YAR MOHAMMAD SAHA Vs. HAYAT MOHAMMAD SAHA

JUDGEMENT

(1.) The question involved in this appeal is, whether the suit out of which it arises is barred by limitation under Article 47 of the Limitation Act.

(2.) It appears that the plaintiff, was the first party, and the defendants were the second party, in a proceeding under Section 145 of the Criminal Procedure Code with respect to the land in dispute in this suit, the proceeding having been initiated by the plaintiff himself. The Magistrate made a preliminary order under Sub-section 1 of that section and the parties filed their respective written statements. The plaintiff examined three witnesses before the Magistrate and then put in a petition in which he stated: I beg respectfully to state that I have instituted a case under the aforesaid section. I shall not prosecute that case under the said section. I shall conduct the case in Civil Court and I shall not enter upon the said land until the matter shall have been settled by the Civil Court. I, therefore, pray that the said case may be allowed to be withdrawn". The Magistrate thereupon made the following order on the 24th August 1906: "Examined three witnesses for the first party. Yar Muhammad (1st party) then filed a petition, stating that he would not proceed with the case here and that he would not enter upon the land till the matter is decided in a Civil Court. The second party is declared to be in possession of the lands in dispute and the first party is directed not to enter upon the lands and not to disturb the second party s possession thereof till the latter be evicted therefrom by due process of law. Each party to bear his own costs."

(3.) The present suit was instituted on the 27th January 19l2 and both the Courts below have held that the suit was barred under Article 47 of the Limitation Act. It is contended on behalf of the appellant that the Magistrate had no jurisdiction to make the order under that section, without taking evidence on behalf; of the second party and without coming to a finding that the latter was in possession at the time mentioned in the section and that, therefore, Article 47 did not bar the suit.