JUDGMENT 1. THIS appeal at the instance of the defendant no. 2 arises out of a suit by the plaintiff for declaration of title and also for setting aside the decree passed in Title Suit no. 222 of 1950 by the munsif, 2nd Court, Howrah as well as Title execution Case no. 87 of 1957 and the auction sale held in that execution on 14th of August, 1959 is null and void, fraudulent without jurisdiction and not binding upon the plaintiff and for permanent injunction restraining the defendant from taking any step in pursuance of the sale, execution and decree either in Title Suit no. 518 of 1961 or the Title Execution Case 70 of 1963 as well as for declaration that only Kietaban's share in the suit property had been put to auction. 2. THE plaintiff's case is that the suit property originally belonged to one Mahabub ali and that on Mahabub's death it was inherited by his son Habib and Hanif, thereafter on the death of Habib his share in the property was inherited by his widow kietaban, two sons named Joynal and Martuja and one daughter named Kektu Bibi who is the plaintiff in the present case. Ketaban died on 22nd of November, 1951 leaving two minor sons Jainal and Martuja and one daughter the plaintiff and her heir. During the communal riot in 1950 the plaintiff pro forma defendants and her mother Ketaban went over to East Pakistan. Thereafter Murtaja died while living there, leaving the plaintiffs and pro forma defendant no. 4 as his heirs. It appears that the earlier suit was filed by the Municipality for the default in payment of municipal taxes under the Calcutta Municipal Act, 1923 which was applicable to Howrah at that point of time. The municipal tax was charged on the property. The charge suit was decreed and in a auction sale the defendant no. 2 purchased the property in question. It is stated in the plaint that the earlier suit was filed against a dead person and the interested persons were not impleaded. Therefore, the decree itself and consequently the auction sale is without jurisdiction. The defendant no. 2, who is respondent no. 1 here filed a written statement inter alia contending that he is a bona fide auction purchaser for value and got possession through Court. Therefore, the decree itself and consequently the auction sale is without jurisdiction. The defendant no. 2, who is respondent no. 1 here filed a written statement inter alia contending that he is a bona fide auction purchaser for value and got possession through Court. The judgment debtors were not in possession in respect of the suit property and the two rooms on the north and south were occupied by the refugees and subsequently one of the refugees, however, left the premises and he is now in occupation of the defendants room and the other room was occupied by Keshab Ch. Das and his brother, defendant No. 2. had instituted the title suit being no. 518 of 1961 in the Court of 2nd Munsif and got ejectment decree. The allegation of collusion with the Municipality is denied by the defendant no. 1. It is stated that Mahabub ali left only one son and he had no other son in the name of Hanif as alleged. The defendant no. 1 Municipal Commissioner of howrah filed a written statement in the case denying the allegation made in the plaint. It is stated that the defendant no. 1 filed title Suit no. 222 of 1950 against the persons interested for the just dues of the Municipality. The said suit was decreed and in execution the defendant no. 2 purchased the property for value. Hence the defendant no. 1 denied the collusion with the defendant no. 2 as alleged by the plaintiff. On these pleadings the parties-came to trial. The trial court held inter alia that no notice was served on the Municipality under section 538 of the Calcutta Municipal act, 1923, Therefore, the suit filed by the plaintiff is not maintainable. It has been found on fact that the plaintiff left the suit premises and was dispossessed in 1950. The plaintiff, it has been held by the court of first instance on the basis of Ext. 13, was aged 15 years in January, 1950. It has been held by the court of first instance that the suit is not barred by limitation as the suit was filed within time on the principles laid down in AIR 1940 Cal. 589. The plaintiff, it has been held by the court of first instance on the basis of Ext. 13, was aged 15 years in January, 1950. It has been held by the court of first instance that the suit is not barred by limitation as the suit was filed within time on the principles laid down in AIR 1940 Cal. 589. It has been further held by the trial court that no notice was issued by the plaintiff before filing the present suit on the Commissioner of the Municipality under Section-538 of the Calcutta Municipality Act, 1923. The suit was therefore dismissed. The plaintiff preferred an appeal. The appellate court came to a finding that the suit is not barred by limitation according to the decision reported in AIR 1940 Cal. 589. On the question of notice it has been held that the Commissioner of the Howrah Municipality are not necessary parties and therefore, non service of notice under section 538 of the Calcutta municipality Act, 1923 is not fatal to the filing of the suit. 3. MR. Ghose appearing for the appellant (defendant no. 2) contended inter alia that the suit is barred by limitation in view of sections 6, 7 and 8 of the Limitation Act, 1963. Mr. Ghose relied upon a case reported in AIR 1921 Calcutta 572 in support of his contention that either 12 years' limitation will apply considering from the date of dispossession in 1950 or three years from the date of attainment of majority of the plaintiff will apply. It has been specifically stated by the plaintiff's witness that the plaintiff attained majority in June 1960. Therefore, the suit is barred by limitation on any Of the counts. In so far as the notice is concerned. Mr. Ghose contended that no notice was served and his contention is supported by the findings of both the courts below. Mr. Seth on the other hand contended that notice was served and he stated that though the notice was filed, it has not been exhibited and therefore, he prayed for remand of the case to the appellate court. In so far as the limitation is concerned, Mr. Mr. Seth on the other hand contended that notice was served and he stated that though the notice was filed, it has not been exhibited and therefore, he prayed for remand of the case to the appellate court. In so far as the limitation is concerned, Mr. Seth contended that under the Mohamedan Law mother is not legal guardian of minor and therefore, the suit which was earlier filed immediately by the mother as legal guardian of the minor is not maintainable and the decree passed therein is null and void. 4. IN so far as the question of Mohamedan law is concerned it is true that the mother is not the legal guardian of the minor in respect of the properties. It is also true that the court has power to appoint guardian in such cases. We are however not concerned with that aspect at the present moment. The point is, as the appellate court has held, that the Commissioners of the Municipality are not the necessary parties. In my opinion, there the appellate court is patently wrong. The suit was filed by the Municipality against the owner of the house for the municipal due which was first charge under the extent section of the calcutta Municipal Act, 1923. The execution proceeding was on the basis of the decree passed thereon and therefore, in any subsequent suit for setting aside the said decree it is incumbent on the part of the plaintiff to make the Commissioners parties to the cause. The plaintiff did make the commissioners parties. But the courts below have found that no notice was served under section 538 of the Calcutta Municipal Act, 1923 and as such the suit is not maintainable under the said section though it has been urged by Mr. Seth that such notice was given and it is there in the record. But it does not appear that it has been exhibited at all. No one has sworn oath that service was made on the Municipality. On the other hand, both the courts below found on the question of fact that no such service was made. In my opinion, the learned Judge of the appellate court was wrong in holding that the Municipal commissioners of Howrah Municipality are not the necessary parties to the suit and therefore, non-service of notice does not in any way affect the merits of the suit. In my opinion, the learned Judge of the appellate court was wrong in holding that the Municipal commissioners of Howrah Municipality are not the necessary parties to the suit and therefore, non-service of notice does not in any way affect the merits of the suit. The next question which is agitated by both the parties is whether the suit was brought within three years from the attainment of majority of the plaintiff. The plaintiff's evidence is that she attained majority in June 1960. Therefore, under sections 6 and 7 read with section 8 of the Limitation act the suit should have been brought within June 1963. Admittedly in this case the suit was brought on 16th of December, 1963 and therefore, is barred by time. Assuming for a moment that the case of adverse possession is to be considered, it is admitted fact that the present defendant no. 2 came into possession of the premises after ousting the plaintiff's predecessor in interest in 1950. Thereafter 12 years have elapsed so far back as in 1962. Even taking any one as the date of accrual of cause of action, the suit as filed was barred by limitation, Both the courts below came to a finding that AIR 1940 Cal. 589 is applicable in this case and therefore taking Ext. 13 as date when the plaintiff was stated to be 15 years she attained majority in 1953 and caking advantage of section 8 of the Limitation Act it may be said that if the suit is filed within 12 years from 1956, the suit is within time. In my opinion, it is not correct leading of sections 6, 7 or 8 of the Limitation Act. AIR 1940 Cal. 589, however, did not consider even the Division Bench judgment reported in AIR 1921 Cal. 572. Their Lordships of the Division Bench presided over by Acting Chief Justice Mookerjee held as follows: "The infant, whose property has thus been alienated, is consequently entitled to institute a suit for recovery of possession within twelve years from the date of sale, or within three years from the attainment of majority whichever may be the later date. From this point of view, the claim by the first plaintiff is barred by limitation, because as the Trial Court found, he had attained majority more than three years before suit. . . . . From this point of view, the claim by the first plaintiff is barred by limitation, because as the Trial Court found, he had attained majority more than three years before suit. . . . . " In my opinion, therefore, the suit as filed in any case is barred by time and it should have been dismissed. The appeal is therefore allowed. The judgment and decree of the appellate court are set aside and those of the trial court are upheld to the extent that the suit is dismissed. There will be no order as to costs.