G.N. Das, J.
1. This is an appeal against a judgment of Mookerjee J. remanding the plaintiff's suit for further consideration.
2. The only question which was in controversy before Mookerjee J. and which is now in dispute before us relates to a question of limitation.
3. In order to understand the implication of the arguments addressed at the Bar, it is necessary to state the nature of the relief claimed by the plaintiff in his suit and the, facts which preceded it.
4. The disputed plots are C.S. dags Nos. 270 and 274. Plot No. 270 is stated in the plaint schedule to be a homestead plot which was held by the defendant's predecessor Upendra Nath Mukherji as a mokarari raiyat under the proprietors of touzi No. 3 of the 24-Parganas Collectorate. Plot. No. 274 is stated in the plaint schedule to beSali (arable land) which was held, by the said Upendra Nath Mukherji in occupancy right under 'the said touzi No. 3 of the 24-Parganas Collectorate. It appears that Upendra Nath Mukherji sold the disputed items to the defendant in March, 1939. The defendant thereafter proceeded to erect certain structures for the purposes of the electric factory of the defendant. No steps were however taken by Upendra Nath Mukherji either for the issue of an injunctionor for relief by way of ejectment although as the Courts below have found, he had full knowledge of the erection of the structures, in theyear 1939. On 24-9-1942, the said touzi No. 3was sold for arrears of revenue and was purchased by the plaintiff. The plaintiff instituted the present suit on 3-11-1943, that is, within less than two years of the date of the revenue sale. In the plaint the plaintiff prayed for a permanent injunction restraining the defendant from erecting any pucca structures or from changing the character of the land which was said to be agricultural. The plaintiff also prayed for a temporary injunction during the pendency of the suit. The plaintiff also prayed for a mandatory injunction requiring the defendant to remove the pucca structures already erected or any other structures which may be put up by the defendant during the pendency of the suit.
5. The suit was contested by the defendant and one of the pleas taken was the plea of limitation.
6. The learned Munsif, and Court, Alipur, whotried the suit repelled the defendant's contention and decreed the plaintiff's suit.
7. On appeal by the defendant the learned 1st Additional District Judge, Alipur, 24-Parganas, reversed the decree of the trial Court and dismissed the plaintiffs suit on the ground of limitation.
8. Against the decision of the lower appellate Court an appeal was taken to this Court. Mookerjee J. who heard the appeal was of the opinion that limitation under Article 32, Limitation. Act ran from the date of the plaintiff's purchase and that as such the suit was not barred and in this view remanded the case for further consideration by the Court below.
9. It is the propriety of this judgment which is in question in the Letters Patent appeal.
10. It is not disputed that the proper Article which governs the present case is Article 32 of Schedule 1, Limitation Act. it is also common ground that so far as the defaulting owner of the touzi is concerned, his right to the relief contemplated by Article 32, Limitation Act was barred by lapse of time. The question which has been debated before us is whether Article 32 can avail the defendant as against the plaintiff who is the purchaser of the touzi within which the disputed plots lie at a sale for arrears of revenue.
11. As I read the judgment of the learned Judge, it seems to me that the learned Judge was of the opinion that as the plaintiff is not the successor-in-interest of the defaulting Zemindar and as by the revenue sale he acquired the interest of the Crown subject to payment of Government revenue no act or inaction on the part of the defaulting proprietor could stand in the way of his getting relief in this suit. It seems to me that this line of reasoning proceeds on a misconception.
12. Under Section 37 of Act 11 of 1859 the purchaser at a sale for arrears of revenue acquires the estate free from all incumbrances which may have been imposed upon the estate since the date of the settlement and is entitled to avoid or to annul all under-tenures, subject to the exceptions mentioned in the section. It is not suggested that the act of the defendant in putting up the structures on the disputed property was an incumbrance within the meaning of Section 37. It cannot therefore be said that merely because the plaintiff purchased the touzi at a revenue sale he acquired the right to take the property free from the burden imposed upon the property by the erection of the structures. The right which the purchaser acquires under Section 37 has, in my opinion, nothing to do with the applicability or otherwise of Article 32, Limitation Act. Article 32 does not specify any extension of period of limitation provided therein in case of a revenue sale purchaser. Article 32 provides a period for limitation for relief against a person who having a right to use the property for specific purposes diverts the same for other purposes. In such cases time begins to run from the date when the perversion first comes to the knowledge of the person injured by the perversion. The date, from which limitation runs is a specific date namely, the time when the person injured first derives his knowledge of the perverted user and not from any other subsequent date. Article 32 prescribes a short period of limitation and it cannot be suggested that fresh periods of limitation would run against a subsequent purchaser at a revenue sale of the property or against successive purchasers at a revenue sale of the property.
It was contended that as the present plaintiff is not the successor-in-interest of the defaulting proprietor during whose tenure the perversion first took place, Article 32 would again commence to runagainst him when the purchaser himself acquires knowledge of the perversion for the first time. If this view is accepted, the result would be that years afterwards, whenever the property would be put up to revenue sale, the purchaser would be entitled to avail of the remedy against a perverted user, although limitation in respect of the perverted user may have commenced to run when the perversion first came to the knowledge of the defaulting proprietor. The cases referred to on behalf of the respondent merely explain the effect of section 37 of the Revenue Sale Law in cases of suits for ejectment instituted against a person in adverse possession of a part of the estate which has been brought to revenue sale. The general observations made in the judgment referred to must be read in the light of the facts of those cases. In my opinion it would be illogical to apply those general observations to explain the import of Article 32, Limitation Act. Nor is it, in my opinion, proper to apply the observations which are made in connection with the applicability of the doctrine of 'res judicata' to purchasers of revenue sale in order to understand the meaning of Article 32, Limitation Act. Article 32, Limitation Act bars the remedy in case of a perverted user of the property in question and for that purpose the Code has prescribed a definite period of time from which limitation would commence to run that period being the date when the perverted user first comes to the knowledge of the person injured thereby. This must refer, in my opinion, to the person whose rights had been infringed by the perverted user at the date of the perversion. In this view, limitation would commence to run when the person whose rights were first infringed by the act of perversion came to know of such perversion for the first time and not from any later date. The learned Judge's view that limitation would run from the date of the revenue sale is, in my opinion, opposed to the clear terms of Article 32, Limitation Act. The view taken by the learned Judge cannot therefore be accepted and the plaintiff's prayer for an injunction, permanent or mandatory, as prayed for in the plaint, must be held to be barred under Article 32, Limitation Act. The suit must therefore be dismissed on this ground.
13. The result is that this appeal is allowed. The Judgment of the learned Judge is set aside and the plaintiff's suit dismissed. In view of the facts of this case, we direct that the parties would bear then own costs in all Courts.
14. I agree.