Mahendra Chandra Malakar vs Chandra Kanta Mahanta and Others

M.C. Pathak, J.—This appeal is from the judgment and decree passed by the Assistant District Judge No. 1 at Gauhati.

The Plaintiff brought the suit for declaration of his occupancy right and for khas possession of the disputed land by evicting Defendant No. 1, the principal Defendant. The Plaintiff''s case briefly is that the lands of the suit patta belonged to Madhab Temple of Hajo and the lands were in occupation of one late Jagyaram as occupancy tenant. Jagyaram died leaving three sons who inherited the lands in equal shares. Thereafter Nidhi-ram, one of the sons of Jagyaram, sold his share to the Plaintiff for Rs. 200/- A dispute regarding possession arose and there was a proceeding u/s 145, Criminal Procedure Code in respect of the suit land and the said proceeding terminated against the Plaintiff. Hence the Plaintiff brought the suit for declaration of his occupancy right and recovery of Khas possession in respect of 1/2 share of the land of the suit dag.

The principal Defendant resisted the suit. He admitted that the land under the suit dag belonged to Madhab Temple of Hajo and his father was an occupancy tenant in respect thereof. His case is that the land under the suit dag was not divided amongst the three sons of Jagyaram as alleged by the Plaintiff but the principal Defendant got the entire area of 3B. 2K. 7 Lechas of the suit dag in his exclusive share and possession according to family arrangement on partition and therefore his brother Nidhi-ram had no right to sell the suit land at all. He further alleged that the sale deed in question was fraudulent and that the suit was bad for non-joinder of necessary parties.

Several issues were framed by the learned Munsiff on the pleadings of the parties and issue No. 4 was to the following effect:

Whether the Plaintiff''s suit is barred under Article 47 of Schedule I of the Indian Limitation Act of 1908

On consideration of the evidence on record learned Munsiff found that the suit was barred under Article 47 of Schedule I of the Limitation Act. Consequently he dismissed the Plaintiff''s suit. On appeal the learned Assistant District Judge found that the suit was not barred under Article 47. He however found that the suit was bad for non-joinder of necessary parties and since the suit might not be dismissed on that ground he remanded the suit for retrial.

Mr. K. Majumdar the learned Counsel appearing for the Appellant submits that the learned Assistant District Judge was wrong in his finding that the suit was not barred by Article 47, Schedule I of the Limitation Act. Mr. S.K. Goswami, the learned Counsel for the Respondents on the other hand submits that the learned Assistant District Judge correctly decided that the suit was not barred by limitation.

The admitted position is that there was a proceeding u/s 145, Criminal Procedure Code between the Plaintiff and the principal Defendant in respect of the suit land. The proceeding u/s 145, Criminal Procedure Code was initiated at the instance of the Plaintiff and the final order in the proceeding u/s 145 was passed on 6-1-58 declaring possession in favour of the principal Defendant Mahendra Chandra Malakar. The present suit was filed on 14th July 1961. It is therefore very clear that the suit was filed beyond three years from 6-1-58, the date of final order in the proceeding u/s 145, Criminal Procedure Code. The present suit has been filed for khas possession of the same land which was the subject matter of the proceeding u/s 145. Criminal Procedure Code on declaration of occupancy right.

Article 47, Schedule I of the Limitation Act reads as follows:

A suit for recovery of the property comprised in a proceeding u/s 145, Criminal Procedure Code by a party who is bound by the order u/s 145, Criminal Procedure Code, will have to be brought within three years from the date of the final order passed in the proceeding u/s 145, Criminal Procedure Code. If the suit is filed beyond three years, it will be hit by this article and barred by limitation. This view is in accordance with the decision in Ambika Prasad Thakur v. Ram Ekbal Rai AIR 1966 SC 605. In the circumstances I hold that the instant suit is barred under Article 47. Schedule I to the Limitation Act. The finding of the learned Assistant District Judge regarding issue No. 4 is therefore set aside. That being the position the Plaintiff''s suit must fail.

In the result the judgment and decree of the learned Assistant District Judge are set aside and the Plaintiff''s suit stands dismissed. The appeal is allowed but in view of the facts and circumstances of the case I make no order as to costs.