Rampal Singh vs Mansukh Rai Khemka

Chatterji, J.—This is an appeal by the defendants whics arises out of a suit for recovery of possession of 21.92 acres or 32 bighas, 1 katha, 15 dhurs of bakasht lands in village Barhee Pali Tajpur Ind. These lands are said to be comprised in a patti of la Id and odd share which formerly belonged to Rai Bahadur Tukanath Singh. He mortgaged the patti with some other property to the plaintiffs'' predecessor Ramkishun Ram under a simple mortgage bond dated 17th September 1891, for Rs. 15,001. On the basis of this mortgage, Ramkishun Ram obtained a mortgage decree on 30th April 1908. In execution of that decree he purchased the mortgaged properties on 15th September 1914, and obtained delivery of possession over the same on 1st June 1915. The sale proceeds being insufficient, he obtained a decree under Order 34, Rule 6, Civil P.C. In execution of this decree he purchased another patti of 19 dams and odd share in the same village on 27th August 1918, and took delivery of possession on 6th July 1919.

The plaintiffs'' case is that since the delivery of possession taken on 1st June 1915, Ramkishun Ram and after him the plaintiffs were all along in possession of the disputed lands. But in 1932 there was a proceeding under s 145, Criminal P.C., with regard to these lands between the plaintiffs and defendants 1 and 2. In that case defendants 1 and 2 alleged that the disputed lands appertained to the patti of 19 dams and odd share and were given in usufructuary mortgage by Rai Bahadur Tukanath Singh to Banshi Singh, Karu Singh and Bija Singh under a deed dated 28th September 1900, for Rs. 3151 and that they (defendants 1 and 2), having purchased one bigha out of the disputed lands from Rai Bahadur'' Tukanath Singh''s son Jhalak Kishore Singh by an unregistered sale deed dated 5th March 1916, redeemed the said usufructuary mortgage and came into possession of the entire disputed lands. The Magistrate decided the case u/s 145 in favour of the defendants on 4th August 1932. The plaintiffs filed an application for revision before the Sessions Judge of Monghyr who made a reference to the High Court on 29th Sep. tember 1932. But the High Court by its order dated 11th November 1932, discharged the reference.

The present suit was brought on 13th November 1935. The plaintiffs alleged that the usufructuary mortgage of Banshi, Kara and Bija was redeemed by Rai Bahadur Tukanath himself, that the unregistered sale deed propounded by defendants 1 and 2 is a fraudulent and collusive document and that the defendants were never in possession of the disputed lands until the decision u/s 145, Criminal P.C., The remaining defendants are members of a joint Mitakshara family with defendants 1 and 2 who are the managing members.

The suit was contested on the grounds, inter alia, that it was barred by limitation, that the disputed lands appertain to patti of 19 dams and odd share and not to the patti of la id and odd, and that the defendants, having purchased 1 bigha out of the disputed lands, redeemed the usufructuary mortgage of Banshi, Kara and Bija and came into possession of the entire disputed lands.

The learned Subordinate Judge decreed the suit, holding that the disputed lands appertain to the patti of la Id and odd share which was purchased by Ramkishun Ram in 1914 in execution of his mortgage decree, that the defendants'' unregistered sale deed dated 5th March 1916, is not a genuine document, that the usufructuary mortgage of Banshi, Karu and Bija was redeemed not by the defendants but by Tukanath himself, that since the delivery of possession taken in 1915 Ramkishun Ram and after him the plaintiffs were all along in possession of the disputed lands till the decision in the case u/s 145, Criminal P.C., and that the suit was not barred by limitation. The only point urged in this appeal by Mr. Sushil Madhab Mulliek on behalf of the appellants is that the suit is barred by limitation under the three years'' rule prescribed by Article 47, Schedule 1, Limitation Act, as well as under the 12 years'' rule. Article 47, Schedule 1, Limitation Act, (9 of 1908) is as follows:

____________________________________________________________________ Period of Time from Description of suit. lamitation. which period begins to run. ____________________________________________________________________ By any person Three The date of bound by an order years. the final order respecting the posses in the case. sion of immovable property made under the Criminal Procedure Code, 1898, or the Mamlatdar''s Courts Act, 1906, or by any one claiming under such person, to recover the property comprised in such order. _______________________________________________________________________ In the present case the following are the relevant dates: Order of the Magistrate ... 4th August 1932. Order of the High Court ... 11th November 1932. Present suit instituted ... 13th November 1935. (9th to 12th November 1935, were holidays). 6. Mr. Mullick''s contention is that the "final order" is the order of the Magistrate and the present suit, being instituted more than three years after the date of the Magistrate''s order, is manifestly out of time.

On the other hand, Dr. D.N. Mitter for the respondents contends, and the Subordinate Judge has also held, that in the present case the "final order" is the order of the High Court. The question, therefore, turns on the true meaning of "the final order in the case." Mr. Mulliek relies on the decision of this Court in Lachman Singh v. Diljan Ali AIR 1918 Pat. 504 and on the decisions of the Calcutta High Court in Jagannath v. Ondal Coal Co. Ltd. 12 C.W.N. 840 and Kangli Churn Sah v. Zomurrudonnissa Khatun (81) 6 Cal. 709.

Both in Lachman Singh v. Diljan Ali AIR 1918 Pat. 504 and Jagannath v. Ondal Coal Co. Ltd. 12 C.W.N. 840 it was held that the order of the Magistrate u/s 145, Criminal P.C., and not of the High Court is the final order and the three years under Article 47 should be counted from the date of the Magistrate''s order. But these cases were decided when the Criminal Procedure Code of 1898, as it stood before the amendment of 1923, was in force.

In Section.435 there was then Sub-section (3) which provided that proceedings under chap. XII (which includes Section 145) were not proceedings within the meaning of that section; in other words, orders made in proceedings under Chap. XII were not subject to revision. By the Amending Act 18 of 1923, Sub-section (3) of Section 435 was altogether omitted so that u/s 435 of the Code; as it now stands, an order made u/s 145 is subject to revision. Before the amendment of 1923, the High Court had no power to interfere with an order u/s 145 except under its general power of superintendence under the Government of India Act. Any order passed by the High Court in exercise of its power of superintendence would not be an order made under the Criminal Procedure Code.

In fact this is the reason for the decision in Jagannath v. Ondal Coal Co. Ltd. 12 C.W.N. 840 as will appear from the following passage:

Orders u/s 145, Criminal P.C., are not subject to appeal, review or revision. This is apparent from Sub-section (3) of Section 485, Criminal P.C. No doubt a rule was issued by this Court in connexion with this order. But that was issued u/s 15, Charter Act and it could never have been contemplated by the Legislature when it drew up the provisions of Article 47, Limitation Act that rules issued under our powers of ''superintendence under the Charter Act'', and disposed of by us should some within the meaning of the words ''final order'' in the case.

In Lachman Singh v. Diljan Ali AIR 1918 Pat. 504 which was practically-based on Jagannath v. Ondal Coal Co. Ltd. 12 C.W.N. 840 the learned Judges said:

The order of the Magistrate is itself a final order. It is not subject to appeal. It can only be set aside under the power of superintendence vested in a High Court if made without jurisdiction. The decision of the High Court confirming the jurisdiction of the Court passing the order cannot affect the date from which it came into force.

From both these decisions, it is fairly obvious that the order of the Magistrate was taken to be the ''final order'' because under the Criminal Procedure Code, as it then stood, there was no provision conferring any power on any superior Court to interfere with the Magistrate''s order. Indeed the Criminal Procedure Code, makes a clear distinction between an appeal and a revision, because, in the case of an appeal, the party has a right to be heard (Section 421 of the Code), but there is no such right in the case of a revision (Section 440 of the Code). Revision is entirely in the discretion of the Court. But where the Court does exercise its power of revision u/s 435 of the Code, the order which is ultimately passed by the High Court u/s 439 of the Code is no less effective than an order passed on appeal. Section 439 itself provides that in revision the High Court may in its discretion exercise any of the powers of an appellate Court.

If therefore an order an order passed by an appellate Court could be regarded as the final order, there is no reason why an order passed by the High Court in exercise of its power of revision u/s 439 of the Code could not be equally regarded as the final order. Whether the High Court ultimately interferes in revision or not, its order is none the less the final order. Where, as in the present case, the Sessions Judge in exercise of his power u/s 435 makes a reference to the High Court u/s 438 with the recommendation that the order of the Magistrate be set aside, the matter remains sub judice so long as it is not finally determined by the High Court. The order of the High Court passed u/s 439 will be the final order in the case. In this view the period of limitation under Article 47 in the present case must be computed from the date of the] High Court''s order.

In the case in Kangali Churn Sah v. Zamurrudonnissa Khatun (81) 6 Cal. 709, the question that was actually raised before the High Court was whether Article 47 of Schedule 2 of the former Limitation Act (Act 15 of 1877) was applicable to immovable as well as moveable property. But, from the facts of that case, it appears that the suit, which was brought beyond three years from the date of the Magistrate''s order but within three years from the date of the order of the Sessions Judge, was held to be barred by limitation. Article 47, Limitation Act (15 of 1877), corresponded to Article 47 of the present Limitation Act (9 of 1908) with this difference that the Article of the former Act had reference to "an order respecting the possession of property made under the Criminal P.C., Chap. 40," whereas the present Article refers to "an order respecting the possession of immovable property made under the Criminal P.C., 1898." Thus the former Article, though it embraced both moveable and immovable property, was otherwise more limited in its scope.

It must also be mentioned that the Criminal Procedure Code, which was in force when the case in Kangali Churn Sah v. Zamurrudonnissa Khatun (81) 6 Cal. 709 was decided, was the Code of 1872, i.e., Act 10 of 1872. The sections of that Code corresponding to Sections 435, 438 and 439 of the present Code were Sections 294 to 297 in chap. 22. u/s 520 of the Code of 1872 orders made under Sections 518 and 519 (corresponding to Sections 144 and 143 of the Code of 1898) were not judicial proceedings, but there was no such exception in the case of orders made under chap. 40 (now Chap. 12) of the Code; in other words, orders made under chap. 40 were subject to revision. The position therefore was much the same as under the present Code with the amendment of 1923.

However, apart from the fact that the question now before us was not raised or decided in Kangali Churn Sah v. Zamurrudonnissa Khatun (81) 6 Cal. 709, that case is dissimilar to the present case in two respects. In the first place, the order passed in revision in that case was that of the Sessions Judge and not of the High Court. u/s 296, Criminal P.C. of 1872 (corresponding to Section 438 of the present Code) the Sessions Judge had no power to pass any final order himself and could only report to the High Court which was to pass the final order u/s 297 of the Code of 1872 (corresponding to Section 439 of the present Code). Therefore the order of the Sessions Judge passed in that case could not be regarded as the final order. In the next place, Article 47, Limitation Act of 1877 was limited to orders made under the Criminal P.C., chap. 40 only. The order passed by the Sessions Judge in exercise of his power of revision under chap. 22 would not be an order made under chap. 40 of the Code. The "final order" in Col. 3 of Article 47, Limitation Act, must be understood to refer to the order contemplated by Col. 1 of the same Article.

Mr. Mullick contends that the expression "final order in the case" in Col. 3 of Article 47, Limitation Act, means a final order as distinguished from an interlocutory order. No doubt Section 145, Sub-section (4) provides for an interlocutory order in case of emergency, but such interlocutory order is not obviously contemplated by Col. 1 of Article 47, Limitation Act. Further Section 522, Criminal P.C., which by the terms of Article 47, Limitation Act, falls in its purview does not provide for any interlocutory order.

Mr. Mullick refers by way of analogy to certain decisions bearing on other Articles of the Limitation Act, particularly to Oleo-Unnissa v. Buldeo Narain Singh (67) 7 W.R. 151 and Juscurn Boid v. Prithichand Lal AIR 1918 P.C. 151. The case in Oleo-Unnissa v. Buldeo Narain Singh (67) 7 W.R. 151 had reference to the Limitation Act (14 of 1859), Section 1, Clause (5), which provided that the period of limitation applicable "to suits to alter or set aside summary decisions and orders of any of the civil Courts not established by Royal Charter, when such suit is maintainable" was "one year from the date of the final decision, award or order in the case." It was held that.

the final decision, award, or order in the case intended by Clause (5) of Section 1 is the final decision of the Court which has competent jurisdiction to determine the case finally. Consequently, the order of the Principal Sudder Ameen, against which no appeal would lie to this Court, was the final order in the case, and therefore the period of limitation dates from the time when that order was passed, and not from the time when the High Court passed an order declaring that an appeal would not lie from that order of the Principal Sudder Ameen.

It is obvious that the order of the High Court dismissing an appeal for want of jurisdiction could not be the final order. The case in Juscurn Boid v. Prithichand Lal AIR 1918 P.C. 151, was decided with reference to Article 97, Schedule 1, Limitation Act. The suit was brought by an auction purchaser of a patni taluk for recovery of his purchase money after the patni sale was set aside by suit brought u/s 14, Patni Regulation. The trial Court had decreed the suit, reversing the sale, and its decree was confirmed on appeal. The question arose whether limitation under Article 97 should run from the date of the trial Court''s decree or from that of the appellate decree. Article 97 prescribes that the period of limitation for a suit "for money paid upon an existing consideration which afterwards fails" is three years from "the date of the failure." Their Lordships held that the "the failure of consideration was at the date of the first Court''s decree." This decision bears no analogy to the present case. Mr. Mullick however relies on the following observation of their Lordships:

Under the Indian law and procedure art original decree is not suspended by presentation of an appeal nor is its operation interrupted where the decree on appeal is one of dismissal.

This is undoubtedly true, but it is of no assistance in construing the particular Article of the Limitation Act with which we are here concerned. Dr. D.N. Mitter, on the other hand, relies on the decision of the Privy Council in AIR 1932 165 (Privy Council) , and the Full Bench decision of the Madras High Court in Chidambara Nadar v. Rama Nadar AIR 1937 Mad. 385. In the Privy Council case what was actually decided was that an appeal "is no less an appeal because it is irregular or incompetent" and such an appeal would extend limitation under Article 182, Clause (2), Limitation Act. In the Madras case it was held that the term "appeal" in Article 182, Clause (2), Limitation Act, is not used in a restrictive sense so as to exclude revision petitions and the expression "the appellate Court" in the said Article is not confined to a Court exercising appellate power as opposed to revisional powers. These cases are therefore not in point.

In my judgment the suit is not barred by Article 47, Limitation Act. I should however like to make it clear that where the High Court summarily dismiss an application for revision, whether its'' order would be the final order within the meaning of Article 47, Limitation Act, is a question upon which I express no opinion.

I shall now consider the 12 years'' rule of limitation. The plaintiffs'' case is that the disputed lands appertain to the patti of 1a, 1d and odd share which was purchased by Ramkishun Ram on 15th September 1914, and of which he took delivery of possession on 1st June 1915. Admittedly, the disputed lands were given in usufructuary mortgage to Banshi Singh, Karu Singh and Bija Singh under the deed of Ex. F(1) dated 28th September 1900. These mortgagees were recorded to be in possession of the lands in the khatian Ex. 13 (d) finally published in July 1910. The khatian EX. 13 (d), taken along with the corresponding khewat Ex. 14 (a), shows that the disputed lands appertain to the patti of 1a 1d share. In the mortgage bond, Ex. F (1) however the lands were described as appertaining to the patti of 19 dams and odd share. The plaintiffs suggest that this was fraudulently done by Rai Bahadur Tukanath Singh with an ulterior motive. Apart from the Record of Rights, the defendants'' own unregistered sale deed Ex. K, dated 5th March 1916, shows that the one bigha out of the, disputed lands which is said to have been purchased there under appertains to the patti of 1a 1d share. The learned Subordinate Judge has held that the disputed lands really appertain to the patti of 1a 1d share, and though Mr. Mullick attempted to show that this finding is wrong, he argued the question of limitation on the assumption that it is correct.

It is common ground that the usufructuary mortgage of Banshi, Kara and Bija was redeemed. The plaintiffs'' case is that the redemption was by Tukanath himself. The defendants, on the other hand, assert that in 1916 shortly after the purchase of the one bigha under the unregistered sale deed, Ex. K they redeemed the mortgage en payment of Rs. 3151. The Subordinate Judge''s finding that the sale deed Ex. K is not a genuine document has not been challenged before us. That being so it is impossible to believe that the defendants without having any title should redeem the mortgage on payment of Rs. 8151. No doubt the mortgage bond was produced by them with endorsements showing payment through Kashi Singh, defendant 2. Curiously enough the endorsements are not dated. The disputed lands as appertaining to the patti of 1a 1d share had already passed under the auction purchase of 1914 to Ramkishun Ram.

It is, therefore, absurd to suppose that after 1914 Tukanath''s son (Tukanath having died in 1912) or anybody claiming through him would redeem the mortgage. The plaintiffs have adduced evidence to show that about 1911 Tukanath himself redeemed the mortgage. P.W'' Section 5, 7 and 12 have deposed on the point. The evidence of P.W. 5 may not be convincing or reliable because he says the bharna bond was redeemed four years before survey, and he is a servant of one Badri Narayan Singh with whom the defendants are, according to his own evidence, on terms of litigation. There is no sufficient reason, however, to discard the evidence of P.W. 7 and P. W 12. P.W. 7 is grandson of Karu Singh, one of the mortgagees. The only comment on his evidence is that he admits that all his lands have been sold. P.W. 12 is sought to be discredited on the simple ground that he is the raiyat of the plaintiff. The learned Subordinate Judge has believed the evidence adduced by the plaintiffs and it is very difficult to hold that his view of the evidence is wrong.

Mr. Mullick strenuously argues that it is incredible that Tukanath would redeem the mortgage when Ramkishun Ram''s decree on the prior mortgage was being executed. He refers to the suit register Ex. 23 which shows that during Tukanath''s life time Ramkishun Ram took out execution of his mortgage decree in 1908 and 1909 and again in 1910. But from that very register it appears that in 1909 Tukanath paid at first Rs. 550 and again Rs. 2800, total Rs. 3350. It is, therefore, evident that Tukanath was making, payments towards the decree. It may be that Tukanath thought he could retain the lands as part of his 19 dams patti as asserted by him in the mortgage bond Ex. F(1). Be that as it may, the fact remains that the mortgage was undoubtedly redeemed. The question is, when and by whom? Redemption after 1914, that is to say, after the auction purchase by Ramkishun Ram was absurd. Redemption by defendants is definitely disproved. Redemption after Tukanath''s death by his son Jhalak Kishore between 1912 and 1914 is quite unlikely. Under these circumstances; I do not think that the learned Subordinate Judge was wrong in accepting the plaintiffs'' case that it was Tukanath himself who redeemed the mortgage.

Mr. Mullick lays much strees on the fact that the satisfied mortgage bond was produced by the defendants. But Rampal Singh, defendant 1, was, as the evidence shows, the karpardaz of Rai Bahadur Tukanath Singh, and Kashi Singh defendant 2, is brother of Rampal Singh. Kashi Singh is said to have made the payments to the mortgagees and his name appears in the endorsements on the back of the bond. But neither he nor Rampal has been examined. No importance, therefore, can be attached to the fact that the bond was produced by the defendants. The plaintiffs'' evidence is that there was no endorsement on the back of the bond which was simply returned to Tukanath. It is said that at the time of return of the bond either its head must have been torn or there must have been an endorsement of satisfaction. But, on the other hand, endorsement without any date is very suspicious. Bija Singh, D.w. 8, one of the mortgagees, proves one of the endorsements Ex. J (1) to be in his handwriting. But in his cross-examination when the endorsements were shown to him he said "They do not contain my signature. My sight is defective." This throws a great doubt on the genuineness of the endorsements.

Tukanath having redeemed the usufructuary mortgage, the disputed lands were in the possession of his son Jhalak Kishore Singh at the time of the auction purchase of Ramkishun Ram. The order No. 12, dated 15th September 1914, in the order sheet Ex. 2 in the execution case shows that the la Id patti which was lot No. 1 was valued at Rs. 14,000 on the basis of the annual income which was ascertained to be Bs. 700 the bulk of which was derived from 60 bighas of khudkasht land. These 60 bighas of khudkasht land which were most valuable apparently included the disputed 82 bighas and odd. The khatian Ex. 13 (d) shows that the total area of bakasht lands in khata No. 188 was 37.84 acres which would be equivalent to more than 55 bighas. Ramkishun. Ram, having purchased the la id patti of Rs. 14,000, was not likely to remain idle if he did not get actual possession of the 60 bighas which formed the most valuable part of the patti he purchased. It is not suggested that the plaintiffs are in possession of some other lands making up 60 bighas as part of la id patti.

The plaintiffs examined several witnesses to prove their possession over the disputed lands. Though the learned Subordinate Judge has not discussed their evidence in detail, he has believed their evidence and come to the finding that the plaintiffs were in possession of the disputed lands till the decision in the case u/s 145, Criminal P.C. The evidence on behalf of the plaintiffs is consistent with the probabilities.

In the circumstances, it is difficult to hold that the finding of the Subordinate Judge, is not correct. Mr. Mullick argues that this being a suit in ejectment, the plaintiffs must adduce satisfactory evidence to prove their possession within 12 years. He complains that what the Subordinate Judge has done is that he has discussed the evidence of the defendants and having disbelieved their evidence, he has held that the plaintiffs were in possession within 12 years. Of course, his judgment is open to the criticism that he has not discussed the evidence of the plaintiffs'' witnesses on the question of possession.

But taking his judgment as a whole, and considering the evidence and the probabilities, I am unable to hold that his finding is wrong. The contentions of the appellants fail and I would dismiss the appeal with costs.