C. Honniah, J.
1. This Second Appeal arises out of a suit brought by the plaintiff-appellant for a declaration that she is entitled to 1/3rd share in the suit schedule properties and for partition of the same into three equal shares and to put her in separate possession of her 1/3rd share and for mesne profits.
2. The plaintiff and defendants 1 and 2 are sisters, being daughters of one Medappa and Honawa. The suit schedule properties, according to the plaintiff, belonged to her mother Honnavva. During the lifetime of her father the properties were being managed by him and after his death, they were being managed bv her brother Kariyappa. P. W. 3 till 1948 and thereafter, for about 5 years the wet lands were lying fallow. The plaintiff was away from Coorg as her husband had been employed. The third defendant is the husband of the first defendant. It appears, during the absence of the plaintiff, defendants 1 and 3 occupied a portion of the wet lands and a portion of 'Bane' lands and began to take the income therefrom. Proceedings under Section 145, Criminal P. C. were initiated at the instance of the third defendant on the ground that there was likelihood of breach of peace in respect of certain wet lands and certain lands belonging to the plaintiff and defendants 1 and 3 in the court of the First Class Magistrate, Virajpet The learned Magistrate passed an order in those proceedings that the third defendant was in possession of 3 acres and 80 cents of wet lands and 11-39 acres of Bane lands as on 26-5-1955, the date on which the preliminary order was passed, mentioning therein the survey number that were in dispute and directing that he should continue to hold possession until evicted therefrom by due course of law and also forbidding the plaintiff and her tenant, who were members of the second party in those proceedings and every one claiming under them from interfering with the possession of the third defendant.
3. The plaintiff filed a suit in O. S. No. 9/57 on the file of the Munsiff, Virajpet for partition and possession of the 1/3rd share in the suit schedule properties. In the said suit, defendants 1 and 3 both filed their written statement, contending inter alia, that the first defendant was in possession of the suit lands for over 12 years and as such she had become the owner thereof. The suit, however, was dismissed on 23-6-1959. It could be gathered from the certified copy of the decree, which is marked as Ex. B-3 that the suit was dismissed for default on the part of the plaintiff. Thereafter, she filed the present suit on 11-4-1963 for the reliefs stated above.
4. Defendants 1 and 3 contested the suit and by their written statement contended that the suit schedule properties belonged to the father of plaintiff and defendants 1 and 2. and that defendant No. 1 being in continuous possession over 12 years, adverse to the interests of the plaintiff, she had become the owner of 2/3rd share in the suit schedule properties. Both the defendants contended that in view of the order in 145, Criminal P. C. proceedings between the third defendant and the plaintiff and her tenant, the plaintiff having not filed the suit within three years from the date of that order, lost her right to any share in the suit schedule properties. The second defendant supported the plaintiff.
5. On the above contentions, a number of issues were raised by the trial Court. The trial Court negatived the contentions of defendants 1 and 3 that the properties belonged to the father of plaintiff and defendants 1 and 2 and that the first defendant had become the owner of 2/3rd share in the suit properties by perfecting her title by adverse possession. The trial Court also came to the conclusion that the suit was not barred by Article 47 of the Limitation Act of 1908. In this view, the trial court passed a preliminary decree for partition of the suit schedule properties. Aggrieved by this decision defendants 1 and 3 went up in appeal to the court of the District Judge, Coorg, Mercara.
The Appeal was subsequently heard by the Civil Judge, Coorg. Mercara in R. A. No. 44/66. By his judgment dated 22-2-1969, the learned Civil Judge, substantially agreed with all the findings of the trial court, except in regard to the finding under Article 47 of the Limitation Act 1908. On this question, after citing a number of decisions both for and against he held that the suit was barred under Article 47 of the Limitation Act 1908, read with Section 28 of the said Act. Without stating the facts of those cases, except in one case, he came to the conclusion that he was inclined to agree with the opinion expressed by the Calcutta and the Allahabad High Courts and was of the view that the suit was barred under Article 47 read with Section 28 of the Limitation Act. 1908. In this view, he set aside the judgment and decree of the trial court and dismissed the suit with costs throughout. This Second Appeal is preferred against the said decision.
6. It has been found by both the Courts below that the suit schedule properties belonged to the mother of the plaintiff and defendants 1 and 2 that they were entitled to 1/3rd share each. The only question which requires consideration is whether the suit brought by the plaintiff is barred by Article 47 read with Section 28 of the Limitation Act 1908.
7. Proceedings under Section 145, Criminal P. C. were initiated at the instance of the 3rd defendant against the plaintiff and her tenant on the ground that they were disturbing his possession of a portion of wet lands and a portion of Bane lands, which belonged to the plaintiff and defendants 1 and 2 and as a result of which there was likelihood of breach of peace.
The plaintiff was all along with her husband away from Coorg when she came to know that the first and third defendants had cultivated certain wet lands and had made use of the income therefrom for their own use, she appears to have obstructed the third defendant from entering upon the land. Those proceedings ended in favour of the third defendant and the third defendant was held to be in possession of the disputed lands in these proceedings. The plaintiff therefore, within three years filed O. S. No. 9/57 as stated earlier for partition and possession of her 1/3rd share in the suit schedule properties. The first and the 3rd defendants in that suit by their written statement contended that the first defendant had become the owner of 2/3rd share in the schedule properties by reason of adverse possession. That suit was dismissed. Whatever may be the reason for the dismissal of that suit, there cannot be any dispute that the plaintiff could have filed another suit for the same reliefs as in O. S. No. 9/57. If it was a case of ouster of the plaintiff, she could have brought a suit for partition and possession of her l/3rd share within 12 years from the date of ouster. In this case, both the courts below, on a question of fact, held that the plaintiff was not ousted at any time from possession of the properties. Therefore she was well within her rights in bringing the present suit against the defendants.
8. Mr. R. I. D'Sa, the learned counsel for defendants 1 and 3, relying mainly upon the finding of possession in favour of the 3rd defendant by the Munsiff and First Class Magistrate, Viraipet, in Criminal Miscellaneous Case No. 35 of 1955, dated 7-5-1956, that the third defendant was in possession of 3.8 acres of wet lands forming the eastern portion of the wet lands described in the suit schedule and 11,39 acres of Bane lands No. 142/1, which lay to the eastern side of the said 3.8 acres of wet lands in Kothur village, contended that the plaintiff having not brought the suit within three years from the date of that order namely from 7-5-1956, the present suit, is barred in view of Article 47 read with Section 28 of the Limitation Act, 1908.
9. There is no difficulty in understanding the phraseology of Section 28 and Article 47 of the Limitation Act. 1908. A fixed period of three years is given to a person bound by an order made under Section 145. Criminal P. C. to sue for possession. If he fails to sue for possession within that fixed period, his right to the property is extinguished by reason of Section 28. Mr. D'sa relied upon the decision in Atab Sunarri v. Talib Husain. AIR 1930 Cal 612.
The facts of that case were that there were two brothers Wahedulla and Bestrode. each owning an eight annas share in the properties. Bv an amicable arrangement Bestrode alone possessed the properties and sold them to the plaintiff in 1320 B. S. In 1321 B. S. the plaintiff grew paddy on the lands but was not allowed to gather the crops and was dispossessed by the defendants acting in collusion with each other. He then instituted a suit on 15th May 1921. One of the defences taken was the plea of limitation. The court held that to hold that an undivided share of the property is for the purposes of the article to be regarded as a different property however catching the argument may be will lead to immense complications to which similar considerations not only in the construction of this but also of other articles of the Act would apply. It was also pointed out that a suit for partition, which seeks for partition of property or to have a share in it, the title to which has already been extinguished by reason of no suit having been instituted to re-cover possession within three years of the order under Section 145, Criminal P. C. and by virtue of Article 47 of the Schedule and of Section 28 of the Act, is another name for a suit for recovery of possession and a mere device to evade the provisions of the statute.
10. Next he relied upon the decision in Jaidevi v. Dakshini Din. : AIR1937All300 . That was a case in which there wag a dispute between the co-sharers. The criminal court passed an order under Section 145, Criminal P. C. declaring that one of them was in exclusive possession and entitled to possession against the other. The person who was held to be in exclusive possession was in fact found to be in possession for more than 12 years from the date of the order, denying all the time the right of the other to possession thereof. In these circumstances, it was pointed out that the possession of one of the co-sharers was undoubtedly adverse to the other, who was the plaintiff in that case. The possession of the other, namely, the defendant, was referable to the order passed by the Criminal Court, which was followed by ouster of the plaintiff from the southern half of the property for a period of more than 12 years. This ouster was coupled with the denial of the plaintiff's right and therefore it was held that the plaintiff's right to the southern half of the property was extinguished.
11. Mr. D'Sa also placed reliance on the decision of the Privy Council in Lala Hem Chand v. Lala Pearey Lal AIR 1942 PC 64. In that case, it was held that:--
'If the owner whose property is encroached upon suffers his right to be barred by the law of limitation the practical effect is the extinction of his title in favour of the party in possession. Consequently, where the executor holds the property adversely to the heir for upwards of 12 years on behalf of the charity for which it was dedicated, the title to it, acquired by prescription, becomes vested in the charity and that of the heir if he had any, becomes extinguished by operation of Section 28 of the Limitation Act'.
The facts in the case of AIR 1942 PC 64 and the facts in the present case are different. In the case of Jaidevi : AIR1937All300 cited above, the principle laid down no doubt, supports the case of the third defendant.
12. The principle enunciated in the two cases mentioned above came up for consideration before the High Court of Bombay in the case of Parasharam Jethmal v. Rakhma, (1891) ILR 15 Bom 299. The question that arose for consideration in that case was as to the legal effect of the failure on the part of the second defendant to file a suit to establish his right to the property within three years after the order of the Mamlatdar. That order made under Act XVI of 1832 and presumably under Clause (2) of Section 1 of that enactment. The order therefore fell under Clause (7) of Section 1 of the Act XIV of 1859, the Limitation Act in force at the time when the order was made. By that clause, the period of limitation applicable to suits by any party bound by any order respecting the possession of property made under Clause (2), Section 1 of Act XVI of 1838 for the recovery of such property was 'three years from the date of the final order in the case'. Dealing with this question. Telang, J., observed as follows:--
'Further, assuming that the effect of Act XIV of 1859 was similar to the effect of Section 29 of the Limitation Acts of 1871 and 1877, the question arises whether Clause 7 of Section 1, which in terms relates to suits 'to recover the property' comprised in the order of the Mamlatdar, would have barred the suit not based on a claim 'to recover the property' --which implies a claim to exclude the defendant therefrom altogether but one merely for obtaining a share of such property on the footing that the defendant who had been successful in the Mamlatdar's Court held it for himself and the plaintiff jointly. The terms of the section do not require such a suit to be brought under its operation, and notwithstanding what has been stated by Mahmood, J. in Parbati v. Bhola, (1890) ILR 12 All 70 at PP. 90, 91, about Statutes of Limitation being 'statutes of repose', and therefore as should be liberally construed, the principle has been consistently acted on in this Court, that those statutes being in limitation of common right are not to be extended by construction to cases not clearly included within their terms'.
After referring to the decisions of three learned Judge of the Bombay High Court in Bhaguji v. Aniaba. (1880-81) ILR 5 Bom 25 and Shivram v. Narayan, (1880-81) ILR 5 Bom 27 which laid down broadly that Clause 46 of the Limitation Act of 1871 which is almost identical in terms with Clause 7, Section 1 of Act XIV of 1859, does not apply to partition suits. In essence the principle that is enunciated was that a suit for partition of property comprised in the Mamlatdar's order is not properly designated as a suit to recover such property.
13. In the case of Shanmugan Pillai v. Panchali Ammal, AIR 1926 Mad 683, their Lordships after reviewing a number of decisions of the Courts in India including the case of Bhimappa v. Irappa, (1902) ILR 26 Bom 146) has observed thus:
'Both in the claim proceedings and in prior suit (O. S. No. 407/1915) the plaintiff asserted his right to have his title to actual possession of the house declared; but in the present suit, he asks for a partition, after allowing for good and bad qualities of the family properties, and for delivery of a moiety to him. In making such a partition it is not necessary to go behind or re-open the decision in the prior proceedings. The plaintiff is only exercising the equitable right of the co-parcener, whose share he has purchased to demand a partition at any time. Article 11 (a) is thus not a bar to this suit, and as the relief the plaintiff now asks for in a suit based on the cause of action of his purchase of the undivided share of a member of a joint family would be inconsistent with what he asked for in the prior suit in which the cause of action was the order on the claim petition, there is equally no bar of res ]'udicata under Section 11, Civil P. C. or by Order 2, Rule (2)'.
14. The last case is that of Namar Ali v. Khalwan Goala, AIR 1957 Assam 99. In that case also, there was an order under Section 145 of the Criminal P. C., against one Manmohan who was the first party to that proceeding. He was bound to institute a suit during the period of limitation, provided by Article 47 of the Limitation Act. Manmohan failed to do so and therefore, his right, title and interest in the lands whenever (sic) they were extinguished by the operation of Section 28 of the Limitation Act. Dealing with this question, this is what Sarjoo Prosad. C. J.. observed:--
'The order simply meant that it recognised the possession of the mortgagee in respect of the lands or restored the mortgagee's possession if the mortgagee was out of possession. It could not confer any higher title on the mortgagee and there is nothing to show in the circumstances of this case that the mortgagee had started prescribing against the mortgagors under some exclusive or Paramount title. In fact, there would be no such presumption unless the facts pleaded and proved were to the contrary. The relationship of the mortgagor and mortgagee which admittedly existed between the parties would continue to subsist even after the order in the proceedings under Section 145. Criminal P. C.; and therefore it is wrong to assume that the period of limitation provided by Article 148 for redemption of the mortgage was cut down by the operation of Article 47 or Section 28 of the Limitation Act'.
These decisions clearly lay down that the order in the proceedings under Section 145, Criminal P. C., did not confer any unqualified right to possession or even title. The order simply meant that it recognised the possession of the party until evicted therefrom in due course of law. That being so, no higher title could have been conferred on the third defendant in the instant case.
15. Taking into consideration the facts of this case. I rather prefer to follow the principle laid down in the three cases, stated above.
On facts, it is relevant to state here that although the third defendant was declared to be in possession of the Properties on the date of the preliminary order in the proceedings initiated under Section 145 of the Criminal P. C., and that he will continue to remain in possession of the properties until he is evicted therefrom in due course of law, from a perusal of the written statement of defendants 1 and 3. it is abundantly clear that the third defendant did not continue to be in possession after the criminal proceedings came to an end. Defendants 1 and 3 filed a joint written statement which is marked as Exhibit A-8 in the case in which they have admitted that the first defendant was in possession of the properties from a long time and that she was in possession even in her own right. It is clear from this that the third defendant was not in possession of the properties till the institution of the present suit. The third defendant who has taken up the plea that the claim of the plaintiff is barred by Article 47 read with Section 28 of the Limitation Act, has not stepped into the witness-box. On the other hand, his wife (the first defendant) who has been examined in the case as D. W. 1, has admitted that she has been in possession of the properties all along. The courts below have negatived the claim of defendants 1 and 3 that they were in adverse possession of the properties. It follows that even on the admission of defendant 1 alone if she continued to be in possession all along, she was in possession on behalf of all the co-owners including the plaintiff. It therefore follows that Article 47 is not a bar and Section 28 of the Limitation Act has no application to the facts of the present case.
16. In the result, I set aside the judgment and decree of the appellate court and restore the judgment and decree of the trial court.
17. It is brought to my notice during the course of the arguments that the trial court has observed in its judgment in paragraph 17 that the plaintiff can agitate the quantum of mesne profits in a separate proceeding as per law. But, the trial court in paragraph 18 of the judgment has observed that the suit is decreed as prayed for except the mesne profits with costs. In the decree drawn up by the trial court, the claim for mesne profits has been totally disallowed. Therefore, it was contended by the learned counsel appearing on behalf of the plaintiff that the decree has not been drawn in accordance with the judgment in the case. If there is any defect in the decree, it is for the plaintiff to apply to the trial court to get the decree amended suitably.
18. In the circumstances of the case. I direct that the costs of plaintiff and defendants 1 and 2 shall be borne by the estate. The third defendant will bear his own costs.