Nando Kahar and another vs Sri Bhup Narain Singh

Fazl Ali, J.—The question to be decided in this appeal is whether the plaintiffs'' suit is barred under the provisions of Art. 47 read with S. 28, Limitation Act, of 1908. The trial Court held that the suit was not barred but the lower appellate Court came to the opposite conclusion and dismissed the suit. Thereupon the plaintiffs filed the second appeal which has been referred to us by Macpherson, J., of this Court before whom it originally came up for hearing.

The plaintiffs have sued for a declaration of their title to and recovery of possession of certain lands two-thirds of which were settled by one Mahant Dayal Das with them in 1898 and the remaining one-third was purchased by them in 1901 under a registered sale deed. The plaintiffs were duly entered in the record of rights as raiyats of these lands but in 1921 one Mahant Sarup Narain Das, defendant 2, who had meanwhile succeeded Mahant Dayal Das claimed possession of the lands on the ground that the plaintiffs were benamidars of Mahant Dayal Das and in a proceeding under S. 145, Criminal P.C., which followed, an order was passed declaring Mahant Sarup Narin Das to be entitled to possession and forbidding any disturbance of his possession till he was evicted from the property in due course of law. More than three years after this order the first defendant, Bhup Narain Das, as landlord of the village instituted a suit against Mahant Sarup Narain Das, defendant 2, for declaration of his title to and recovery of possession of the holding and ultimately a decree was passed in his favour and he duly obtained possession under the decree in spite of an application made by the plaintiff under O. 21, R. 100, Civil P.C. The plaintiffs thereupon brought the the suit out of which this appeal has arisen.

The plaintiffs'' main contention is that Art. 47 applies only as between original parties to a proceeding under S. 145 or those claiming under them and that it cannot therefore be availed of by defendant 1 who was neither a party to the proceeding nor is a party claiming under one of the parties. It appears to me however that S. 28 is a complete answer to their contention and I have no doubt that the suit has been rightly dismissed by the lower appellate Court. S. 28, Limitation Act, runs thus:

At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.

It is not disputed that Mahant Sarup Narain Das, defendant 2, in whose favour the proceeding under S. 145 was decided was in possession of the disputed land for more than three years and as no step was taken by the plaintiffs to question the order under S. 145 and to evict defendant 2 in due course of law within a period of three years which is the period of limitation as provided by Art. 47, it is clear that whatever title, if any, the plaintiffs had to the property was completely extinguished. In the circumstances it was not at all necessary for defendant 3 to impaled the plaintiffs in the suit which they subsequently brought against Mahant Sarup Narain Das and the plaintiff not having taken any steps to evict Mahant Sarup Narain Das cannot now question the title of defendant 1. It is to be noted that S. 28, Limitation Act, provides in clear terms that after the expiry of the period prescribed for instituting a suit for possession of any property, the person who should have instituted such suit but has failed to do so, shall cease to have any right to the property. As Macpherson, J., has pointed out there cannot be a revival of title of which there has been a statutory extinguishment. That this is so will be clear on merely reading the section but the matter is also covered by very high authority. In Ganga Gobind Mundul v. Collector of Twenty Four Parganas, (1866) 11 MIA 345 (PC), at p. 363 the Judicial Committee has clearly pointed out that after the expiry of the period of limitation the law declares not simply that the remedy is barred but that the title is extinct in favour of the possessor. In Bhagwan Ramanuj v. Ram Krishna Bose, 1922 PC 184 = 74 IC 661 (PC), Fletcher, J., dealing with S. 28, Limitation Act, observed:

The learned Judge however has considered that in a case of this nature, when the suit is barred, the title still remains vested in the plaintiff. That obviously is not so; under S. 28, Lim. Act it is expressly provided that at the expiration of the period prescribed by the Act for limitation of suits, not only is the remedy barred but the right is gone. That is quite clear. That being so, the Statute has operated to revoke the estate, that was originally vested in the plaintiff, and to confer a statutory estate upon the defendants.

It appears that this case subsequently went up to the Judicial Committee and the decision of Fletcher, J., and the other learned Judge who had concurred in it was upheld. I may here refer to two cases which have been greatly relied on by the plaintiffs-appellants and which induced Macpherson, J., to refer the appeal to a Division Bench. The first case is that of Aukhil Chunder v. Mirza Delawar Hossein, 2 (1880) 6 CLR 93 which was decided by the Calcutta High Court in 1877 and the facts of which were briefly these: In a proceeding under S. 318 of the old Code of Criminal Procedure (to which S. 145 of the present Code corresponds) the Magistrate in January 1871 had directed possession to be given to certain persons who may be described as the Roy defendants of the lands which were the subject-matter of the proceeding. So in 1872 the .defendants who were appellants in the High Court intimated a suit against the Roy defendants to set aside the Magistrate''s order and in 1873 they obtained a decree for possession in respect of the disputed land. More than three years after the Magistrate''s order the plaintiffs-respondents instituted two suits in March 1874 and January 1875 respectively, one with respect to ten annas and the other with respect to the remaining six annas of the disputed land and they impleaded the defendants-appellants as parties to these suits in 1875. A question arose as to whether the suit was barred under Art. 46. Limitation Act of 1877 (to which Art. 47 of the present Act corresponds) and the learned Judges of the Calcutta High Court held that it was not barred and observed:

We think that Art. 46 can only apply between the parties whose possession was confirmed by the Magistrate and each one of the parties to that proceeding who was claiming possession against them, and that it does not apply in favour of one of those parties who subsequently succeeds by a regular suit in ousting them.

In a subsequent case however 23 Cal 731 (4), Hill and Rampini, JJ., felt great hesitation in following this decision and in referring the matter to the Full Bench observed:

Now we must say feel great hesitation in following the above cited ruling. It is certainly not warranted by the terms of Art. 47 into which it virtually read the words ''provided the suit is between the parties to the proceeding under the Criminal Procedure Code, in which the order respecting the possession of the property was passed'' which are not to be found there. It is therefore in reality a piece of legislation, and it gives no reason for the view it expresses. Reason might perhaps be found for the ruling in the argument that it is hard on a parson bound by an order under S. 145, Criminal P.C., that he should be bound, as it has been said, for all time, though the possession of the property may have passed from his opponent to some third party. On the other hand, it may be the policy of the law and perhaps a sound one, that, when proprietors of land dispute respecting the possession of land in such a way as to cause a likelihood of a breach of the peace, the party found to be out of possession should have only three years instead of (not "all time" but) 12 years to bring his suit for recovery of possession in whosoever hands the lands may be.

The Full Bench however found it unnecessary to decide whether the case in question had been correctly decid- ed or not and in my opinion it is not necessary for us also to decide that point, because the facts as we find them in that case were entirely different from those of the present, the principal distinguishing feature being that in that case before the expiry of the period of three years prescribed by the Limitation Act a suit had been brought by the defendants-appellants and the Roy defendants who were the successful party in the proceedings under S. 145 had been evicted from the possession of the properly. That this was an important feature of the case is clear from the fact that the learned Judges of the Calcutta High Court laid some stress upon it observing as follows:

So far as the Magistrate''s order is concerned, the present plaintiff were only bound to respect the possession of the Roy defendants, or those claiming under them, unless they instituted a suit within three years. That possession having been got rid of, and the defendants having obtained possession adversely to the Roy defendants, we do not think that Art. 10 prevents the present plaintiffs from suing the present defendants in a regular suit for declaration of title.

Section 145 (6), Criminal P.C., provides that if the Magistrate decided that one of the parties was or should be treated as being in possession of the land in dispute he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law. Thus if the successful party is evicted by means of a suit by a person other than the parties to the proceeding within the period of three years, the order of the Magistrate, being rendered ineffectual the shorter period of limitation ceases to run against the unsuccessful party, and there can be no room left for the application of Art. 47, and S. 28 will not become operative until the expiry of the limitation period laid down in the ordinary law.

The second case relied upon by the appellant is that of Adinarayana v. N. Buramma, 1925 Mad 799 = 86 IC 744 in which it was held; (1) that Art. 47, Limitation Act, is not confined in its operation to orders under S. 145, Criminal P.C., but also applies to an order passed under S. 522, Criminal P.C., restoring possession to a person who is dispossessed by a trespasser when a charge of criminal trespass is substantiated against the latter; and (2) that when a person against whom possession is claimed was not a party to the order in the criminal proceedings and did not claim under the party successful in such criminal proceedings and that order did not uphold his possession, the order is not binding on him and Art. 47 is no bar to a suit against such a person. The facts of this Case are not clearly set out in the reported decision, but as far as they can be gathered, they appear to be that one of the items of the disputed property which is referred to in the report as item No. 2 was the subject-matter of a charge of criminal trespass brought by the predecessors-in-title of defendants 2 and 3 against the vendors of the plaintiffs and the latter being found guilty, possession was restored to the former. Subsequently defendants 1, 2 and 5 who claimed at one time to be the tenants of the Maharaja of Vizianagram (defendant 4) disclaimed all interest in the land and in certain survey proceedings the Maharaja''s title was found against and defendant 3 in the suit being found to be in possession, the Maharaja as well as defendants 1, 2 and 5 acquiesced in the decision of the survey authorities. The plaintiff thereupon brought the suit against the third defendant whose contention that Art. 47 was a bar to the suit was negatived and the suit was remanded to the subordinate Court who had dismissed it on the preliminary ground of limitation without trial on the merits. Now, it docs not appear from the report whether the survey proceedings which resulted in favour of defendant 3 took place within three years of the order under S. 522, Criminal P.C., or more than three years after that order. If it took place within three years of the order then in this case also the order under S. 522 having been practically nullified by the survey proceedings, the facts of this case would bear close re-semblance to those of the case of Aukhil Chunder v. Mirza Delawar Hossein, 2 (1880) 6 CLR 93 decided by the Calcutta High Court. However that may be, if the learned Judges of the Madras High Court in Adinarayana v. N. Buramma, 1925 Mad 799 = 86 IC 744 or the learned Judges of the Calcutta High Court in Aukhil Chunder v. Mirza Delawar Hossein, 2 (1880) 6 CLR 93 intended to lay down that in no case can a suit instituted by a party who was, unsuccessful in a criminal proceeding under S. 145 or S. 522, Criminal P.C., against one who was not a party to such a proceeding be barred by S. 47, even though it may have been instituted more than three years from the order of the criminal Court, I am unable to agree to such a wide proposition and would respectfully dissent from it.

In my opinion the plaintiff''s suit was rightly dismissed by the lower appellate Court and the appeal should be dismissed with costs.

Rowland, J.

I agree.