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Biswessor Sen and anr. Vs. Imamudii Chowdhuri and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in29Ind.Cas.833
AppellantBiswessor Sen and anr.
Respondentimamudii Chowdhuri and ors.
Cases ReferredLala Soni Ram v. Kanhaiya Lal
Excerpt:
limitation - suit or proceeding, limitation applicable to. - .....of the privy council that 'the high court rightly held that the law of limitation applicable to a suit or proceeding is the law in force at ihe date of the institution of the suit or proceeding, unless there is a distinct provision to the contrary.' adopting that principle it appears that the plaintiff is right in contending that he is entitled to the benefit of article 138 as it now stands and that he has twelve years from the date from which it was confirmed instead of ffhe date on which the sale actually took place. i, therefore, set aside the decision of the learned subordinate judge holding that the suit was barred by limitation, and remand the appeal to be heard by that court in regard to the other contentions.2. as nobody appears on behalf of the respondents the plaintiff will.....
Judgment:

Walmsley, J.

1. The plaintiff brought a suit to recover khas possession of some land. The Court of first instance held that the suit was not barred by limitation. The learned Subordinate Judge, however, held that it was barred by limitation. The matter turns upon the question whether the law applicable to the case is the present Limitation Act or the Act of 1877. The argument of the lower Appellate Court is that according to the old Limitation Act, the defendants' possession became adverse to the plaintiff from the date of the sale and that, therefore, when the suit was instituted more than twelve years had already expired. So that the defendant's title by adverse possession was complete. The plaintiff contends that he is entitled to the benefit of the new Act and he quotes in support of his view the case of Lala Soni Ram v. Kanhaiya Lal 19 Ind. Cas. 291 : 17 C.L.J. 488 : 17 C.W.N. 605 : 11 A.L.J. 389 : 13 M.L.T. 437; (1913) M.W.N. 470 : 15 Bom. L.R. 489 : 25 M.L.J. 131 : 35 A. 227 (P.C.) : 40 I.A. 74. In that case it was said by their Lordships of the Privy Council that 'the High Court rightly held that the law of limitation applicable to a suit or proceeding is the law in force at ihe date of the institution of the suit or proceeding, unless there is a distinct provision to the contrary.' Adopting that principle it appears that the plaintiff is right in contending that he is entitled to the benefit of Article 138 as it now stands and that he has twelve years from the date from which it was confirmed instead of ffhe date on which the sale actually took place. I, therefore, set aside the decision of the learned Subordinate Judge holding that the suit was barred by limitation, and remand the appeal to be heard by that Court in regard to the other contentions.

2. As nobody appears on behalf of the respondents the plaintiff will bear his own costs in this Court, whatever the result may be.


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