorded in Khata No. 176 as holding a mukarrari right on a fixed rent of Rs. 4, by virtue of a deed executed on 25 Jaistha 1226, B.S. by Hriday and Bhabani Mahapatra. The plaintiff challenges the genuineness of that deed and also the correctness of the entry in the Record of Rights. The suit was contested on the grounds inter alia that the said deed is genuine and was executed by the then patnidars Hriday and Bhabani Mahapatra, that the under tenure which the plaintiff claims to have purchased had no real existence at all but was merely created on paper with an ulterior object, that the rent sale was invalid and that the suit is barred by limitation. The learned Subordinate Judge who tried the suit decreed it, and on appeal, his decision has been affirmed by the learnsd District Judge. The defendants have preferred this second appeal. Both the Courts below have found that the deed dated 25 Jaistha 1226, B.S. is not genuine and that the plaintiff's purchase at the rent sale is valid. These findings have not been seriously challenged in this appeal, and as findings of fact, they must stand.

(3.) The only question urged in this appeal is that of limitation. It is contended that so far as the prayer for declaration that the deed dated 25 Jaistha 1226, is not genuine is concerned, it is barred by the three years rule of limitation provided in Art. 93, Lim. Act, and so far as the other declarations are concerned, they are barred by the six years rule of limitation provided in Art. 120 the respective periods of limitation being counted from the date of the final publication of the Record of Rights that is 4 July 1921. Art. 93 is as follows: