RAM SAHAI Vs. BINODE BIHARI GHOSH

JUDGEMENT

(1.) The facts out of which this appeal arises are as follows: Ajudhia Prasad, the father of Ram Sahai and grandfather of Baijnath Prasad, plaintiffs in this suit, took a permanent lease of a compound, in. the city of Allahabad, on the 7 of September, 1913, from Bite, Ram Ghosh and his two brothers. Binode Bihari Ghosh, the defendant respondent here, claimed a share in the coin pound, and it appears that proceedings were taken against him, at the instance of Ajudhia Prasad, under Sec. 145 of the Criminal P. C.. Those proceedings ended in an order by the Magistrate maintaining the possession of Binode Bihari Ghosh in one room in the compound and maintaining the possession of Ajudhia Prasad in the rest of the compound. This order was passed on the 9 of March, 1914. Subsequently Ajudhia Prasad died without having instituted airy suit in the civil court to contest the Magistral's order. Afterwards, in 1919, the plaintiffs appellants forcibly ejected Binode, Bihari Ghosh from the room he was occupying. Binode Bihari Ghosh took criminal proceedings against the plaintiffs under Section 448 of the Indian Penal Code, with the result that the plaintiffs were convicted and fined, and, under Section 522 of the Criminal Procedure Code, Binode Bihari Ghosh was put back into possession of the room. This order was dated the 8 of September, 1919. Thereafter, on the 9 of March, 1920, the plaintiffs brought this suit for a declaration that they were the owners in possession of the room in dispute and that the defendant had no right therein, and, secondly, for a perpetual injunction to be issued to the defendant to restrain him from interfering with the plaintiffs possession. Both courts have dismissed the suit on the ground that under articles 47 of the first schedule to the Indian Limitation Act the suit was barred by time.

(2.) The plaintiff's come here in appeal, and, as the questions-involved are somewhat difficult, the ease has been referred to a Bench of two Judges for disposal. Three main grounds are taken against the decision of the courts below. First, it is argued that article 47 does not apply because this suit is not a suit, on the face of it, to recover the property but is a suit for a declaration pure and simple. Next, it is argued that article 47 cannot apply at all to the facts of this case, because the order under Section 145 of the Criminal P. C. did not refer to the, room now in dispute. There was a third plea raised, namely, that, in any case, the order, under Section 145 was made against Ajudhia Prasad alone and that the plaintiffs were, therefore, not bound by that order, because they were not claiming through him but in their own right as surviving members of a joint Hindu family of which Ajudhia Prasad was a in ember.

(3.) On the second point, it seems to us that the court below has found, rightly or wrongly, that the order under Section 145 referred to the room now in suit. It seems to us that that is a finding of fact. The lower court has considered the evidence and come to a finding thereon and it is not open to us to inter-fen; with that finding.