Narasingha Rout vs Sricharan Panda and Others

Misra, J.—Plaintiff''s suit was for declaration of title and recovery of possession. Title is based on a registered sale deed (Ex. 1) dated 11-4-1956 for a consideration of Rs. 1400/ - executed by Defendant-2 on behalf of himself and his sons and Defendant-l, the mother-in-law of Defendant-2. Plaintiff''s case is that from the date of purchase he was in possession. In 1957 Defendant-3 started a proceeding u/s 144, Code of Criminal Procedure which ended in his favour. Defendants 1 and 2 supported the case of the Plaintiff. Defendant-3 claimed the disputed land as his ancestral property and asserted that he and his ancestors are in possession for the last 80 years or so and that Defendants 1 and 2 had no title or possession. It was further averred that the Plaintiff had no possession within 12 years of the suit and in a proceeding u/s 145, Code of Criminal Procedure between him and Defendants 1 and 2, the land was delivered to him in 1952, and that no suit having been filed within three years of the final order, this suit is barred under Article 47 of the Limitation Act.

The suit was decreed by the learned Munsif on the finding that Defendants 1 and 2 had a valid title which was second to the Plaintiff and that the Plaintiff had possession within 12 years of the suit. In appeal, the learned Subordinate Judge recorded the following finding and dismissed the suit:

It is crystal clear from the evidence, both documentary and oral, on either side that Plaintiff has not acquired any title in the suit land by virtue of his sale deed executed by Defendant No. 2 who himself had no title and possession in it and Defendant No. 3 is in possession of the suit land for more than 12 years prior to the institution of the suit.

He, however, held that the suit was not barred under Article 47 of the Limitation Act.

The second appeal is concluded by a pure finding of fact that Defendant-3 was in possession of the disputed land for more than 12 years before the suit, and that the Plaintiff or his predecessors-in-interest were not in possession within 12 years of the suit. The learned Subordinate Judge was, however, wrong in saying that the suit was not barred by limitation under Article 47.

The facts and circumstances relating to the applicability of Article 17, Limitation Act, may be clearly stated as the judgments of the Courts below are unsatisfactory in not discussing this aspect of the case and in not stating clearly even the relevant facts. In M.C. 11/1952 in the Court of the Special First Class Magistrate, Chhotrapur, there was a proceeding u/s 145, Code of Criminal Procedure between Defendant-3 as the first party and Defendant-2 as the second party. In M.C. 43 of 1951, which related to refund of Rs. 300/ -. the value of the usufruct, deposited in Court during the pendency of the proceeding u/s 145, Criminal Procedure Code, two applications (Ext. M and M/1) were filed on 26-8-1952. Ex. M was filed by deftndant-2 clearly admitting that the disputed land was in possession of Defendant-3 and that the possession should be delivered to him, Defendant-2 having no rights therein. Ex. M/1 is the petition of compromise signed by Defendants 2 and 3. Therein Survey plots 332 and 336, which are the disputed land, have been mentioned. The compromise petition recited that Defendant-2 would never go upon the land and the Rs. 3001- deposited in Court would be paid to the first party and the proceeding u/s 145, Code of Criminal Procedure should be dropped and disposed of in terms of the compromise. On the same day the learned Magistrate passed the following order:

Both parties have filed a petition today compromising the dispute. Before accepting the compromise it is necessary to know if there is still apprehension of on each of peace in respect of the disputed land.

A report was called for from the S.I. Purusottampur On receipt of the order, the Magistrate passed the following order No. 28-8-1952:

Parties present. S.I.''s report received according to which there is no apprehension of breach of peace in respect of the disputed lands. Parties have composed which is accepted and further proceedings are stayed u/s 145(5), Criminal Procedure Code Orders issued u/s 145(1) and (4) are cancelled according to the terms of the compromise, the disputed land should be made over to the first party. Inform S.I. to deliver possession of the attached land to the first party and obtain his receipt and send the same to this Court.

On. 24-9-1952, the learned Magistrate passed an order to the effect -

As possession of the disputed land has been restored to the first party Sricharan Panda, he is allowed to receive the deposited amount of Rs. 300/ - which is the income of the disputed land during 1366 Fasli year.... Bill prepared and paid to the first party today. S.I.''s report received. No further action.

On the aforesaid facts the question for consideration is whether the filial order respecting the possession of immovable property made under the Code of Criminal Procedure was passed by the Magistrate in 192 RO as to attract Article 47 of the Limitation Act, 1968, The suit was admittedly filed beyond three years on 28-1-1958;

Article 47 reads thus -

In a suit filed by any person bound by an order respecting the possession of immovable property made under the Code of Criminal Procedure, the limitation is three years from the date of the final order in the case. There cannot be any dispute that the aforesaid orders passed in the proceedings u/s 145, Code of Criminal Procedure were in respect of possession of immovable property.. By those orders the property that was attached u/s 145, Code of Criminal Procedure was restored to Defendant-3 on the basis of the compromise petition. The short question is whether such orders respecting possession of immovable property were made under the Code of Criminal Procedure. The learned Subordinate Judge seems to be of opinion that since the proceedings u/s 145, Code of Criminal Procedure were dropped, the orders were not made under the Code of Criminal Procedure. The view suffers from confusion of thought.

Section 145(5), Code of Criminal Procedure lays down that nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that such dispute as aforesaid exists or has existed: and in such case the Magistrate shall cancel his said order and all further proceedings thereon shall be stayed, but, subject to such cancellation the order of the Magistrate under Sub-section (1) shall be final. Defendant-2 was the person interested. It is also not disputed that he was representing Defendant 1 also. Defendant-2 appeared and showed cause by the compromise petition that no such dispute likely to cause breach of the peace exist. The Magistrate on a fun inquiry into the compromise petition cancelled the preliminary order passed u/s 145(I). So far as this Court is concerned, it is well settled that after cancellation of order u/s 145, Criminal Procedure Code, the Magistrate has full jurisdiction to direct restoration of the attached property and the crops to the party from whose, possession they were taken. There is no express provision under'' Section 145, for passing ancillary or incidental orders for disposal of the attached property. The Magistrate has jurisdiction to, invoke the power conferred upon him u/s 517(1), Criminal Procedure Code and return the attached property to the person from whose custody it was taken. Baidydnath Mohanty and Anr. v. Kunjabehari Das Mohapatra and fourteen Ors. 22 C.L.T. 435, Dasa Mohanty and Anr. v. Gadadhar Samal and two Ors. 23 C.L.T 37, Mathuri Mallik v. Satrughna, Giri and four Ors. 25 C.L.T. 340, and

Metaki Khadangani v. Adikondo Podhano 31 C.L.T. 132, are cases directly on the point.

Mr. Murty contends that this power is not exercised u/s 517(1), Code of Criminal Procedure which deals with only movable and not immovable properties as in Section 522, Criminal Procedure Code. The argument is based on some authorities taking that view. This contention is not sound. Section 517(1), Code of Criminal Procedure lays down that when an inquiry or a trial in any Criminal Court is concluded the Court may Innate such order as it thinks fit for the disposal by destruction, confiscation, or delivery to any person claiming to be entitled to possession thereof or otherwise of any property or document produced before it or in its custody or regarding which any offence appears to have been committed or which has been used for the commission of any offence. Section 522(1), Code of Criminal Procedure is to the effect that whenever a person is convicted of an offence attended by criminal force or show of force or by 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 person or at any time within one month from the date of the conviction order the person dispossessed to be restored to the possession of the same.

Mr. Murty''s contention is that Section 522, in terms refers to immovable property and that the identical matter being covered in Section 517(1), by necessary implication immovable property must be excluded from its am bit. The argument is devoid of force. It has been held by this Court in a series of decisions that in exercise of the ancillary power, after dropping of a proceeding u/s 145, Criminal Procedure Code, the Magistrate can return the attached property to the persons from whose possession it was taken. Doubtless in those cases, the argument in the form presented by Mr. Murty had not been specifically advanced. That does not, however, take away the value of those authorities