A suit for recovery of the price of Ganja found unfit for use is barred by limitation under Section 96 of the Bihar and Orissa Excise Act (Act II) of 1915.

JUDGMENT :

Misra, J. - Plaintiff was the Goladar of Ganja and Bbang Gola, Balasore for one year from 1-4-1956 to 31-3-1957. On the date of the expiry of the license he bad a stock of Ganja weighing 32 seers and 4 chhataks of Vekapallam variety, in all, 1 maund, 8 seers and 8 chhataks. This quantity of Ganja was taken over by the Inspector of Excise under a receipt (ext. 1) on 1-4-1957. The price of the Ganja was Rs. 945.75 Naye paise. The suit is for recovery of this amount.

Defendant pleaded that the suit was barred by limitation u/s 96 of the Bihar and Orissa. Excise Act (Act II) of 1915, hereinafter referred to as the Act, and that the stock of Ganja was unfit for human consumption and was to be destroyed under the rules. Five seers and three chhataks out of that were Bold for Rs. 84-30 Np. at a time when there was shortage of Ganja. Though not legally entitled, the Defendant has no objection if this amount of Rs. 84-30 Np. is decreed in favour of the Plaintiff.

The trial court decreed the suit. The lower Appellant court dismissed the suit both on merits and on the question of limitation. The value of the claim being less than 1000/-, no second appeal lies (see Section 102, Code of Civil Procedure). Accordingly the Civil Revision has been filed against the appellate decree.

2. Mr. Mohapatra contends that the Plaintiff?s claim is to succeed it on merit and that the suit is not barred by limitation.

3. The learned District Judge on a discussion of the evidence on record came to the conclusion that the stock of Ganja was unfit for use or human consumption during currency of the Plaintiff?s license and was to be destroyed under the rules, even though in fact the stock had not been destroyed. The correctness of this finding was assailed by Mr. Mohapatra with reference to exts. Band C. Ext. B is the relevant inspection note of the Superintendent of Excise of the Ganja and Bhang Gala of Balasore on 1-7-1956. The inspection was made in presence of the Petitioner. The relevant portion may be extracted. The Vekapallam and Ahmedabad Nagar varieties of Ganja are only lying in his Gola and both are being deteriorated from day to day. I had remarked in my last inspection to put up the order of the B/R (Board of Revenue) for stopping the issue and for moving the same authorities for its disposal. Gola Officer to trace the office record and put up for necessary action.

This inspection note unequivocally shows that the stock of Ganja was in a deteriorated condition and was further deteriorating from day to day. The Superintendent of Excise was of opinion that the issue of the stock for circulation must be stopped. For that purpose, he asked the office to put up the orders of the Board of Revenue and also to move the Board for disposal of the stock. Disposal of the stock, in the context, means destruction of the stock but not the sale thereof.

Another Superintendent of Excise again inspected on 1-2-1957 in presence of the Petitioner. His comments in the inspection notes Ext. (0) were as follows:

The issue of this Ganja has been stopped before my joining in this district as it is said for the bad quality of this stock. Till now no final step has been taken for the disposal of this stock. The Gola Officer will put up a draft to B/R in this connection quoting all previous references.

This inspection note makes it clear beyond any doubt that the, stock in question had been stopped from being issued as it was of bad quality even prior to the joining of this Excise Superintendent. No step had, however, been taken for the destruction of this Stock.

In my view, these two documents make it clear that the stock was ordered not to be issued as it was of bad quality and in a deteriorated condition. The learned District Judge has arrived at the right conclusion.

The question for examination is whether on this finding, the Plaintiff is entitled to the recovery of the price of this stock.

4. Section 92 of the Act prescribes that all rules made and notifications issued