Udaibhan Singh and Others vs Paras Pande and Others

Agarwala, J.—The only question of law which falls to be decided in this appeal is one of limitation and the facts necessary for the decision of that question are few. As a result of a dispute between the landlord and tenants of the land which is the subject-matter of the present application a proceeding u/s 145, Criminal P.C., was initiated. This proceeding resulted in an order in favour of the landlord on 18th July 1936, that is to say, on that date the landlord was found to be in possession and the tenants were prohibited from disturbing the landlord''s possession until they should establish their own right to possession in a Court of competent jurisdiction. On 21st September 1938, the tenants instituted the present case alleging that; the land was their occupancy holding and that they had been dispossessed in consequence of the order u/s 145, on July 1936. It is to be observed that the suit was instituted more than two years after the date of the order. The question which has been raised was whether the period of limitation for the suit was that prescribed by Schedule 3, Article 3, Bihar Tenancy Act, or that prescribed by Article 47, Limitation Act, 1908. The period prescribed by the Tenancy Act is two years from the date of dispossession. The period prescribed by Article 47, Limitation Act, is three years. The suit contemplated by Article 47 is a suit, by a person bound by an order respecting the possession of immovable property made under the Criminal Procedure Code to recover the property comprised in the order. The terminus a quo for the prescribed period of three years is the date of the final order in the case. If therefore this article applies, the suit is undoubtedly in time. But it is contended on behalf of the landlords, who are appellants before me that the period prescribed by the Tenancy Act applies to this case. Article 3 of Schedule 3, Tenancy Act, governs a suit to recover pos'' session of land claimed by the plaintiff as a raiyat or an under raiyat, and the terminus a quo for the prescribed period is the date of dispossession. In view of the Preamble of the Tenancy Act it has been held in this Court, and there is no dispute about it, that the class of suits to which Article 3 of Sob. 3, applies is a suit by a raiyat against a landlord who has dispossessed him qua landlord. The plaintiff, according to the rending of the Courts below, is a raiyat and the defendant is the plaintiff''s landlord. For the application of Article 3 of Schedule 3 two conditions are necessary, viz., that the plaintiff has been dispossessed and that the dispossession has been by his landlord as such. If these two conditions exist, the suit is of the class intended to be covered by Article 3 of Schedule 3, Tenancy Act, and as, this Act is a special Act, it will govern the present case in preference to the provisions of the general law of limitation.

Now, can it be said that a person against whom an order u/s 145, Criminal P.C., has been passed has been dispossessed thereby? In this Court that matter has been considered by a Division Bench in Jurawan Singh and Others Vs. Ramsarekh Singh and Others, , where Kulwant Sahay, J. delivering the judgment of the Court observed:

The question of law raised is that the effect of the order under See. 145 declaring the defendants-first-party to be in possession of the 200 bighas of land amounts to dispossession of the plaintiffs by the landlords, and therefore the suit, having been filed more than two years after the date of the order was barred under Article 3, Schedule 3, Ben. Ten. Act. In my opinion this contention is not sound. The fact that the defendants first party were declared to be in possession did not amount to a dispossession by the landlord. If the dispossession was caused by the order of the Magistrate it cannot be taken to be a dispossession by the landlord.

Now, this passage appears to me to mean that when an order u/s 145, Criminal P.C., is made affirming the possession of one party and forbidding the other party from disturbing that possession nobody is dispossessed at all. Therefore, Article 3 of Schedule 3. does not apply to a suit, by a person against whom an order is made, for recovering possession. The second conclusion to be deduced from the passage which I have quoted above is that if the order is to be regarded as dispossession of the person against whom it was made then it is not dispossession by a landlord as such. It follows from that that in no case can an order u/s 145 be regarded as dispossession by a landlord for the purpose of Article 3 of Schedule 3, Tenancy Act. Consequently, the article applicable is Article 47, Limitation Act, and this article applies to the facts of this case. The result is that the appeal fails and must be dismissed with costs. Leave to appeal under the Letters Patent is granted.