PITAMBAR CHAUDHURY Vs. ACHOKI CHAUDHURY

JUDGEMENT

(1.) This is a defendant's second appeal from the concurrent decision of the Courts below decreeing the plaintiff's suit for possession on a declaration that they were the under-raiyats under the defendants, and had acquired occupancy rights in the lands in dispute by virtue of their continuous possession for more than twelve years, before they were dispossessed as a result of proceedings under Section 145, Criminal P.C. It appears as found by the Courts below, that the plaintiffs were inducted on to the lands in dispute as under-raiyats under the defendants second party who transferred their interest to the defendant first party appellant by virtue of a sale-deed of the year 1938. There was a dispute between the plaintiffs and the appellant-defendant which led to proceedings under Section 145, Criminal P. C. Those proceedings ended in favour of the defendant first party by virtue of the Magistrate's order, dated 2-1-1940. The plaintiffs who had lost before the Magistrate, made an application to the learned Sessions Judge in revision for making a reference to this Court. That application, after hearing the lawyers for both the parties, was dismissed, and the learned Sessions Judge refused to make any reference to this Court. The learned Sessions Judge's order is dated 22-2-1940. The suit leading up to this appeal was filed on 12-2-1943.

(2.) In this Court, the only question on which we have been addressed is the question of limitation. It has been argued on behalf of the appellant that the suit is barred by limitation on two grounds, namely, (1) that it is barred by the three years rule of limitation laid down in Article 47, Limitation Act, calculating the three years period from 2-1-1940, when the proceedings terminated in favour of the appellant in the Magistrate's Court, and (2) that it is barred by the two years limitation under Article 3, Schedule 3, Bihar Tenancy Act. The Courts below have negatived these pleas of limitation, holding that the three years rule of limitation applied to the case, and that the period of limitation should be calculated from 22-2-1940, when the learned Sessions Judge refused to make a reference to this Court. The Courts below have also taken the view that Article 3, Schedule 3, Bihar Tenancy Act, had no application to the facts and circumstances of the present case, inasmuch as the dispossession was not by the landlord as such but as a result of the adverse findings by the Magistrate, and by the learned Sessions Judge when he refused to make a reference to this Court.

(3.) In my opinion, the decision of the Courts below in relation to the application of Article 47, Limitation Act, is erroneous in law. Article 47 gives three years for institution of a suit by an unsuccessful party to Section 145 proceeding from "the date of the final order in the case. The Courts below have taken the view that the date of the final order in the case must be 22-2-1940, when the learned Sessions Judge refused to make a reference to this Court. It should be noted that, the plaintiffs, who had been unsuccessful before the Magistrate and in the Court of Session, did not move this Court in revision. The Court of Session is not competent to pass any final orders in a proceeding under Section 145, Criminal P. C., the Sessions Judge can only make a reference to this Court, if he were of the opinion that the orders passed by the learned Magistrate were vitiated by any errors of law. Apparently, there were no errors of law in the orders passed by the learned Magistrate, and that may have been the reason why this Court was not moved in revision. If this Court had been so moved whether the orders passed by this Court, after hearing the parties or otherwise, were against the plaintiffs--they would have had the advantage of the extended period of limitation, in view of the decision of a Division Bench of this Court in the case of Rampal Singh v. Mansukh Rai, 20 Pat. 735 : (A.I.R. (28) 1941 pat. 372). In that case, their Lordships took the view that the orders passed by the High Court in its revisional jurisdiction against an order passed in a proceeding under Section 145, Criminal P. C., are the final orders within the meaning of Article 47, Limitation Act. We are bound by that decision. But, as already indicated, the plaintiff respondents did not move this Court in its revisional jurisdiction and, therefore, deprived themselves of the benefit of the orders of this Court and of the extended period of limitation in the event of any orders being passed by this Court. There is no decision of this Court which has been brought to our notice which can directly govern this case. The earlier decision of this Court in the ease of Lachman Singh v. Diljan Ali, 43 I. C. 955: (A. I. R. (5) 1918 pat. 504) to the effect that Article 47, Limitation Act, contemplates the final order passed by this Court refusing to interfere with that order has no application to the present case, inasmuch as that was a decision given before the amendment of Criminal P. C. in 1922-23. The decision of the Calcutta High Court relied upon in that case is, for the same reasons, not in point. The only decision which has been brought to our notice, and which is the nearest approach to this case, is the decision of the Letters Patent Bench of the Madras High Court in the case of Nagabushanayya v. Kotayya, I.L.R. (1947) Mad. 179: (A. I. R (33) 1946 Mad. 444). In that case, the learned Chief Justice, delivering the Judgment of the Court, laid it down that where a criminal revision application against an order of a Magistrate under Section 145 (6), Criminal P. C, is dismissed in timing, and the order of the Magistrate if left untouched, it is the Magistrate's order and not the order passed in revision which is the final order within the meaning of Article 47, Limitation Act. That case was sought to be distinguished on the ground that the application had been dismissed in limine, and not dismissed after hearing both the parties. That, in my opinion, is a distinction without any difference. The Madras decision may, in some respects, be said to be in conflict with the decision of this Court in the case of Rampal Singh v. Mansuhh Rai, 20 Pat. 735 : (A. I. R. (28) 1941 Pat. 372), because this Court has laid it down that, whether the application in revision is allowed or rejected, it makes no difference to the question of limitation. But the case before us stands on a higher footing than the case before their Lordships o the Madras High Court, inasmuch as no attempt was made by the unsuccessful party in the 145-prcoeedings to move this Court in revision. An earlier decision of the Calcutta High Court in the case of Kangali Churn Sha v. Zomur-Rudonnissa Khatoon, 6 cal. 709 : (8 C. L. R. 154), presents features similar to the case before us. In that case also, there was an attempt to get favourable orders from the Sessions Judge, but the High Court was not moved. Their Lordships of the Calcutta High Court held that the orders of the Magistrate declaring the possession of one of the parties to the proceedings was the final order from which the three years rule of limitation began to operate. It was pressed upon us by Mr. B. N. Mitter, appearing on behalf of the respondents, that the orders of the Sessions Judge were judicial in nature, and were the last orders passed in a proceeding under Section 115, Criminal P. C. That is perfectly true. But Article 47, Limitation Act, does not speak of the last order in a judicial proceeding but speaks of the final orders, and the final orders which operate in this case were the orders of the learned Magistrate. Hence, in my opinion, the three years rule of limitation must commence from the date of the Magistrate's orders, that is to any, 2-1-1940, and not 22-2-1940. That being so, the suit was barred by limitation. In this view of the matter, it is not necessary to consider the application of Article 3, Schedule 3, Limitation Act, as laid down in the Bihar Tenancy Act.