JUDGMENT : Misra, J. - Plaintiff's suit was for permanent injunction and in the alternative for recovery of possession if the Defendants were found to have trespassed on the suit land. The suit land as described in the plaint measures 1.50 acre constituting a part of survey No. 2017(55) with total area of 5.02 acres in Gudiali village in Ganjam district. Plaintiff's case is that he has been in possession and enjoyment of the disputed land for over 30 years. The land was for the first time surveyed in 1953, and a patta was issued in favour of the Plaintiff on 26th of September 1953. Defendants Nos. 1 and 2 did not contest. Defendants Nos. 3 to 8 contested the suit asserting that it was their ancestral property and that they are in possession of the same for about 100 years. 2. After discussion of the relevant evidence, the learned trial Court decreed the Plaintiff's suit. In appeal, the suit was dismissed. Against the appellate decree, the second appeal-has been filed. 3. Mr. Murty raised a preliminary objection that the second appeal itself was filed beyond time and is barred by limitation. Mr. Misra contents that the second appeal was filed in time and that on merits, the judgment of the lower appellate Court is contrary to law, inasmuch as, it committed certain errors of record and did not discuss the relevant evidence in support of the Plaintiff's title and possession. 4. Before going into the merits, it would be profitable to state the relevant facts in chronological order on the has of which the preliminarily objection is raised. Sr. No. Subject Dates l. Delivery of judgment 23-11-1963 2. Decree was signed 5-12-1963 3. Application for copy of judgment and decree filed 14-12-1963 4. Delivery of folios 17-12-1969 5. Copy was ready 20-1-1964 6. Filing of the Second Appeal 8-4-1964 7. Stamp-report to the effect that the appeal was barred by limitation by 11 days. 22-4-1964 8. Stamp report accepted by the Registrar and one week's time was granted for taking steps in limitation matter. 2-11-1964 9. Order passed by the Bench 18-11-1964 that steps regarding limitation shall be taken within ten days, as requested. 10. Order passed by the Bench that the question of limitation to be put up at the time of admission ... 3-12-1964 11. Appeal was admitted ... 2-11-1964 9. Order passed by the Bench 18-11-1964 that steps regarding limitation shall be taken within ten days, as requested. 10. Order passed by the Bench that the question of limitation to be put up at the time of admission ... 3-12-1964 11. Appeal was admitted ... 1-2-1965 It is to be noted that on the date the appeal was admitted, the question of limitation was not mentioned in the list. The Appellant's Advocate does not appear to have brought to the notice of the Court that the appeal involved a question of limitation. If the Appellant's Advocate had brought this matter to the notice of the Court, the Bench must have recorded an order one way or the other deferring its consideration till the time of hearing. There is no application u/s 5 of the Limitation Act. Mr. Misra takes his stand on the argument that there is no limitation at all. 5. The question of limitation involves the construction of Section 12 of the Limitation Act, 1963 (Act XXXVI of 1963) which came into force with effect from 1-1-1964. As the appeal was filed on 8-4-1964, it would be governed by the new Act. Section 12 enacts as follows: Computation of period of limitation. 12. Exclusion of time in legal proceedings: (1) In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded. (2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded. (3) Where a decree or order is appealed from or sought to be revised or reviewed, or where an application is made for leave to appeal from a decree or order, the time requisite for obtaining a copy of the judgment on which the decree or ... order is founded shall also be excluded. (4) In computing the period of limitation for an application to set aside an award, the title requisite for obtaining a copy of the award shall be excluded. order is founded shall also be excluded. (4) In computing the period of limitation for an application to set aside an award, the title requisite for obtaining a copy of the award shall be excluded. Explanation:In computing under this section the time requisite for obtaining a copy of a decree or all order, any time taken by the Court to prepare the decree or order before an application for a copy thereof is made shall not be excluded. The controversy centres round the meaning to be given to the Explanation. It is to be noted that under Sub-section (2) while computing the period of limitation for an appeal, the time requisite for obtaining a copy of the decree or order appealed from shall be excluded. What is the time requisite for obtaining a copy of the decree or order has to be gathered only from the Explanation. It says that in computing the time requisite for obtaining a copy of the decree or order, the time as mentioned in the second part of the Explanation shall not be exclude. The second part of the Explanation deals with the time taken by the Court to prepare the decree or order. Under the Explanation, the time so taken by the Court for preparation of the decree or order shall not be excluded from the time requisite for obtaining a copy of the same. The mandate is that it shall not be excluded from the time requisite for obtaining a copy of the decree or order. On the plain language of the Explanation, it is clear that the entire time taken by the Court for the preparation of the decree shall be included within the time requisite for obtaining a copy of the decree as referred to in the first part of the Explanation. With respect I am inclined to agree with the majority view in The State of Bihar Vs. Md. Ismail and Others. The matter can be simplified if the words "shall not be excluded" would be substituted by the words "shall be included" as observed by Justice Mohapatra. The Explanation purports to give a definition to the expression 'the time requisite for obtaining a copy of the decree or order' in Sub-section (2). Md. Ismail and Others. The matter can be simplified if the words "shall not be excluded" would be substituted by the words "shall be included" as observed by Justice Mohapatra. The Explanation purports to give a definition to the expression 'the time requisite for obtaining a copy of the decree or order' in Sub-section (2). But for the Explanation the conflicting views which prevailed amongst the various High Courts as to the meaning of this expression prior to the passing of the new Act would have continued. It must be remembered that some High Courts took the view that the litigants applying for copy had no control over the machinery of the Court preparing the decree and could not be penalised. Therefore, they held that the entire period between the date of the judgment and date of the signing of the decree would be excluded from the period of limitation prescribed for filing of an appeal and would be included within the time requisite for obtaining a copy. Other High Courts took a different view. The Explanation resolved the conflict by adopting the former view. 6. It would be pertinent to examine the history of this amendment. The old Section 12 with four Sub-sections was allowed to be continued in the new Act with slight changes which are not pertinent to this case. The Explanation was for the first time inserted in the new Act. The Law Commission of India in its third report on the Limitation Act, 1908 observed as follows in paragraph 37: 37. Some Courts have taken the view that the delay in drafting the decree before an application for a copy is made should be deducted as "time requisite". But we think that a delay of the office before the application for a copy is made should not count in favour of the party. A suitable provision should be added to make this clear. In accordance with their views, they gave proposal of the draft Explanation to be inserted in the existing Act (see Annexure to the third report on the Limitation Act, 1908 at page 76), as follows: Explanation:Any time taken by the Court to prepare the decree or order before an application for copy thereof is filed shall not be regarded as time requisite for obtaining the copy within th meaning of this section. In the Statement of Objects and Reasons of the ne Limitation Act, for Explanation to Section 12, the reasons were given in Clause 12 as follows: Clause 12:The existing Section 12 is being amended, (iii) to make it clear that any delay in the office of the Court in drawing up a decree or order before the application for a copy thereof is made, shall not be excluded. The objects and reasons so stated were also in consonance with the view of the Law Commission. But in bringing the present Explanation in the Statute Book, the Legislature completely departed from the draft Explanation suggested by the Law Commission. It would be profitable at the cost of repetition to quote the two Explanations in juxtaposition to indicate the radical departure which the Legislature made from the suggestion of the Law Commission. Explanation to Section 12 as suggested by the Explanation to Section 12. Law Commission. Explanation:Any time taken by the Court to prepare the decree or order before an application for copy thereof is filed shall not be regarded as time requisite for obtaining Explanation:In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the Court to prepare the decree or order before an application for a copy thereof is made shall not be excluded. Despite objects and reasons clearly indicating that the views of the Law Commission were to be adopted, the Legislature inserted a beneficial provision in favour of the litigants that the time taken by the office for preparation of the decree should come within the ambit of the time requisite for obtaining a copy. Had it been otherwise, the legislative intention would have been reflected in the Explanation by omitting the word "not" in the second part of the Explanation. This alteration in the language has not been noticed in the aforesaid Full Bench decision. It reinforces the majority view. As other aspects of the matter have been fully discussed in the majority judgment; in State of Bihar v. Md. Ismail and Ors.1, it would be profitless to tread the same field over again. With respect I agree with the majority view that the time taken by the Court in preparation of the decree before the filing of a copy application should be included within the time requisite for obtaining a copy. Ismail and Ors.1, it would be profitless to tread the same field over again. With respect I agree with the majority view that the time taken by the Court in preparation of the decree before the filing of a copy application should be included within the time requisite for obtaining a copy. In this view of the matter, the Appellant is entitled to the benefit of the period from 23-11-1963 to 5-12-1963 which was the time taken by the Court to prepare the decree before an application for copy thereof was made. Mr. Murty concedes that if this period is excluded, the second appeal has been filed in time and is not barred by limitation. The preliminary objection accordingly fails. 7. Coming to the merits of the matter, it will be noticed that the contesting Defendants have no document of title. Plaintiff relied on a large number of documents support of his title that the disputed land belongs to him. The learned lower appellate Court has referred to these documents and has come to the conclusion that the Plaintiff; case varied from time to time as to how much of land belonged to him. He accordingly held that the Plaintiff failed to establish that the disputed land belonged to him. As both parties have prayed for a remand and there is some justification for such a common prayer, I do the copy within the meaning of this section not express my view on this aspect of the case. It is unnecessary, to recount the criticism levelled by Mr. Misra against the views of the learned Additional Subordinate Judge on the question of title. 8. Even assuming without expressing a final view that the Plaintiff failed to prove his title, the Court has to examine the respective cases of the parties regarding possession. If the Plaintiff succeeds in proving that he was in possession of the disputed land for more than twelve years and had acquired a prescriptive title which is still subsisting, he is entitled to a decree for recovery of possession. The Plaintiff can also succeed to recover possession, if he proves that he was in prior possession and the Defendants trespassed without title. For this purpose, the evidence of possession of both the parties must be closely scrutinised. Mr. The Plaintiff can also succeed to recover possession, if he proves that he was in prior possession and the Defendants trespassed without title. For this purpose, the evidence of possession of both the parties must be closely scrutinised. Mr. Murty concedes that the learned Additional Subordinate Judge had not at all discussed the evidence of possession of the Defendants. Mr. Misra argues that some of the witnesses for the defence even admit the boundary as given by the Plaintiff and that the evidence of p.w.2 was discarded on a frivolous ground without assigning any substantial reasons. The learned Additional Subordinate Judge also has committed an error in saying that the rent receipts (Ex. 4 series) are not connected with the suit land. On verification, it appears that the rent receipts relate to 1/Uan in respect of which patta (Ex. 1) has been granted to the Plaintiff. It is for the learned judge to see whether there receipts relate to the suit land by comparing the number on the back of the rent receipts with the number as given in the patta. The Settlement entry (x. 1) granted on 26-9-1953 in favour of the Plaintiff is presumptive evidence of Plaintiff's possession in 1953. Unless the Defendants prove a title and prior possession any subsequent dispossession would not protect them from eviction (See ILR 1963 Cutt. 482). As both the parties state that the judgment of the learned Additional Subordinate Judge in the matter of discussion of the evidence of possession is not satisfactory, and as I am satisfied that the defence evidence has not at all been touched, it is unnecessary for me to go into the question in detail. There cannot, however, be any doubt that the learned judge exercised jurisdiction with material irregularity and contrary to law in not adverting to all the relevant evidence on the point. 9. In the result, the judgment of the lower appellate Court is set aside and the appeal is allowed. The Case is remanded to Shri R.C. Kar, Additional Subordinate Judge, Berhampur for disposal in accordance with law and observations made above. Cost to abide by the result. Final Result : Allowed