NARAYAN THUNAJI Vs. MAHADEO RAGHO

JUDGEMENT

(1.) The plaintiff filed a suit for possession of the suit fields and for recovery of amount of Rs. 500.00 on account of mesne profits. According to the plaintiff, he was the owner of the suit fields as he has purchased them under the sale-deeds dated 13th Aug. 1957 and 26th Sept. 1957 He further contended that he was placed in possession of these fields in pursuance of these sale-deeds and he cultivated them thereafter. In Oct. 1959 the respondent began to cause obstruction to the cultivation of these fields and since dispute arose between them, the appellant-plaintiff made a report to the police. On his report proceedings under section 145 of the Code of Criminal Procedure were started in the Court of Sub-Divisional Magistrate, Bhandara. The learned Sub-Divisional Magistrate vide his order dated 2nd July 1960 upheld the possession of the respondent over those fields. The appellant filed revision petition against the order to the District Magistrate, Bhandara, who rejected the revision petition on 10th Oct. 1960. Therefore, the plaintiff filed the present suit for a declaration and for possession of the suit fields as well as mesne profits. It was contended by the plaintiff that the cause of action for the suit arose on 10th Oct. 1960 when the District Magistrate Bhandara, dismissed the revision petition.

(2.) The defendant filed preliminary written statement and raised a contention that the suit is barred by limitation because it was filed on 9th Oct. 1963, i.e., more than three years from 2nd July 1960 the date of order passed by the Sub-Divisional Magistrate. According to the defendant under Art. 47 of the Limitation Act, 1908, period of limitation is three years from the date of final order and since the final order in the instant case was passed by the Sub-Divisional Magistrate on 2nd July 1960, the suit is barred by time. This objection raised by the defendant prevailed with the lower Court and, therefore, the suit filed by the plaintiff was dismissed on the ground that it was barred by time under Art. 47 of the Limitation Act. Being aggrieved by this judgment and decree passed by the 2nd Joint Civil Judge, Junior Division, Bhandara, the plaintiff filed an appeal which was heard and decided by the District Judge, Bhandara. The District Judge, Bhandara, vide his judgment dated 9th Dec. 1964, also held that the suit was barred by limitation and, therefore dismissed the appeal filed by the plaintiff. Against these judgments and decrees the present second appeal has been filed by the original plaintiff.

(3.) Shri Kolarkar, the learned counsel for the appellant, contended before me that the learned Judges of both the Courts below committed an error in holding that the suit was barred by limitation. According to Shri Kolarkar, cause of action for filing the present suit arose on 10th Oct. 1960 when the revision petition was dismissed by the District Magistrate, Bhandara. It is contended by Shri Kolarkar that the order passed by the District Magistrate, Bhandara, in revision petition is the final order in the case, as contemplated by Art. 47 of the Limitation Act. As the plaintiff filed the suit within the period of three years from the said order of the District Magistrate, the suit filed by the plaintiff is within time. For this proposition Shri Kolarkar has relied upon the decision of this Court in Shri Mandir Mahabir Vs. Watu, 1970 Mh. LJ. Note 16 .