Gokaran Prasad Singh vs Malik Waris Ali and Others

Ross, J.—This is a suit about the title to a share in Mouza Kendua. The plaintiff''s title is derived from a purchase on the 27th August 1913 from the defendant No. 7 who himself had purchased from the defendant No. 8 on the 23rd January 1907. The title of defendants Nos. 1 to 5 is derived from a purchase from defendant No. 6, who, in his turn, was a purchaser of the share in execution of a certificate for arrears of Road-cess held on the 3rd September 1906. The plaintiff claimed that the sale was null and void for non-service of notice u/s 10 of the Public Demands Recovery Act. The defence was that the sale was regular. The suit was instituted on the 30th August 1918. The Munsif dismissed the suit but the learned Subordinate'' Judge gave the plaintiff a decree. In appeal, on behalf of the defendant, three points were taken: the first was, that the Subordinate. Judge has wrongly thown upon him the onus of proving due service of notice u/s 10. Apart from the fact that the question of burden of proof is immaterial at this stage, the decision of the learned Subordinate Judge was right, as was held in Nemai Charan De v. Secretary of State [1918] 45 Cal. 496. The second contention was that, even if the burden of proof was on the defendant, it has been discharged. This rates a pure question of fact which has been found in favour of the plaintiff by the Subordinate Judge and, that finding is binding upon this Court. The third and the principal contention was, that the suit was barred by time by reason of the provisions of Section 45 of the Bihar and Orissa Public Demands Recovery Act, 1914. That Section provides that: a suit to set aside a sale under the Act must be brought within not more than one year from the date on which the possession of the property was delivered to the purchaser. The question is, whether the present suit is governed by that Act or not. The learned Counsel for the respondent contends that, before the passing of the Act, he had 12 years within which to bring the suit and that the suit was brought within 12 years of the date of the sale; and that, by the time the Act was passed, if the period of limitation therein prescribed is the period governing this suit, his vested right of suit was entirely taken away, because the condition under which a suit could be brought was impossible of fulfilment. The Act, was passed on the 1st of July 1914 and came into force in November of that year. It is argued that as the right of suit has not been taken away in express words, the plaintiff is in the same position as regards limitation as if the Act has not been passed. In Gopeshwar Pal v. Jiban Chandra [1914] 41 Cal. 1125 it was laid down that it is an established axiom of construction that though procedure may be regulated by the Act for the time being in force, still the intention to take away a rested right, without compensation or any saring is not to be imputed to the Legislature unless it be expressed in unequivocal terms. In dealing with the effect of the third Schedule to the Bengal Tenancy Act it was observed that it was not a fair reading of the enactment to hold that it was intended to impose an impossible condition under pain of the forfeiture of a vested right, and that their Lordships could only construe the amendment as not applying to cases where its provisions cannot be obeyed. The law, as amended, may regulate the procedure in suits in which the plaintiff could comply with its provisions but cannot govern suits where such compliance was from, the firt impossible. It was pointed out that there were two positions; where, in accordance with its provisions, a suit could be brought after the passing of the amendment, it may be that the amendment would apply, but where it could not, then the amendment would have no application. This second position had previously been laid down in the ease of Manjuri Bibi v. Akkel Mahmud 17 C.W.N. 889. There is no doubt in the present case as to which of these two is the position. The suit could not have been brought after the passing of the Amending Act. Consequently, the amendment would have no application. It was contended by the other side that the effect of the amendment was to give the plaintiffs one year from the date when the Act came into force. But I see no ground for such a contention. That period of limitation is purely fanciful. The limitation must be either that which prevailed before the Amending Act or that prescribed in the Amending Act itself; that is to say, in the latter case, not more than one year from the date on which the possession of the property was delivered to the purchaser, and not one year from the date on which the Act came into force. It must, therefore, follow that this suit is not governed, as regards limitation by the Act of 1914. Consequently, this ground also fails and the appeal must be dismissed with costs.