Dr. T. N. Singh, J.

l. Two Courts below have decreed plaintiffs' suit and only question on which the appeal was admitted to be decided is that of limitation.

2. The appeal arises out of a suit instituted by respondents 1, 2 and 3 to declare void sale made on 15-3-1964 of their agricultural holding by the Naib Tahsildar for default by them in discharge of their liability in respect of a taccavi loan of Rs. 500/-, payable to the State Government. Both Courts have held the sale to be illegal and without jurisdiction and that finding is not open to challenge in this appeal.

3. The suit admittedly was instituted in 1973 following service of a notice dated 9-5-1972 by the plaintiffs on the State Government. The legal position which appears to be well-settled is that with reference to the facts pleaded and proved in the case and on the findings of the two Courts, the provisions not of Article 99, but of Article 113, Limitation Act, would apply. The plaintiffs/respondents pleaded that the sale was held without notice and they were continuing in possession of the suit land and their right to sue accrued when the defendant/appellant attempted in Samvat 2029 to mutate his name in Revenue records necessitating service on the State of the notice, aforesaid, dated 6-5-1972. Accordingly, the suit being filed within three years, the Courts below it is submitted rightly held the suit not to be barred by Article 113 aforesaid. Both Courts have found on evidence that for a sum of Rs. 310/- only, land measuring 37 Bighas, 4 Biswas in the joint Khata of the plaintiffs was sold in the Revenue auction and that prior to the sale, no notice of demand for recovery of the loan was served on the plaintiffs.

4. Although in this Court, an attempt has been made to submit that the decision of the Courts below on the question of limitation is not sustainable inasmuch as Article 99 would apply, that contention must be repelled by Authories abound for the proposition of law accepted by the Courts below. I do not think if it can be disputed that when a "sale" is not conducted fulfilling the requirements of law, that cannot be regarded as a "sale within the meaning of Art-99.Indeed, a sale could be made for 'any payment recoverable" within the meaning of term employed in Article 99, but it has to be established that a notice of demand was made and the sum due had there for become “recoverable” on the demand being satisfied. See Nani Naj AIR 1958 SC 706, Mohd. Mirtiza Khan 1966 JLJ 543 (SC); Manmohan Lal Shukla 1964 RN 1.

5. The only question that has to be considered, however, is whether a remand is at all warranted became the instant appellant (also appellant in the Court below) had filed an application under Order 41, rule 27, CPC and the grievance made in this Court is that, that has not received proper consideration. However, reading para 12 of the impugned judgment. I do not think if even that grievance has any merit as documents filed were copies of public documents and for non-production of those documents in the trial Court. there could be no valid reason. As per clause (aa) of rule 27 of Order 41 additional evidence can be allowed by the appellate Court to be adduced by any party only when it is established that "notwithstanding exercise of due diligence such evidence was not within his knowledge or could not after exercise of due diligence be produced by him at the time when the decree appealed against was passed.

6. However, even if those documents had been accepted, nothing would have turned on that inasmuch as admittedly, the only fact that was to be established on the basis thereof was the fact of the knowledge of the plaintiff respondent of the sale. I have no doubt that in terms of the provisions of Art. 113, the right to sue accrued to the plaintiffs/respondents when there was invasion on their title by the defendant/appellant on his taking steps to mutate the land in his name. The sale being nullity and possession thereof having remained all