BINGI KURMAYYA Vs. WOONA BHIMAYYA SUBUDHI

JUDGEMENT

(1.) THESE appeals raise an interesting question of law as to the correct interpretation of the expression 'final order' occurring in column 3 of Article 47 of the Indian Limitation Act. 1908 (hereinafter referred to as the Act ). One Woona bhimayya Subudhi instituted a suit in the Court of the Munsif Berhampur for recovery of possession of 11. 95 acres of land and for damages. He claimed title thereto on the basis of a purchase in Court auction in 1947. As the defendants created trouble in respect of his possession of the properties, a proceeding under section 145 of the Code of Criminal Procedure (hereinafter referred to as the code) was initiated in M. C. No. 32 of 1950 in the Court of the Magistrate. The magistrate by his order dated 30-8-1952 declared the possession of the defendants. Against that order, the plaintiff filed a revision in this Court. The revision petition was admitted and heard and was dismissed on 6-12-1954 (Ext. 5 ). The plaintiff thereupon instituted the suit giving rise to these appeals on 6-121957. The defendants resisted the plaintiff's claim on merits and also on the ground that the suit was barred by limitation having been filed more than three years after the date of the Magistrate's order. There is no dispute that the suit having been filed in 1957, Article 47 of the Act which was then in force applied. But being of the view that in this case the final order is the date on which the High court disposed of the revision, the trial Court held that the suit was within time. On the merits of the case, however, he found that the plaintiff has been able to prove his title only in respect of 6. 62 acres of land and passed a decree in part in his favour in respect of the same dismissing his claim in respect of the remaining 5. 33 acres of land. The first appellate Court dismissed Title Appeal No. 3 of 1964 filed by the defendants and allowed title appeal No. 4 of 1964 filed by the plaintiff. Aggrieved by these decisions, the defendants have filed these two second appeals nos. 297 and 298 of 1968.

(2.) THESE two appeals came up for hearing in the first instance before our learned brother S. K. Ray. J. The only point pressed before him by the learned Advocate for the appellants was the one relating to limitation. But having regard to the conflict of views between the Madras and Patna High Courts on this question and in the absence of any authority of this Court and in view of the importance of the question he has referred the question for decision by a Division Bench. This is how the matter has come up before us for disposal.

(3.) THERE is no dispute between the parties that Article 47 of Schedule I of the Act applies to this case. That Article runs thus: "47. By any person bound Three The date of the by an order respecting the years final order in the possession of immoveable case. " property made under the code of Criminal Procedure. 1898. (V of 1898)or the Mamlatdar's Courts act. 1906 (Bom. II of 1906 ). or by any one claiming under such person, to recover the property comprised in such order.