Ismalsa Rowther vs Sadasiva Asari and Another

Devadoss, J.—The plaintiff''s suit is for possession of a house with mesne profits. The District Munsif decreed the plaintiff''s suit but on

appeal the District Judge dismissed the suit on the ground that it was barred by limitation under Article 47 of the Limitation Act. The only point in

this Second Appeal is whether Article 47 applies to the plaintiff''s suit.

The plaintiff purchased the plaint house on 20th June 1919. There was a possession case between the plaintiff and the defendants in 1919 and

the Subdivisional First Class Magistrate at Tanjore passed an order on 19th August 1919 in plaintiff''s favour.

The plaintiff presented his plaint on 21-12-22, that is, more than three years after the date of the order of the First Class Magistrate. The learned

District Judge held that the plaintiff''s suit ought to have been brought within three years of the order of the Magistrate. The question is, is the

plaintiff in whose favour an order u/s 145 of the Criminal P. C. has been passed to bring a suit within three years for recovery of possession of the

property which was the subject-matter of the proceedings before the Magistrate? The order is in these terms:

I am satisfied that the petitioner was in possession of the house on 13-7-19 and that he has been forcibly and wrongfully dispossessed by the

counter-petitioners. I therefore allow the petition and order the counter-petitioners to pay the petitioner''s costs.

The defendants, counter-petitioners before the Magistrate, seem to have dispossessed the plaintiff, the petitioner before him, within two months

of the preliminary order passed by the Magistrate and on the date of the final order the defendants were in actual possession of the property. On

the strength of this it is contended for the respondent that the order was not in favour of the petitioner and therefore he should have brought a suit

to set aside the order and to recover possession within three years. The argument overlooks the plain provision of the second clause of Section

145 (4) which is in these terms:

Provided that if it appears to the Magistrate that any party has within two months next before the date of such an order been forcibly dispossessed

he may treat the party so dispossessed as if he had been in possession at such date.

The possession, therefore, of the person who wrongfully dispossessed the person in possession of the property within two months before the

date of the preliminary order is deemed to be the possession of the person so dispossessed. Form No. 22 puts the matter beyond all doubt for the

order that is drawn up is in these terms:

I do decide and declare that he is in possession of the suit property and entitled to retain such possession of the suit property until ousted by due

course of law and do strictly forbid any disturbance of his possession in the meantime.

When the Magistrate declared the plaintiff to be in possession of the property he was giving effect to the provision of Section 145 already

referred to. The physical possession of the property by the defendants was the possession of the plaintiff, for the provision above referred to

clearly lays down that the possession of the forcible dispossessor is deemed to be the possession of the person forcibly dispossessed provided the

forcible dispossession was within two months of the date of the preliminary order. Therefore the order of the Magistrate must be considered to

have confirmed the possession of the plaintiff and he did not give any possession to the defendants. Should a person in whose favour an order is

made sue within three years of the order of the Magistrate in order to recover possession? I do not think he is bound to sue within three years for

possession. Supposing the defendants had trepassed the day after or some time after the Magistrate passed his order could it be contended that

the plaintiff in such a case was bound to bring a suit within three years of the date of the order? Article 47 applies to cases where a person is not

given possession by the Magistrate u/s 145. There are cases whom the Magistrate puts the property [MISSING TEXT] the hands of the receiver,

not being able to determine which of the contending parties was in possession of the property on the date of the order; in such cases if a party

wants to get possession of the property he should bring a suit within three years. But it is opposed to all principle to hold that a person in whose

favour an order is made u/s 145, Criminal P. C., should bring a suit for recovery of possession within three years. The contention of Mr.

Venkatarayaliah for the respondent is whether the order is for or against a person he must sue to recover possession within three years. The order

of the Magistrate amounts to confirming the possession of the plaintiff and does not give possession to the defendants. Therefore when the

Magistrate confirms the possession of a person that person is not bound to bring a suit to recover possession. A number of cases have been cited

by Mr. Venkatarayaliah but I do not think that any of them applies to the present case. In Jagendra Kishore Roy Chowdary v. Brojendra Kishore

Roy Chowdary [1896] 23 Cal. 731it was held that a suit by one person bound under an order u/s 145 is governed by Article 47 of the Limitation

Act. It includes not only persons who are parties to the possession proceedings but also persons who claim from them or through them. Wise v.

Amoerunnissa Khatoon [1879] 7 I. A. 73 and Yar Mahomad Shah v. Heyat Mahomad Saha 22 C. W. N. 342 do not help the respondent. A suit

has no doubt to be brought if a person wants to recover possession from the receiver who has been put in possession of the property by the

Magistrate, otherwise the property would remain with the receiver in other words would be in custodia legis.

The case in 7 Indian Appeals 73 which is also reported in 6 C. L. Rule 249 (2) does not materially help the appellant. In that case it was

contended that after three years a person in whose favour the order is made gets a title by prescription. Their Lordships of the Privy Council

negatived such a contention. If two persons claim possession of some property and the Magistrate issues an order in favour of one and if that

person is in possession of the property for more than three years he cannot be said to acquire a title by prescription against the whole world. In

Solai Ammal v. Jogi Chetty [1920] 10 L. W. 637 it was held that after three years the unsuccessful party could not claim the property from the

person who was the successful party before the Magistrate, for Article 47 read with Section 28 of the same Act would give a title to the person in

whose favour the order is made. As observed by the learned Judges:

The principle underlying the article is that as possession is outstanding the party which is out of it should sue within three years to recover it. If he

fails to sue within that period then the right to possession u/s 28 is extinguished.

In this case, as already observed, the possession was with the plaintiff and not with the defendant as under the law the defendant''s possession

was the possession of the plaintiff.

Under the old Criminal P. C. there was no power specifically given to the Magistrate u/s 145 to restore possession to the person wrongfully

dispossessed within two months of the passing of the preliminary order. Under the present Code a new clause has been inserted which empowers

a Magistrate in such cases to give actual possession to the person forcibly dispossessed. In Clause 5 of Section 145 the relevant portion of the

new clause is:

May restore ( meaning the Magistrate) possession to the party forcibly and wrongfully dispossessed.

Before this amendment the Court could not very well restore possession to the person dispossessed, unless the case was one which came u/s

522 of the Criminal P. C. which reads as follows:

Whenever a person is convicted of an offence attended by criminal force or show of criminal force or criminal intimidation and it appears to the

Court that by such force or show of force or criminal intimidation any person has been dispossessed of any immovable property the Court may, if

it thinks fit, when convicting such a person and shall at any time within one month from the date of conviction order the person dispossessed to be

restored to possession of the same.

Where no offence is committed which would come u/s 522 the Magistrate could not restore possession to the person dispossessed when

acting u/s 145. But there is no ground for holding that the possession of the defendant was possession which the law recognized as his. In this view

of the law the plaintiff''s suit is within time. The second appeal is allowed; the judgment of the District Judge is set aside and that of the District

Munsif restored with costs here and in the Court below.