A plaintiff cannot exclude the period of summer vacation or the period during which the suit was pending in the wrong court under Ss. 4 and 14 of the Limitation Act, 1908, respectively, if he has not approached the proper court or has not prosecuted the suit with due diligence and good faith.

AGGARWAL, J. :- This second appeal against the decision of the learned District Judge, Kolhapur, has been referred to Division Bench by a learned Single Judge as, in his opinion, it involves important questions, particularly as regards the joinder of proper parties and limitation under Ss.4 and 14 of the Limitation Act, 1908. Principally, this appeal involves the point of limitation and in order to appreciate the same, it is necessary to trace the history of the litigation.

2. It is common ground that the land in suit bearing Regular Survey No.386 admeasuring 22 acres and 39 gunthas originally belonged to Shri Swami Jagatguru Matha Karvir and Sankeshwar. By a Sanad of Margashirsha Vad 3, Shake 1756, His Holiness granted it in Inam to Hari Ballal. Hari Ballal had two sons named, Bhavanrao and Antaji. Bhavanrao died before 1892 leaving behind his widow Ramabai. Antaji had two sons named Hari and Krishnaji. Hari had a son named Shankar and wife named Radha. Hari died in 1927. In 1892 Shankar was taken in adoption by Ramabai widow of Bhavanrao. Antaji's other son named Krishnaji died in 1955 leaving behind Jankibai, original defendant No.1, who died in 1961. The said land which was originally Inam land was converted into Rayatava in Fasli 1356.

3. On 3rd May, 1888, Bhavanrao created a mortgage in respect of the said Survey No.386 by a registered deed, Ex.95. The entire property was mortgaged to Shivram Pujari for Rs. 750. The period stipulated was 10 years. The mortgage-deed provided that the mortgagee was to pay Rs. 156 per annum out of the usufruct to the mortgagor and to appropriate the balance towards the claim of interest on the mortgage amount of Rs. 750. The mortgagee was to redeem the property at any time after 10 years by paving Rs. 750/-. The mortgagee was put in possession immediately. The mortgagee Shivaram Pujari, however, assigned his right, title and interest to Krishnaji Tankasale and his son Vasudeo by two different deeds dated 8th June 1894 and 7th September 1898, being Exs.96 and 97 respectively, for a consideration of Rs. 500 and Rs. 250 respectively. Shivaram Pujari parted with possession and Krishnaji Tankasale and his son Vasudeo entered into possession and undertook to abide by the old terms and in particular to pay Rs. 156 to Bhavanrao, the mortgagor.

4. Thereafter, Krishnaji Antaji filed Civil Suit No.402 of 1939 m the Court of the Subordinate Judge at Shirol against Shivaram Pujari and Krishnaji Tankasale and his son Vasudeo for redemption and possession of the said property. On 25th February 1943, he obtained a decree and the mortgagees were directed to pay Rs. 101 and to surrender possession. The mortgagees preferred an appeal to the District Court, Kolhapur, and that Court confirmed the said decree on 31st January 1945. Against that decree, the mortgagees preferred Second Appeal No.27 of 1946 in the Joint High Court for Kolhapur and Deccan States. The High Court modified the decree by relieving the mortgagees of their liability to pay Rs. 101 to the mortgagors. Krishnaji Antaji thereafter executed the decree by filing a Darkhast and obtained possession on 22nd April 1946.

5. Krishnaji Antaji, however, proceeded to alienate the said property. He sold half of the property to defendant No.2 and his brothers under a registered sale-deed dated 18th September 1946 (vide Ex.122). Defendant No.2 sold 3 acres out of their portion to Nayaku Gavade on 16th March 1955 under a registered sale-deed, Ex.160. There were further alienations in favour of defendants Nos.5 to 8 (vide Exs.140 to 144) during the period 1949 to 1952.

6. The original plaintiff Shankar claiming to be an adopted son of Bhavanrao, the original mortgagor, instituted the present suit on 4th June 1958 for redemption, partition and possession of his half share. This suit was originally instituted in the Court of the Civil Judge, Senior Division, Kolhapur, being Special Suit No.38 of 1958, on the reopening of the Courts, although the period pres