Tripura High Court
The State Of Tripura vs Sri Gopal Chandra Das on 5 June, 2017
Author: S. Talapatra
Bench: S. Talapatra
IN THE HIGH COURT OF TRIPURA
AGARTALA
RSA No.50 of 2013
1. The State of Tripura,
represented by the Secretary to the
Government of Tripura, Revenue
Department, New Secretariat
Building, P.O. Secretariat Complex,
PIN-799010, Agartala, West Tripura
2. The District Magistrate & Collector,
West Tripura, Agartala, PIN-799001
3. The Sub-Divisional Magistrate,
Sadar, Agartala, West Tripura, PIN-799001
....... Appellants
-Versus-
1. Sri Gopal Chandra Das,
son of late Narendra Chandra Das,
resident of village -Aralia, P.O.
Agartala College, PIN-799004, P.S.
East Agartala, District - West Tripura
2. The Pradhan,
Uttar Champamura Gaon Panchayet,
P.O. Ranirbazar, PIN-799035, P.S.
East Agartala, District - West Tripura
.............Respondents
BEFORE THE HON'BLE MR. JUSTICE S. TALAPATRA For the appellants : Mr. D. Chakraborty, Sr. Advocate Mr. H. Laskar, Advocate For the respondents : Mr. S.M. Chakraborty, Sr. Advocate Ms. P. Sen, Advocate Date of hearing : 03.02.2017 Date of delivery of : 05.06.2017 Judgment & Order Yes No Whether fit for reporting: √ [2] JUDGMENT & ORDER By this appeal filed under Section 100 of the CPC, the judgment dated 18.05.2012 delivered in Title Appeal No.35 of 2012 by the Additional District Judge, West Tripura, No.4, Agartala has been challenged.
[2] At the time of admitting the appeal, the following substantial question of was formulated for purpose of hearing:
―Whether the Civil Court has jurisdiction to restrain the Government by a decree of perpetual injunction preventing it from exercising its statutory power of eviction of the plaintiff from the suit land?‖ Even though the leave was given to the appellants to raise any other substantial question of law, but Mr. D. Chakraborty, learned senior counsel appearing for the appellants has not proposed any other substantial question of law. Hence, the substantial question of law as above, alone would be considered in the perspective.
[3] The respondent No.1 filed the suit for declaration of right, title and interest over the suit land as described in the Schedule-B to the plaint, based on adverse possession and also for a decree of perpetual injunction restraining the defendants and their representatives from entering into the suit land or from disturbing the peaceful possession of the plaintiff over the suit land.
[4] The pleaded case in the suit being Title Suit No.02 of 2012 filed in the court of the Civil Judge, Jr. Division, Court No.2, RSA No.50 of 2013 Page 2 of 21 [3] Agartala, West Tripura is that the suit land is a tilla class of land and was covered by jungle in the year 1952. The father of the plaintiff, namely Narendra Chandra Das came to Tripura from erstwhile East Pakistan immediately after the partition of the country. The father of the plaintiff occupied the suit land and asserted his right continuously by felling trees, selling woods and growing different types of seasonal crops. According to the plaintiff, the said possession was hostile and open to the knowledge of all concerned including the appellants. In the month of June, 1992, the father of the plaintiff expired. Before his death, his father handed over the possession of the said land on 01.01.1992 to his two sons viz. the plaintiff and his younger brother, namely Rakhal Chandra Das without any break or discontinuation in the possession. The plaintiff and his brother continued in the possession by exercising their right. Even though the plaintiff is in possession over the suit land but his name has not been reflected in the new Khatian bearing No.1/71 of Mouza-
Uttar Champamura against the land measuring 1.96 acres covered by the old plot No.4639 corresponding hal plot No.7846. On 18.02.1995, the plaintiff and his brother were served with notice dated 18.02.1995 asking them to apply for allotment of the said land, if they so desired but they did not file any application for allotment as the title was matured in their favour by way of adverse possession. The defendant No.4, the Upa-Pradhan of Uttar Champamura Gaon Panchayet, the respondent No.2 herein, entered into the suit land on 30.12.2011 with few other persons.
The defendant No.4 informed the plaintiff that the Government RSA No.50 of 2013 Page 3 of 21 [4] has decided to allot the said land to some other persons and thus, he came to inspect the position of the land. They took the measurement of the land. On apprehension that the Government may take the possession from them by fore, the plaintiff filed the suit.
The defendants No.1,2 & 3, the appellants herein, filed a joint written statement stating that the Schedule-A land as shown in the plaint is Khas land (the government land) measuring 1.96 acres. They admitted that in the Khatian No.1-1256 under plot No.4639, the name of the predecessor of the plaintiff was mentioned in the 'remarks' column as the forceful occupier since the year 1964. As the father of the plaintiff took possession of the suit land illegally and unauthorisedly, the name of the plaintiff's father had entered in the 'remarks' column as the forceful occupier. But they denied the claim of adverse possession against them. The appellants have asserted in their written statement that since the father of the plaintiff was not the owner of the land, he had no right to cause partition of the land and to hand over the possession to the plaintiff or his brother. It has been also asserted that in the subsequent Khatian, the possession of the plaintiff or his brother has not been recorded. Thus, it cannot be stated that the plaintiff and his brother has been continuously possessing the said land. It has been admitted as well that on 03.12.2011, the defendant No.4, the respondent No.2 in this appeal, entered in the suit land for recording measurement. The suit was dismissed by the judgment dated 10.06.2012 as, according to the trial court, RSA No.50 of 2013 Page 4 of 21 [5] the plaintiff has failed to prove the day of commencement of the adverse possession or the overt act and the continuous hostile possession over the suit land.
Being aggrieved by the judgment dated 10.06.2012, the plaintiff, the respondent No.1 herein, filed an appeal under Section 96 of the CPC. By the impugned judgment dated 18.05.2013, the appellate court has observed as under:
―It is also evident that appellant and his brother since 1952 during the period of their father entered into the suit land as described in the Schedule A of the plaint and their father died in the year 1992 and since their entry and possession over the A schedule land without any break or discontinuation till today and they were/are enjoying the A schedule land by planting fruit bearing trees and also appellant along with his younger brother grow paddy and jute in the said land by engaging labourers to the knowledge of all concerned including the respondents and enjoying the said land in the same manner as their father enjoyed it since his entry into the said land.
It is also evident that in the year 1995 the Survey and Settlement Department issued a notice (Exbt.3) in the name of the appellant and his younger brother for justifying the eligibility in getting allotment over the A-Schedule land. Be that as it may, it is clear that appellant and his younger brother are in exclusive possession over the A-schedule land at 50:50 ratio and out of which appellant claims his possession over the B-schedule land. The appellant filed original Title Suit in the year 2012. Such being a position, it can come to a conclusion that the appellant did some overt act which were/are inconsistent with the title of the rightful owner and his possession over the schedule-B land was/is open and undisturbed. It is also clear that the factum of possession was/is known to other parties (respondents). The appellant also established his nature of possession over the suit land.‖ [5] Based on such observation, the judgment dated 10.06.2012 is set aside and consequent therefrom, the suit has been decreed. It has been declared by the impugned judgment that the plaintiff's title over the suit land as described in the B schedule of the plaint has matured by adverse possession. The right to recover has been extinguished by prescription. The RSA No.50 of 2013 Page 5 of 21 [6] respondents No.1 to 4 and their agents have been permanently restrained from interfering with the possession of the suit land.
[6] Mr. D. Chakraborty, learned senior counsel appearing for the appellants has submitted that the civil court cannot pass such order of perpetual injunction against the appellants No.1,2 & 3 inasmuch as Section 15 of the Tripura Land Revenue and Land Reforms Act, 1960 [the TLR and LR Act in short] provides that 'any person who occupies or continues to occupy any land belonging to Government without lawful authority shall be regarded as a trespasser and may be summarily evicted therefrom by the competent authority and any building or other construction erected or anything deposited on such land, if not removed within such reasonable time as such authority may from time to time fix for the purpose, shall be liable to be forfeited to the Government and to be disposed of in such manner as the competent authority may direct. Provided that the competent authority may, in lieu of ordering the forfeiture of any such building or other construction, order the demolition of the whole or any part thereof.' It has been further provided that 'such trespasser shall also be liable by way of penalty to pay a sum which may extent to six times the annual assessment on such land as may be specified by the competent authority and such sum shall be recoverable in the same manner as an arrear of land revenue.' [7] According to Mr. Chakraborty, learned senior counsel appearing for the appellants, the TLR & LR Act is a special statute RSA No.50 of 2013 Page 6 of 21 [7] and that is not encumbered by Section 29 of the Limitation Act which provides as under:
―29. Savings.--
(1) Nothing in this Act shall affect section 25 of the Indian Contract Act, 1872 (IX of 1872).
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.
(3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law.
(4) Sections 25 and 26 and the definition of ‗easement' in section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882 (V of 1882), may for the time being extend.‖ [8] Mr. Chakraborty, learned senior counsel appearing for the appellants has further contended that the provisions contained in Sections 4 to 24 (inclusive) shall only apply in so far as, and to the extent to which, they are not expressly excluded by such special or local law. Mr. Chakraborty, learned senior counsel has proceeded to submit that Sections 4 to 24 (inclusive) has not been excluded by the TLR and LR Act, 1960. Based on this interpretation, Mr. Chakraborty, learned senior counsel has proceed to submit that Article 112 of the Limitation Act does not have any application in view of Section 15 of the TLR and LR Act.
Such power is not regulated by any provision of the Limitation Act.
Therefore, the impugned judgment is grossly illegal.
RSA No.50 of 2013 Page 7 of 21 [8][9] Mr. S.M. Chakraborty, learned senior counsel assisted by Ms. P. Sen, learned counsel appearing for the respondent No.1 has contended that the interpretation of Section 29 of the Limitation Act as advanced by Mr. D. Chakraborty, learned senior counsel appearing for the appellants, is a purposive interpretation contrary to the substantive interpretation inasmuch as in the TLR & LR Act, no limitation has been prescribed at all for instituting the suit/appeal in respect of title. Sub section 2 of Section 29 of the Limitation Act, according to Mr. Chakraborty, learned senior counsel appearing for the respondent No.1, has to be read in the context that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such periods were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. But in the circumstances where no such prescription is there whether only the Sections 4 to 24 (inclusive) would apply? Mr. Chakraborty, learned senior counsel appearing for the respondent No.1 has emphatically asserted that this proposition cannot be accepted.
Since the solitary substantial question is structured on that interpretation for questioning the impugned judgment, let us RSA No.50 of 2013 Page 8 of 21 [9] examine the scope and ambit of Section 29 (2) of the Limitation Act. For applying Section 29(2) of the Limitation Act, 1963 to the fact of a given case and for importing the provisions containing in Sections 4 to 24 of the Limitation Act, two requirements have to be satisfied viz:
(i) There must be a provision for period of limitation in the special or local law in connection with any suit, appeal or application.
(2) Such prescription of the period of limitation under such special or local law should be divergent from the period of limitation prescribed by the Schedule of the Limitation Act, 1963.
If the above conditions are satisfied, then the consequences contemplated by Section 29(2) would automatically follow. These consequences are as follows:
(i) In such a case, Section 3 of the Limitation Act, 196 would apply as if the period prescribed by such special or local law was the period prescribed by the Schedule.
(ii) For determining any period of limitation prescribed for such special or local law for a suit, appeal or application all the provisions containing in Sections 4 to 24 of the Limitation Act, 1963 (inclusive) will apply in so far as and to the extent they are not expressly excluded by such special or local law.
In this regard, a decision of the apex court in Mukri Gopalan vs. Cheppilat Puthanpurayil Aboobacker, reported in RSA No.50 of 2013 Page 9 of 21 [10] AIR 1995 SC 2272 may be referred. In Mukri Gopalan (supra), where the apex court has observed as under:
―10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the schedule as the schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribes nil period of limitation for such an appeal. It is now well settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this court in the case of Vidyacharan Shukla Vs. Khubchand Baghel and Ors.:
AIR 1964 SC 1099, when the first schedule of the Limitation Act prescribes no time limit for a particular appeal, but the special law prescribes a time limit for it, it can be said that under the first schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permits the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.
11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that Section, all the provisions of Sections 4 to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act.
Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. That was the view taken by the minority decision of the learned single Judge of Kerala High Court in Jokkim Fernandez Vs. Amina Kunhi Umma : AIR 1974 Kerala 162. The majority did not agree on account of its wrong supposition that appellate authority functioning under Section 18 of the Rent RSA No.50 of 2013 Page 10 of 21 [11] Act is a persona designata. Once that presumption is found to be erroneous as discussed by us earlier, it becomes at once clear that minority view in the said decision was the correct view and the majority view was an erroneous view.
12. It is also necessary to note the change in the statutory settings of Section 29(2) as earlier obtained in the Indian Limitation Act, 1908 and the present Limitation Act of 1963. Section 29(2) as found in Indian Limitation Act, 1908 read as follows:-
‗Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefor, in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law:-
(a) the provisions contained in Section 4, Sections 9 to 18, and Section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and
(b) the remaining provisions of this Act shall not apply.'
13. As per this sub-section, the provisions contained in certain sections of the Limitation Act were applied automatically to determine the periods under the special laws, and the provisions contained in other sections were stated to apply only if they were not expressly excluded by the special law. The provision (Section 5) relating to the power of the court to condone delay in preferring appeals and making applications came under the latter category. So if the power to condone delay contained in Section 5 had to be exercised by the appellate body it had to be conferred by the special law. That is why we find in a number of special laws a provision to the effect that the provision contained in Section 5 of the Limitation Act shall apply to the proceeding under the special law. The jurisdiction to entertain proceedings under the special laws is sometimes given to the ordinary courts, and sometimes given to separate tribunals constituted under the special law. When the special law provides that the provision contained in Section 5 shall apply to the proceedings under it, it is really a conferment of the power of the court under Section 5 to the Tribunals under the special law-whether these tribunals are courts or not. If these tribunals under the special law should be courts in the ordinary sense an express extension of the provision contained in Section 5 of the Limitation Act will become otiose in cases where the special law has created separate tribunals to adjudicate the rights of parties arising under the special law. That is not the intention of the legislature.
14. In view of the aforesaid provision of Section 29(2) as found in Indian Limitation Act, 1908,Section 5 would not have applied to appellate authorities constituted under Section 18 as Section RSA No.50 of 2013 Page 11 of 21 [12] 5 would not get attracted as per the then existing Section 29(2) of Indian Limitation Act, 1908 which did not include Section 5 as one of the provisions to be applied to such special or local laws. That appears to the reason why during the time when the Limitation Act,1908 was in force, the Rent Act of 1959 which is the forerunner of present Rent Act of 1965 contained a provision in Section 31 of that Act which read as under:-
‗31. Application of the Limitation Act:- The provisions of Section 5 of the Indian Limitation Act, 1908 (9 of 1908), shall apply to all proceedings under this Act;'
15. After repealing of Indian Limitation Act, 1908 and its replacement by the present Limitation Act of 1963 a fundamental change was made in Section 29(2). The present Section 29(2) as already extracted earlier clearly indicates that once the requisite conditions for its applicability to given proceedings under special or local law are attracted, the provisions contained in Sections 4 to 24 both inclusive would get attracted which obviously would bring in Section 5 which also shall apply to such proceedings unless applicability of any of the aforesaid Sections of the Limitation Act is expressly excluded by such special or local law. By this change it is not necessary to expressly state in a special law that the provisions contained in Section 5 of the Limitation Act shall apply to the determination of the periods under it. By the general provision contained in Section 29(2) this provision is made applicable to the periods prescribed under the special laws. An express mention in the special law is necessary only for any exclusion. It is on this basis that when the new Rent Act was passed in 1965 the provision contained in old Section 31 was omitted. It becomes therefore apparent that on a conjoint reading of Section 29(2) of Limitation Act of 1963 and Section 18 of the Rent Act of 1965, provisions of Section 5 would automatically get attracted to those proceedings, as there is nothing in the Rent Act of 1965 expressly excluding the applicability of Section 5 of the Limitation Act to appeals under Section 18 of the Rent Act.‖ [Emphasis added] [10] Further in Gopal Sardar vs. Karuna Sarkar, reported in (2004) 4 SCC 252, the apex court has held as under:
―9. An important departure is made in Section 29, sub- section (2) of Limitation Act of 1963.Under the Indian Limitation Act, 1908 Section 29(2)(b) provided that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law the application of Section 5 of the Limitation Act was specifically and in clear terms excluded, but under Section 29(2) of the present Limitation Act Section 5 shall apply in case of special or local law to the extent to which they are not expressly excluded by such special or local law. In other words, application of Section 5 of the Limitation Act stands excluded only when it is expressly excluded by the special or local law. The emphasis of the RSA No.50 of 2013 Page 12 of 21 [13] argument by the learned counsel, who argued for the proposition that Section 5 of the Limitation Act is applicable to an application made for enforcement of rights of pre-emption under Section 8 of the Act was on the ground that the Act has not expressly excluded the application of Section 5 of the Limitation Act.
10. In Hukumdev Narain Yadav vs. Lalit Narain Mishra : (1974) 2 SCC 133, a Bench of three learned Judges of this Court, dealing with election petition under the Representation of People Act on the point of limitation for filing an election petition, after examining the provisions of the Representation of the People Act and Section 29(2) of the Limitation Act, has held thus:-
‗17. ..... Even assuming that where a period of limitation has not been fixed for election petitions in the Schedule to the Limitation Act which is different from that fixed under Section 81 of the Act, Section 29(2) would be attracted, and what we have to determine is whether the provisions of this Section are expressly excluded in the case of an election petition. It is contended before us that the words ‗expressly excluded' would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. As usual the meaning given in the Dictionary has been relied upon, but what we have to see is whether the scheme of the special law, that is in this case the Act, and the nature of the remedy provided therein are such that the Legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view, even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. The provisions of Section 3 of the Limitation Act that a suit instituted, appeal preferred and application made after the prescribed period shall be dismissed are provided for in Section 86 of the Act which gives a peremptory command that the High Court shall dismiss an election petition which does not comply with the provisions of Sections 81, 82 or 117.' (emphasis supplied) This Court in Anwari Basavaraj Patil & Ors. vs. Siddaramaiah & Ors. :(1993) 1 SCC 636, again dealing with the election petition under Representation of People Act, after RSA No.50 of 2013 Page 13 of 21 [14] considering the relevant provisions of the Representation of People Act and Section 29(2) of the Limitation Act, took a view that the controversy was practically concluded on the question of applicability of Section 5 of the Limitation Act by the decision of this Court in the case of Hukumdev Narain Yadav: (1974) 2 SCC 133. Para 8 of the said judgment reads thus:-
‗8. In H.N.Yadav vs. L.N. Mishra :(1974) 2 SCC 133, this Court held that the words ‗expressly excluded' occurring in Section 29(2) of the Limitation Act do not mean that there must necessarily be express reference in the special or local law to the specific provisions of the Limitation Act, the operation of which is sought to be excluded. It was held that if on an examination of the relevant provisions of the Special Act, it is clear that the provisions of the Limitation Act are necessarily excluded then the benefits conferred by the Limitation Act cannot be called in aid to supplement the provisions of the Special Act. That too was a case arising under the Representation of People Act and the question was whether Section 5 of the Limitation Act is applicable to the filing of the election petition. The test to determine whether the provisions of the Limitation Act applied to proceedings under Representation of People Act by virtue of Section 29(2) was stated in the following words:
‗The applicability of these provisions has, therefore, to be judged not from the terms of the Limitation Act but by the provisions of the Act relating to the filing of election petitions and their trial to ascertain whether it is a complete code in itself which does not admit of the application of any of the provisions of the Limitation Act mentioned in Section 29(2) of that Act.' ‖ [Emphasis added] [11] In Fairgrowth Investment Ltd. vs. Custodian, reported in (2004) 11 SCC 472, the apex court has held as under:
―21. Reliance on the decision in Vidya Charan Shukla V. Khubchand Baghel : (1964) 6 SCR 129 by the appellant is equally misplaced. One of the issues raised in that case related to the question whether Section 116-A of the Representation of People Act, 1951 could be construed as expressly or impliedly excluding the provisions of the Limitation Act, 1908 as would otherwise be applicable under Section 29(2)(a) of that Act. The argument was that sub-section 3 of Section 116-A of the 1951 Act not only provided for a period of 30 days to prefer an appeal from the date of an order of the Tribunal to the High Court, but also provided that RSA No.50 of 2013 Page 14 of 21 [15] the High Court could entertain an appeal after the expiry of the period only if it was satisfied that the appellant had sufficient cause for not preferring an appeal within such period. The sub-section under consideration in Vidya Charan Sukhla : (1964) 6 SCR 129 was, therefore, substantially similar to Section 10(3) of the Act which is required to be construed by us. But that is where the similarity ends. The Court in that case held that the proviso did not amount to an express or implied exclusion because of the wording of Section 29(2)(a) of the Limitation Act, 1908.Section 29(2) (a) of the 1908 Act is dissimilar from the provisions of section 29(2)(b) of the Limitation Act, 1963. The earlier version of Section 29 made the provisions of Section 4, 9 to18 and Section 22 applicable to a Special or Local Act unless the Special or Local law expressly excluded such applicability. In other words, even in the absence of any exclusionary clause in the Special or Local Act, the other provisions of the Limitation Act including Section 5 would not apply. It was, therefore, held that the proviso in sub- section 3 of Section 116-A of the Limitation Act, 1951 had become necessary, because, if the proviso was not enacted, then by virtue of Section 29 (3)(a) of the Limitation Act, 1908 it would have excluded the operation of Section 5 of the Limitation Act with the result that even if sufficient cause for the delay existed the High Court would have been helpless to exclude the delay. It was held that proviso to sub-Section (3) of Section 116-A of the 1951 Act only restored the power under Section 5 denied to the Court under Section 29(2)(b) of the Limitation Act, 1908.
The same reasoning would not apply with regard to Section 29(2)(b) of the Limitation Act, 1963. Under the 1963 Act, Section 29(2)(b), inter-alia, provides that Section 5 of the Limitation Act would apply under that section to a Special/Local Act unless specifically excluded. The decision in Vidya Charan Shukla : (1964) 6 SCR 129 was noted in Hukumdev Narayan Yadav V. L.N. Mishra : (1974) 2 SCC 133 and it was held that this particular controversy was no longer relevant for determining whether such a special or local Act excluded the provisions of the Limitation Act within the meaning of the word ‗exclude' in Section 29(2)(b) of the Act. The decision of Hukumdev Narayan has in turn been considered and followed by this Court in Gopal Sardar V. Karuna Sardar: (2004) 4 SCC 252.
* * * *
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24. Finally, Section 29(2) of the Limitation Act speaks of application of the provisions contained in Sections 4 to 24 ‗only in so far as, and to the extent to which they are not expressly excluded by such special or local laws'. This language, together with our earlier reasoning, particularly with regard to L.S. Synthetics : (2004) 11 SCC 456, would answer the further question raised by the appellant, namely, whether the question of exclusion of the provisions of the Limitation Act must be separately considered with reference to different provisions of a Special/Local Act or in connection with the provisions of the Special/Local Act, as a whole, by affirmation of the first alternative. We are therefore not called upon to decide whether claims either RSA No.50 of 2013 Page 15 of 21 [16] preferred for the first time before the Special Court or transferred to the Special Court under Section 9- A(2) would attract the provisions of Sections 4 to 24 of the Limitation Act. It is enough for the purpose of this appeal to hold that Section 29(2) of the Limitation Act, 1963 does not apply to proceedings under Section 4(2) of the Special Courts (Trial of Offences Relating to Transactions in Securities), Act 1992. Since the appellant's petition of objection had been filed much beyond the period prescribed under that Section, the Special Court was right in rejecting the petition in limine. The appeal is accordingly dismissed but without any order as to costs.‖ [12] The apex court in Vidya Charan vs. Khub Chand, reported in AIR 1964 SC 1099 and in Venkataswara Rao vs. Narasimha Reddi, reported in AIR 1969 SC 872 has clearly held that if the special or local law is a complete code in the matte of limitation, then Section 29(2) is not applicable. In Vidya Charan (supra) the apex court has also observed that the first part and the second part of Section 29(2) is interconnected and the second part is not independent of the first part. Hence, the first part has to be read with the second part and only the condition precedent as laid down in the first part is satisfied, then only the second part would be applicable. The cumulative effect as impacted Section 3 and Section 29(2) of the Limitation Act, 1963 is that where a special or local law prescribes for the proceeding a period of limitation different from the provisions made in that regard in the Schedule of the Limitation Act, 1963 then Section 3 shall be applicable as if such period is the period prescribed by the schedule to the Limitation Act, 1963 and on ascertaining the existence of the period of limitation prescribed for any proceeding by special or local law, Sections 4 to 24 of the Limitation Act, RSA No.50 of 2013 Page 16 of 21 [17] 1963 shall apply to the extent to which there is no express exclusion.
[13] In Sendamarai Ammal vs. Vijaya Rajagopal Chettiar, reported in AIR 1984 Mad 122 the Madras High Court had occasion to observe as under:
―3. The matter may be looked at from another angle as well. After the de juremerger of the erstwhile French Indian Territory took place on 16-8-1962, under S. 4 of the Pondicherry (Administration) Act, 1962 which came into force on 6-12 1962, all the laws formerly in force in that territory were continued. In other words, the local law of limitation, which was in force in Pondicherry territory, continued to remain as such. Under S. 3(1) of the Limitation Act, subject to the provisions contained in Ss. 4 to 24 (inclusive), every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. S. 32 of the Limitation Act, 1963 repealed the Limitation Act, 1908 and not any other law. In S. 29(2) of the Limitation Act, 1963, provision has been made to the effect that where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed by the Schedule, the provisions of S. 3 shall apply, as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in S. 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which they are not expressly excluded by any special or local law. By S.0. 3118 of the Ministry of Law, Legislative Department, dated 29-10-1963, the First of January, 1964 was appointed as the date on which the Limitation Act, 1963 shall come into force. Even with reference to the Union Territory of Pondicherry which had by the Fourth Amendment to the Constitution, which came into force on 28-12-1962, had become part of India, the provisions of the Limitation Act, 1963 applied even to such a territory, as under cl. (2) of S. 1 of the Limitation Act it was provided that it extended to the whole of India, excepting the State, of Jammu and Kashmir. The cumulative effect of S. 3 and S. 29(2) of the Limitation Act, 1963 is that where any special or local law prescribed for a proceeding a period of limitation different from the provision made in that regard in the Schedule, then S. 3 shall be applicable, as if such period were the period prescribed by the Schedule and for ascertaining the period of limitation prescribed for any proceeding by any special or local law, Ss. 4 to 24 shall be applied to the extent to which there is no express exclusion of their applicability by such special or local law. Viewed in this light, it is clear that S. 29(2) read with S. 3 of the Limitation Act, 1963 would operate to preserve the period of limitation earlier available under the local law, viz., RSA No.50 of 2013 Page 17 of 21 [18] French Code Civil. It was not disputed that the period of limitation under the local law was 30 years and if that be so, the suit instituted on 28-6-1982 was in time. That S. 29(2) read with Sec. 3 of the Limitation Act, 1963 would have the effect of preserving the period of limitation made available earlier under the French Code Civil had been the subject matter of a few decisions. Goodman and Co.
v. R. S. Thirunavukkarasu, 1976-2 Mad LJ 221, had occasion to consider this question. There, the suit was laid for the recovery of possession of a radio set or a sum of Rs.450/- being the value thereof. The cause of action for the suit arose in July 1965, but the suit was instituted on 23-2-1971. Relying upon Arts. 14 and 68 of the Limitation Act, 1963, the trial Court dismissed the suit as barred by time. On appeal, Maharajan J. while considering the question of limitation, pointed out that the French Code Civil is a local law or special law within the meaning of S. 29 of the Limitation Act, 1963 and that the saving provisions in the Limitation Act, 1963 made it clear that all French enactments relating to limitations, which were in force in the Union Territory of Pondicherry, at the time the Limitation Act, 1963. came into force, continued to be in force with this difference, viz., that the periods of limitation prescribed in the local law must continue to apply as if such periods were the periods prescribed by the schedule to the Limitation Act, 1963, and for purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Ss. 4 to 24 (inclusive) shall apply on condition that those provisions are not expressly excluded by such special or local law as has been in force in the Union Territory of Pendicherry. Balasubrahmanyan J. in Chockalinga Mudaliar v. Manivanna Pillai : 1978-2 Mad LJ 544 considered the identical question. The suit in that ease was based on a sale bill dated 24-1- 1967 and the suit was filed on 23-6-1971, relying upon an endorsement of part payment dated 25-6- 1968. The endorsement was denied by the defendant who also pleaded that the claim was barred by time. That plea was upheld and the suit was dismissed. On appeal, an objection was raised that the question of limitation should be considered under the French Code Civil and not under the Limitation Act ,1963. This was rejected by the learned District Judge who was of the view that the French Code civil stood repealed by the Limitation Act, 1963, and it could not be invoked in respect of suits filed subsequent to 1-1-1964. In considering the correctness of this, the learned Judge was of the view that the Articles of Limitation laid down in the French Civil Code would answer the description of 'local law' in S. 29(2) of the Limitation Act, 1963 and it was held that by- reason of S. 4 (1) of the Pondicherry (Administration) Act, 1962 read with S. 3 and S. 29(2) of the Limitation Act, 1963, the limitation law embedded in the French Civil Code in Pondicherry would be preserved. In doing so, the learned Judge besides referring to Goodman and Co. v. Thirunavukkarasu : 1976-2 Mad LJ 221, relied upon two other decisions in J. A. Da P. Barreto v. A. V. de Fonseca : AIR 1969 Goa 124, and Christina D'Souza v. Zurana Pereira : AIR 1970 Goa 28. Against the decision in J. A. De P. Barreto v. A. V. De Fomseca : AIR 1969 Goa 124, an appeal was preferred to the Supreme Court and the decision of the Supreme Court is reported in Justiniano Augusto de Piedade Barreto v. Antonio Vicente Da Fonseeg :
RSA No.50 of 2013 Page 18 of 21 [19]AIR 1979 SC 984. In dealing with the applicability of the provisions of the Limitation Act, 1963 with reference to the territory of Goa, Daman and Diu incorporated as a Union Territory by the Constitution (Twelfth Amendment) Act, 1962, with effect from 20th Dec, 1961, the Supreme Court pointed out that there is only one general law of limitation for the entire country and it is the Limitation Act, 1963, and all other, laws would be either special or local laws and that the body of provisions in the Portuguese Civil Code dealing with the subject of limitation of suits etc, In the Union Territory of Goa, Daman and Diu is only a local law. In so holding, the Supreme Court observed, as follows (at p. 989) -
‗Now there is only one general law of limitation for the entire country and it is the Limitation Act, 1963. All other laws prescribing periods of limitation are either special or local laws. They are special laws if they prescribe periods of limitation for specified cases. They are local laws if their applicability is confined to specified areas. If S. 32 and S. 29(2) of the Limitation Act, 1963, are read together, it becomes clear that the only law of limitation that is repealed is the Limitation Act, 1908 and all other laws dealing with limitation, special or local are saved and are to be read into the Limitation Act, 1963.' We, therefore, arrive at the conclusion that the body of provisions in the Portuguese Civil Code dealing with the subject of limitation of suits etc., and in force in the Union Territory of Goa, Daman and Diu only is 'local law' within the meaning of S. 29(2) of the Limitation Act, 1963. As stated earlier these provisions have to be read into the Limitation Act, 1963 as if the Schedule to the Limitation Act is amended mutatis mutandis. No question of repugnancy arises. We agree with the Judicial Commissioner that the provisions of the Portuguese Civil Code relating to Limitation continue to be in force in the Union Territory of Goa, Daman and Diu.' This decision of the Supreme Court clearly supports the view that even as regards the Union Territory of Pondicherry, the law of limitation embedded in the French Code Civil would be a local law within the meaning of S. 29(2) and the provisions thereof have to be read into the Schedule to the Limitation Act, mutatis mutandis. Sourasamv Imacule Josephine v. Maria Joseph Rock: 1980-1 Mad LJ 255, also had occasion to deal with this question. The point that arose was whether with reference to the cause of action stated to have arisen in 1966, after the coming into force of the Limitation Act, 1963, Art. 57 of the Limitation Act, 1963 could be applied in bar of the suit, and Art. 2262 of the French Code Civil providing for a period of 30 years, could not be relied on to save the suit. Though the trial court disposed of the issue relating to limitation by saying that no material was forthcoming, the appellate Court took the view that after the execution the adoption deed on 2-1- 1962, the Limitation Act, 1963 had come into force in Pondicherry with effect from 1-1-1964 and as per Art. 57 of the Limitation Act only 3 years time was available to RSA No.50 of 2013 Page 19 of 21 [20] file a suit and the suit not having been so filed, was barred by limitation. In upholding the view taken by the appellate Court, it was pointed out that the cause of action for the suit arose only in 1966 and the Limitation Act, 1963 would apply and not the French Code Civil and that different considerations may arise if the cause of action had arisen before the Limitation Act, 1963 had come into force. It is unfortunate that the decisions in Chockalinga Mudaliar v. Manivanna Pillai : 1978-2 Mad LJ 544 and Justiniano Augusto De Piedade Barreto v.
Antonia Vicente Da Fonseca : AIR 1979 SC 984 , which had been rendered earlier had not been brought to the notice of the Court. The claim to the applicability of Art. 2262 of the French Code Civil was negatived on the ground that the cause of action arose only in 1966 when the Limitation Act, 1963 governed the right to institute the suit and not French Code Civil. With respect, this does not appear to be the right approach to the question of the applicability of the provisions of the Limitation Act, 1963 with reference to the areas where local laws of limitation had been in force which have been saved under S. 29(2) of the Limitation Act, 1963. It is pointed out that different considerations may arise if the cause of action had arisen before the Limitation Act, 1963 had come into force and to such a situation, the decision in Goodman and Co. v. Thirunax Ukkansu : 1976-2 Mad LJ 221 may apply so that the period of limitation prescribed in the local law will continue to apply as if that was the period prescribed by the Schedule to the Limitation Act, 1963. Even in the case referred to above, the cause of action arose in July, 1965 long after the coming into force of the provisions of the Limitation Act to the whole of India with effect from 1-1-1964. Similar was the position in Chockalinga Mudallar v. Manivanna Pillai : 1978-2 Mad LJ 544. The distinction pointed out with reference to the applicability of the in Goodman and Co., v. Thirunavukkarasu: 1976 - Mad LJ 221, does not therefore, hold good. In view, therefore, of the decisions in Goodman and Co. v. Thirunavukkarasu, 1976-2 Mad LJ 221, Chocalinga Mudaliar v. Alanivanna Pillai : 1978-2 Mad LJ 544 and Justiniano Augusto De Piedade Barret vs. Antonia Vicente Da Fonseca : AIR 1979 SC 984, the conclusion is irresistible that S. 29(2) of the Limitation Act, 1963 would operate to preserve the law of limitation embodied in the French Code Civil even after the passing of the Limitation Act, 1963, and that would mean that a period of 30 years would be available to the respondent to institute the suit for the recovery of the amount due under the mortgage dated 21-5- 1969 executed by the petitioner. It is necessary to point out that the court below was to error in proceeding to apply the residuary Art. 113 of the Limitation Act, 1963. The residuary Article can be applied only in the event of the inapplicability of any other Article and the circumstance that the mortgage deed contains personal covenant to pay cannot enable the court to invoke Art. 113 of the Limitation Act even at this stage. In any event, the question relating to the applicability of Art. 113 of the Limitation Act is really not very material in the view expressed earlier with reference to the preservation of Law of Limitation embodied in the French Code Civil and the earlier period of limitation being still available to the respondent to institute the suit. Therefore, looked at from any point of view, the court below was quite correct in the view it took RSA No.50 of 2013 Page 20 of 21 [21] that the suit is in time. Consequently, the civil revision petition fails and is dismissed. There will be no order as to costs.‖ [Emphasis added] [14] In view of the above exposition of law, this court is unable to accept the contention of Mr. D. Chakraborty, learned senior counsel appearing for the appellants that in the present case Section 29(2) of the Limitation Act shall apply as inasmuch as the TLR & LR Act does not provide any provision for limitation for filing the suit nor there is other provisions as providing the period of limitation in this regard and as such, this court is of the view that there is no substance in this appeal and accordingly, the same is dismissed.
Prepare the decree accordingly.
Send down the LCRs thereafter.
JUDGE Sujay RSA No.50 of 2013 Page 21 of 21