BRIJ BHUSHAN DUBEY Vs. PARAIDHAN DUBEY

JUDGEMENT

(1.) THE appellants and respondents Nos. 1 and 2 are descendants of a common ancestor Ram Rachha Dubey. They were joint sir holders of the land in dispute. A suit was filed by the appellants for joint possession over the land in dispute in the Civil Court which was decreed and joint possession was delivered to them in ex ecution of the said decree on 1-3-1929. It appears that proceedings under Section 145 of the Code of Criminal Procedure were also initiated in respect of this land and an order was passed on 31-5-1929 holding Ram Swarup Dubey father of respondent No. 1 to be in physical possession over the land in dispute. The Magistrate passing the aforesaid order took into consideration the decree passed for joint possession by the Civil Court and speci fically held that even though the appellants will not be entitled to interfere with the physi cal possession of Ram Swarup Dubey over the land in dispute until they obtained a decree from a competent Court for posses sion, they could if they were entitled to pro fits by virtue of the decree passed by the Civil Court, recover the same through a competent Court. It was specifically held in the said order that till the appellants got their share partitioned, they were entitled to their share of profits of the land in dispute. From the evidence produced by the parties it appears that thereafter the appellants did recover profits of their share from the said Ram Swarup Dubey and, in fact, in one of such suits for profit, viz., suit No. 2 of 1941, the parties entered into a compromise on the basis of which the claim of the appellants for profits was decreed at the rate of Rupees 31/12.00 per year with interest. The appellants seem to have been satisfied with their joint possession in the sense that they continued to get their share of profits and did not in stitute a suit for partition. When the village where the land in dispute is situated was brought under consolidation operations, they made a claim for their share in it. The con solidation authorities, however, repelled their claim mainly relying upon Art. 47 of the Indian Limitation Act, 1908. It was held by these authorities that since these appellants did not file a suit for possession within three years from the date of the order passed in proceedings under Section 145, Criminal P. C. their rights got extinguished by virtue of Sec tion 28 of the Indian Limitation Act. The appellants instituted a writ petition in this Court which has been dismissed by a learned Single Judge on the same ground. Hence, this special appeal.

(2.) ARTICLE 47 aforesaid provides three years as the period of limitation for filing a suit to recover the property comprised in an order respecting the possession of immovable property made under the Code of Criminal Procedure 1898. The starting point of limita tion is mentioned as the date of the final order in the case. For the respondents re liance was placed on Atale Sunarri v. Talib Husain, (AIR 1930 Cal 612); Jai Devi v. Dakshini Din, (AIR 1937 All 300) and Mehar Ali v. Kalut, (AIR 1964 All 377), wherein it was held that Art. 47 applied even to suits by a co-owner either for joint possession or for partition, if he had been ousted from pos session by virtue of an order passed under Section 145, Criminal Procedure Code. We express no opinion on the question as to whether the words "to recover the property comprised in such order" used in Article 47 are wide enough to include even a suit for joint possession or partition by a co-sharer inasmuch as on the facts of the present case we find it unnecessary to do so.

(3.) IN view of the fact that successive claims of the appellants for profits were decreed and, in fact, one of them on the basis of a compromise, even after the order under Section 145, Criminal Procedure Code was passed and in view of the further fact that the said order itself specifically recog nised the rights of the appellants to get pro fits of their share, it cannot be said that the respondents were in possession to the exclu sion and ouster of the appellants within the meaning of the aforesaid observations in the case of Mohammad Baqar, AIR 1956 SC 548 (supra).