Satyanarayana Raju, J.
1. These appeals are from a common judgment of the Court of the District Judge, West Godavari. Appeals Nos. 471/1956 and 302/1957 arise out of O. S. No. 44 of 1950, and appeal No. 231/1960 arises out of O. S. No. 45/1950.
2. O. S. No. 44/1950 was originally instituted on October, 1, 1944, in the Court of the Special Assistant Agent, Kovvur. After a lapse of about four years, on December 31, 1948, the Special Assistant Agent returned the plaint for presentation to the Agent's Court. Pursuant to this order, the suit was transferred to the Agent's Court on January 17, 1949. Eventually the suit was transferred from the Agent's Court to the Court of the District Judge, West Godavari, where it was numbered as O. S. No. 44 of 1950. The connected suit was originally filed as O. S. No. 2 of 1948 on the file of the Agency Court, and was subsequently transferred to the District Court, West Godavari where it was numbered as O. S. No. 45 of 1950. The two suits were tried together with the consent of the parties. The evidence was recorded in O. S. No. 45 of 1950, and it will be convenient to refer to the ranks of the parties therein, and that was indeed the course adopted by the lower Court.
3. The material facts, out of which these appeals have arisen, may be briefly stated: Tirupatirayudu and Gangaraju were brothers. Tirupathirayudu was twice married. Mahalakshmamma was his first wife. She had no issue, male or female. During the life time of Mahalakshmamma, Tirupatirayudu brought to his house his brother's son, Viranna, while he was of a tender age. Thereafter Mahalakshmamma died in or about the year 1905. Tirupatirayudu then married Lachamma, the 1st defendant, immediately after the death of his first wife Mahalakshmamma. Tirupatirayudu died in the year 1929. The plaintiff is the only daughter of Tirupatirayudu by his second wife, Lachamma. Viranna executed a will on May 16, 1942, bequeathing all the plaint schedule properties to his wife, Venkatanarasayamma, and his daughter Mahalakshmamma alias Rajamani, defendants 2 and 3 save an aggregate extent of 24 acres situated in the village of Singanapalli, Pydipaka and Veeravaramlanka, which he bequeathed to the plaintiff. The plaintiff instituted the suit on October 1, 1944, for a declaration that the alleged adoption of Viranna by Tirupatirayudu is neither true nor valid in law and that her rights to the properties comprised in the estate of her father are not in any way affected after the life-time of Lachamma, the widow of Tirupatirayudu.
4. The 1st defendant remained ex parte.
5. Defendants 2 and 3 resisted the suit on various grounds. They filed a common written statement contending that Tirupatirayudu and his wife, Mahalakshmamma, adopted Viranna when he was 6 or 7 years old; that the requisite religious ceremonies, including that of giving and taking, were performed according to the Hindu Sastras; that Viranna became a coparcener with Tirupatirayudu, and on Tirupatirayudu's death, Viranna became entitled to all the family properties by right of survivorship; and that Viranna himself performed all the obsequies of his adoptive mother, Mahalakshamma.
6. Defendants 4 to 10, who purchased the B schedule properties from Viranna, were also added as parties. -
7. The connected suit, O. S. No. 44 of 1950, was filed by Venkatanarasayyamma, Rajamani alias Mahalakshamma and Lachamma, who are defendants 2, 3 and 1 respectively in the other suit, for a declaration of their title to and possession of the plaint scheduled property which was attached under Section 146 of the Code of Criminal Procedure in M. C. No. 2/1941 on the file of the Joint Magistrate, Bhadrachalam. As Karri Lachamma, who was the 3rd plaintiff in the suit, while it was pending on the file of the agency Court, did not cooperate with, the other plaintiffs, she was subsequently transposed as the 18th defendant.
8. Briefly stated, the case of plaintiffs 1 and 2 there was that Viranna left a will dated May 16, 1942, bequeathing his properties to the plaintiffs and Venkataratnam the 17th defendant (the plaintiff in the connected suit), that the plaintiffs and defendants 17 and 18 are interested in the proparties mentioned in the plaint schedule; and that as defendants 1 to 16 were attempting to disturb their possession and as the properties were in the custody of the Court, the plaintiffs were obliged to file the suit for a declaration of their title to and possession of the property.
9. Defendants 6, 8 and 13 died during the pendency of the suit.
10. Defendants 1, 2, 4, 5, 9, 10 and 12 filed a common written statement contending that. Karri Viranna, was not the adoptive son of Tirupatirayudu and, therefore, he was not entitled to the properties. They denied the truth of the will said to have been executed by Viranna. These defendants raised other contentions, the important of which now are that they have been in possession of the lands for more than twelve years to the knowledge of the plaintiffs and their predecessors and that they have acquired title to the suit properties by adverse possession. They further contended that the suit was barred by limitation inasmuch as it was not filed 'within three years, from the date of the order passed by the Joint Magistrate, Bhadrachalam, in M. C. No. 2 of 1941.
11. The learned trial Judge found that Karri Viranna had been duly adopted by Tirupatirayudu, that the will executed by Viranna was true and valid, and that the plaintiff in O. S. No. 45 of 1950 was not entitled to any of the reliefs claimed by her. That suit was, therefore, dismissed. In O. S. No. 44 of 1950 the Court below held that the adoption of Viranna by Tirupatirayudu. was true, that he left a will conveying his properties, except to the extent of 24 acres in favour of the plaintiff, that the defendants had not acquired title by adverse possession, that the plaintiffs were in possession of the suit properties within twelve years of suit, and finally, that the suit was not barred by limitation for the reason that it was not filed within three years from the date of the order of the Joint Magistrate, Bhadrachalam, in M. C. No. 2 of 1941. On these findings, the suit was decreed.
12. Against the decree in O. S. No. 45 of 1950, the plaintiff preferred Appeal No. 231 oi 1960 and Appeal No. 471 of 1956 against the decree in O. S. No. 44 of 1950. Defendants I, 2, 5 9 and 10 in O. S. No. 44 of 1950 have filed Appeal No. 302 of 1957, while Karri Lachamma (1st defendant) has preferred cross-objections in Appeal No. 302 of 1957.
13. The main question which arises for decision in these appeals' is whether Karri Viranna was validly adopted by Tirupatirayudu. If the finding of the Lower Court that his adoption was true and valid is to be upheld, it would dispose of Appeals Nos. 471 of 1956, 231 of 1960 and the cross-objections in Appeal No. 302 of 1957.
14. We shall first take up the question of ths truth and the validity of the adoption of Karri Viranna. The adoption is said to have taken place in or about the year 1903 or 1904 during the lifetime of Mahalakshmamma. Karri Viranna died in the year 1944, four decades after the date of the alleged adoption. Though the version of the defendants is that Tirupathirayudu was very old at the time of the adoption, it is admitted by the plaintiff herself that he must have been about 37 years old at the time. It is common ground that even during the life-time of his 1st wife, Mahalakshmamma, he brought Karri Viranna, his brother's son, to his house when he was a boy of tender years and reared him. Tirupathirayudu had no issue, male or female, by his first wife. It is, no doubt, true that the fact of adoption must be proved in the same way as any other fact and the evidence in support of an adoption must be sufficient to satisfy the very grave and serious onus that rests upon any person who seeks to displace the natural succession by alleging an adoption. In the present case, however, there is a lapse of about forty years between the time of the alleged adoption and the date of the suit. The challenge of the adoption is made by the plaintiff, not only of course, after the death of Tirupatirayudu but after the death of Viranna, the alleged adoptee. Where, as in this case, there is a long lapse between the adoption and its being questioned every allowance for the absence of evidence to prove such fact must be favourably entertained.
As pointed out by their Lordships of the Privy Council in Venkata Seetharama Chandra Kao v. Kanchumarthi Raju, AIR 1925 PC 201 it stands to reason that after a very long term of years, and a variety of transactions of open life and conduct upon the footing that the adoption was a valid act, the burden must rest heavily on him who challenges its validity. It cannot be denied that the adoption of Viranna was one perfectly suitable in all respects. Tirupatirayudu had no issue by his first wife. If regard is had to the expectancy of life in the beginning of the twentieth century --assuming that he was not a very advanced age as stated by the plaintiff -- Tirupatirayudu must have contemplated the possibility of his not having any children, and if so, it was but natural that he should have thought of adopting his brother's son, on whom his affection was naturally centered. Besides, the naturalness and the propriety of Tirupatirayudu conceiving the idea of adopting his brother's son, there is the admitted fact that he brought up Viranna, which is indeed common ground between the parties. Apart from the documentary evidence, we had the direct evidence of D. W. 12, one Ademma, who was about 80 years old on the date when she gave evidence, in support of the adoption. She was a resident of Pydipaka. She knew Tirupatirayudu and his first wife Mahalakshmamma. She stated that Viranna was adopted by Tirupatirayudu and Mahalakshmamma with due solemnity, that there was the ceremony 'of giving and taking; that Viranna's natural parents gave him in adoption and that he was received by Tirupatirayudu and his wife Mahalakshmamma and that Viranna performed the obsequies of Mahalakshmamma.
The witness deposed that she was invited for the adoption, as she was on intimate terms with the family of Tirupatirayudu. The comment made by the learned counsel for the plaintiff is that she stated that at the time of the adoption, Tirupatirayudu was very old and that he was of the same age as herself. Apart from this comment, no serious challenge has been made against the veracity of this witness. The learned trial Judge had no hesitation in accepting her testimony and we do not find any ground for taking a different view.
15. Apart from the direct evidence of this witness, who stated that he actually witnessed the ceremony of adoption, there is the evidence of Lachamma, the widow of Tirupatirayudu and the mother of the plaintiff. She gave evidence as D. W. 14. She was 14 years of age on the date of her marriage, which was in the year 1905. Even according to her, by the time she joined her husband, Viranna was in their house. She stated that she was told by her husband that his younger brother's son Viranna, was a very intelligent boy and that he was staying in their house. She was even prepared to go further and say that her husband bad told her that Viranna was his foster son. She also admitted that after her husband's death, Viranna himself performed his obsequies and that he was paying the taxes. She was also willing to own that after the death of her husband, the properties which were considerable, were not mutated in her name in the revenue accounts.
16. What is more important is that in a previous suit, O. S. No. 26 of 1930, in which Viranna sought to recover a sum of money from a debtor and the debtor denied Viranna's adoption, Lachamma gave evidence, which we shall now consider. Ex. B-12 is the copy of her deposition in O. S. No. 26 of 1930, wherein she stated as follows:-
'Viranna was there even prior to Tirupatirayudu marrying me. My husband Tirupathirayudu told me that he had adopted Viranna while his first wife was living. My husband died one year ago. Viranna performed his obsequies. Viranna was married. It took place about 15 years back. My husband and myself have met the expenses relating to Viranna's wife attaining age and Taddi festival. After the death of Tirupatirayudu Viranna is the rightful owner of the entire property of Tirupatirayudu. I have no concern at all in the said entire property. A daughter was born to me. That girl was married ..... Viranna alone has the right to all the movable and immovable property of the said Tirupatirayudu but there is no right at all either to me or to my daughter ..... My daughter's name is Venkataratnam. Now she is 10 years old. My minor daughter is not the rightful owner to my husband's property. Viranna alone is the rightful owner ..... Viranna is not a fostered son. My husband told only that he had adopted him. I do not know whether there is any proof to that extent.'
17. It is, no doubt, true that Lachamma bad not been married to Tirupatirayudu by the time Viranna was adopted. But in Ex. B-12, she, without any reservation whatsoever, stated that Viranna was the adopted son and that neither she nor her daughter, the present plaintiff, had any right to the properties. When the contents of this deposition were shown to Lachamma, she denied having ever so deposed. But this denial cannot carry conviction. That was a deposition recorded by a Commissioner appointed by the Court, and having regard to her present attitude, her denial could only be ascribed to her anxiety to help her daughter, the plaintiff, in the present litigation.
18. Apart from Ex. B-12, there is the fact that in the present suit, O. S. No. 44 of 1950, Lachamma was originally impleaded as the 3rd plaintiff and her thumb-impression was affixed to the plaint. Here again, she was at pains to point out that plaint had not been read over to her though its contents had been narrated to her, that she had sent intimation to the Pleader and asked for his advise but that within a week after she had put her thumb-mark to the plaint, her daughter came and questioned her and thereupon she was unwilling to prosecute the plaint along with the other two plaintiffs. She was candid enough to say that her daughter filed the suit after taking her advice. It is, therefore, not surprising that though originally she had affixed her thumb-impression to the plaint after getting its contents explained to her, later under pressure from her daughter, she changed her attitude.
19. Besides Ex. B-12, the deposition of Lachamma in O. S. No. 26 of 1930, there, are other depositions, five in number, which are now marked asExs. B-123, B-124, B-125, B-126 and B-127. Thefirst of them is the deposition of Sripada Narayanamurthi; the second, that of Venu Ammanna; thethird, that of Bhogisetti Venkayya; the fourth, thatof Matta Narayanamurthi; and the fifth, that ofBheemuni Subbarayudu. It was contended in thelower Court that these depositions were not admissible in evidence. The learned trial Judge heldthat they were admissible, and the question of theiradmissibility was the subject-matter of a RevisionPetition in this Court. After a careful consideration of the material provisions of the Evidence Act,Mr. Justice Umamaheswaram felt that these documents were admissible in evidence. It is now contended before us that the judgment of the learnedJudge requires reconsideration and that, the decision of Privy Council in Krishnayya Surya Rao v.Raja of Pittapur, AIR 1933 PC 202, on which the learned Judge relied, does not support his conclusion.
20. In the present case, apart from these depositions, there is a large volume of documentary evidence and, in particular, there is the judgment of the Court of the Agency Munsif, Polavaram, in O. S. No. 26 of 1930, wherein these depositions were recorded. It is not disputed that this judgment is admissible in evidence' under Section 13 of the Evidence Act, which provides as follows :
'Where the question is as to the existence of any right or custom, the following facts are relevant :
(a) any transaction by which the right or custom in question was created, claimed, modified, recognised, asserted, or denied, or which was inconsistent with its existence;
(b) particular instances in which the right or custom was claimed, recognised or exercised, or in which its exercise was disputed, asserted or departed from.'
21. The issue in that suit was whetherViranna was the adopted son of Tirupatirayudu,and it was found he was the adopted son and thelegal heir to the properties of Karri Tirupatirayudu. This judgment is admissible for the purpose of showing that there was an assertion anddenial with regard to the adoption of Viranna andthat it was ultimately found that he was theadopted son.
22. The factum of adoption rests on a much more firm ground. In Ex. B.8 we find the admission of Tirupatirayudu himself that Viranna was his son. This is a very important piece of evidence in support of the adoption. The learned counsel for the plaintiff has, however, argued that even a brother's son can be referred to as 'son' and that the recital in Ex. B.8, is not, therefore, conclusive. This plaint was filed in the year 1923, and if Tirupatirayudu was merely referring to Viranna as his 'son' by courtesy, he could have equally described him as his brother's son. The fact that Tirupatirayudu described him as his son furnishes strong proof of the fact that he was adopted son.
23. Ex. B.9 is a certified copy of the judgment in O. S. No. 26 of 1928 filed by Tirupatirayudu against one Lachi Reddi. The suit was dismissed, and Ex. B.10, the appellate decree, shows that Viranna, as the legal representative of Tirupatirayudu, filed an appeal against the original judgment. Exs. B.3 and B.4 are the letters addressed to Viranna by an Advocate of the High Court in a pending appeal. Ex. B.14 is a licence to vend country spirits granted to Viranna by the Tahsildar of Polavaram in the years 1929 and 1930, wherein he was described as the son of Tirupatirayudu. Ex. B.15 is the notice issued to Tirupathirayudu by the Income-tax Officer. Exs. B.16 to B.18 are notices issued by the Income-tax authorities to Viranna, which show that he was made liable for payment of income-tax in respect of the estate of Tirupatirayudu. Exs. B-34, B.35 B.36 and B.38 are pattas issued in the name of Viranna, wherein he was described as the son of Tirupathirayudu. In some of these documents it was also stated that as Tirupatirayudu had died, the patta was issued in favour of Viranna. So too, the pattas Exs. B.32, B-33, B-35, B.37, B.39 and B.41, were issued in the name of Viranna. Ex. B.ro6 is one of the pattas standing in the name of Viranna, who was described as the adopted son of Tirupatirayudu. It was there, stated that as Tirupatirayudu had died, the patta was issued in the name of his son. This, coupled with the fact that there was no mutation in the name of Lachamma, which would have been the case if there was no adoption, furnished abundant proof of the fact that Viranna was treated as the adopted son of Tirupatirayudu. Otherwise, there was no reason why Lachamma. would have kept quiet for a long number of years without, getting her name mutated, without paying taxes and without obtaining possession of the lands which were comprised in her husband's estate. There are other documents which show that Viranna was not a party to documents executed by the members of his natural family.
24. In 1933. Viranna executed sale deeds and mortgages, evidenced by Exs. B.63, B.64 and B.65, in favour of strangers wherein he described himself as the son of Tirupathirayudu. In Ex. B.121, which is a sale deed executed by Viranna in the year 1935 he was described as the adopted son of Tirupatirayudu. There is other documentary evidence referred to by the learned trial Judge- Having regard to the numerous documents in which Viranna was described either as the son of Tirupatirayudu or his adopted son. It is futile for the plaintiff to contend that there was no adoption. We hold, in agreement with the conclusion reached by the Court below, that there is conclusive proof that Viranna was duly adopted by Tirupatirayudu.
25. On this conclusion, Appeal Nos. 471/1956 and 231/1960 and the Memorandum of Cross-objections in Appeal No. 302 of 1957 must be dismissed. Respondents 1 and 2 in Appeal No. 471 of 1956, respondents 2 and 3 in Appeal No. 231 of 1960 and respondents 6 and 7 in the Memorandum of Cross-objections in Appeal No. 302 of 1957, will have their costs.
26. There remains Appeal No. 302 of 1957, which raises a question of limitation. For a proper appreciation of the question arising for decision in this appeal, it is necessary to state the relevant facts. On information furnished by the Station House Officer, Polavaram, the Joint Magistrate Bhadrachalam, in M. C. No. 2 of 1941, initiated proceedings under Section 145 of the Code of Criminal Procedure against the appellants and some others (therein referred to as the 2nd party) and Karri Viranna (the 1st party). There was a dispute between first party and the second party with regard to the possession of the present suit lands. After making an enquiry into the dispute, the learned Magistrate passed the following Order:
'I have carefully considered the evidence on both sides and am of the opinion that no purpose will be served by a detailed discussion of it, as far as it is relevant, it consists of a series of averments that one party is in possession of the schedule lands on the one side and on the other side that the other party is in possession. The evidence of the Karnam of Singanapalli is an exception to this and as far as it goes in favour of respondents of the second party but is vitiated by the fact that he contradicts himself and then lamely adds that he is new to the post, he does not know the fields in his village. He is either committing perjury or is totally unfitted to be Karnam. I see no way of deciding he is in possession on the evidence laid before me with any reasonable degree of certainty of arriving at the correct conclusion. I am of the opinion that if the property is released from attachment, a breach of the peace is likely to occur. I, therefore, attach the schedule property until a competent Court shall have determined the rights of the parties thereto, or the person entitled to the possession thereof under the provisions of Section 46(1) Criminal Procedure Code'.
27. O. S. No. 1 of 1949 (on the file of the Agency Court), out of which Appeal No. 302 of 1957 arises, was filed by the widow and daughter of Karri Viranna for a declaration of their title to and possession of the plaint schedule property which was attached by the Joint Magistrate, Bhadrachalam in the order set out above. This suit was originally filed before the Special Assistant Agent, Kovvur, on October 1, 1944.
28. The point of limitation arises this way. The suit filed by the plaintiffs was in substance one for avoiding the summary order, dated February 15, 1941, made by the Joint Magistrate, Bhadrachalam, in Ex. B.108. The suit was filed on October 1, 1944. after the death of Viranna, by his legatees or heirs. The defence raised by the contesting defendants was that the suit was. barred by limitation by the combined operation of Section 28 and Article 47 of the Limitation Act, the suit not having been filed within three years from the date of the order of the Joint Magistrate. This contention was negatived by the Lower Court.
29. It is argued before us that Article 47 of the Limitation Act would apply to the facts of the case and that the lower Court was in error in rejecting the plea of limitation raised by the appellants. At the outset, it would be convenient to read the material provisions of the Limitation Act.
30. Section 28 reads as follows :
'At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.'
31. Article 47 is in the following terms ;
Description of suit.Period of limitation.Time from which period begins to run.
47. By any person bound by aa otder respecting the possession of immovable property made under the Code ot Criminal & Procedure, 1898, or the Mamlatdar's Courts' Act, 1906, or by any one claiming under such person to recover the property comprised in such order.Three yearsThe date of final order in the case.
32. The general rule is that limitation bars only the remedy and does not extinguish the right itself. Section 28 enacts an exception to this general rule so far as suits for possession of property are concerned and provides that the bar of the remedy shall operate to extinguish the right. Article 47 refers to orders declaring one of the two disputants to be in possession and therefore obliges the other to bring his suit within three years from the date of the order. The object of the suit contemplated by Article 47 is virtually to set aside the effect of the summary order of a Magistrate issued in the interests of public peace, with regard to the possession of immoveable property under Section 145(6) of the Code of Criminal Procedure. The words 'an order respecting the possession of immoveable property' occurring in Article 47, have been the subject-master of judicial scrutiny by the High Court of Madras. The earliest of these decisions was rendered, as far back as the year 1877. by a Division Bench of the Madras High Court in Akilandammal v. Periasami Pillai, ILR 1 Mad 309. There the facts were these :-- A dispute having arisen between the plaintiff and the defendant as to the ownership of certain landed property, the Magistrate, on being informed of the dispute, held an enquiry under the provisions of Chapter XXII, of Act XXV of 1861 (which corresponds to the present Section 146 of the Code of Criminal Procedure). The magistrate, finding himself unable to determine who was in actual possession of the lands, directed the lands to be put in the possession of the Sub-Magistrate. The learned Judges held that this was not an order respecting 'the possession of property' but an attachment proceeding recorded because the Magistrate was unable to determine which party was in posses-sion and that, therefore, the limitation of three years prescribed by the 4th clause of Schedule II of Act IX of 1871 (corresponding to Article 47 Of the Limitation Act) was inapplicable.
33. In Rajah of Venkatagiri v. Isakapalli Subbiah, ILR 26 Mad 410 the facts were these: Certain lands were attached by a Magistrate, in 1886, under Section 146 of the Code of Criminal Procedure in consequence of dispute relating to their possession. The Magistrate continued in possession of the lands and realised some income from them. Both claimants instituted, in 1897, suits in which each claimed the lands as his own, and sought to obtain a declaration of title to them, as well as to the accumulated income, and for possession of the lands and recovery of the money. On the question of limitation being raised, it was held by Benson and Bhasyam Ayyangar, JJ. that in so far as the suits were for declaration of title to immoveable property and the profits therefrom, they were governed by Article 120 of Schedule II (sic) to the Limitation Act. The learned Judges further held that the attachment by the Magistrate operated, in law, for purposes of limitation, simply as a detention or custody, pending the decision by a Civil Court, on behalf of the party entitled, and that the seizing of legal possession was, during the attachment in the true owner. They further, held that the right of the true owner to the lands could not be extinguished, however long the attachment might continue.
34. The next of the decisions is Ramaswamy Iyer v. Muthusamy Iyer, ILR 30 Mad 12. There Subrahmania Ayyar and Miller, JJ. held that where property is seized by a Magistrate, the property passes into legal custody and such custody is for the benefit of the rightful owner and that time begins to run against such owner only whea by an erroneous order of the Magistrate the property is delivered to some other person and it is so even when such other person had been in wrongful possession previous to the seizure by the Magistrate.
35. In Parasuramayya v. Ramachandrudu, ILR 38 Mad 432 : (AIR 1961 Mad 320), Sadasiva Ayyar and Tyabji, JJ. explained the scope of Article 47 of the Limitation Act. They held that that Article is applicable to a suit for recovery of possession of lands in respect of which an order had been passed by a Magistrate acting under Section r45 of the Code of Criminal Procedure, although the Magistrate might not have made the proper inquiries which he ought to have made before he passed the order, if the plaintiff had notice of the proceedings though the notice wad not served on the plaintiff in accordance with law.
36. It is, however, contended by the learned counsel for the appellants that these decisions are. in conflict with the decision of a Division Bench of the Madras High Court, consisting of Seshagiri Aiyar and Bakewell, JJ. in Solai Ammal v. Jogi Chetti, 10 Mad LW 637 : (AIR 1920 Mad 545). The facts of that case may be briefly summarised. The 1st defendant and defendants 2 and 3 in the suit, out of which the Second Appeal arose, bad disputes concerning possession of certain property, whose income was the subject-matter of the litigation. On January 30, 1908, the Magistrate, who made an enquiry, held that the evidence as to possession on both sides was unsatisfactory and directed that a Receiver should be in charge of the property, under Section 146 of the Code of Criminal. Procedure. In December 1911, defendants 2 and 3 brought a suit against the 1st defendant, partly for a declaration and partly for possession. This suit was eventually withdrawn without obtaining permission to sue again. In March, 1913, after the suit had been so withdrawn, the Receiver delivered possession of the properties to the 1st defendant. The plaintiff obtained a money decree against defendants 2 and 3 and attached the suit property which represented the income which was in the hands of the Receiver and which was handed over by him to the 1st defendant in April 1913. The 1st defendant, who obtained, possession from the Receiver, filed a claim petition which was allowed. The plaintiff, thereupon, filed a suit for a declaration that he was entitled to attach the income which was paid by the Receiver to the 1st defendant.
On these facts, the learned Judges held that as defendants 2 and 3 had no subsisting right on the date of the attachment, there was nothing for the plaintiff to attach and the suit should have been thrown out on this short point. This conclusion was sufficient for the disposal of the appeal. The learned Judges, however, considered the point of limitation which was raised before them. They held that the claim of defendants 2 and 3 was extinguished by the combined operation of Article 47 of the Limitation Act and Section 28. They proceeded to observe that
'in Article 47, the suit contemplated is one for possession by party against whom an order was passed by the magistrate'.
It was then stated as follows :
'It may be that to such a suit it is necessary that the Receiver should be a party. The principle underlying the Article is that as possession is outstanding, the party who is out of it should sue within 3 years to recover it. If he fails to sue within that period then under Section 28 the right to possession is extinguished.'
Having said this, the learned Judges referred to ILR 38 Mad 43?. : (AIR 1916 Mad 320) and ILR 26 Mad 410 which we have already noticed. If the learned Judges were following the principle laid down in the two decisions referred to by them, which indeed they purported to do, it cannot be contended that their decision, is in conflict with the earlier decisions.
37. In a later Bench decision of the Madras High Court, Alagarswami Thevan v. Ramabadra Naidu, AIR 1929 Mad 38(2) Srinivasa Ayyangar and Reilly, JJ. considered the scope of the decision in 10 Mad LW 637 (AIR 1920 Mad 545). They observed as follows :
'It does not appear to have been argued in that case that if the property was in the hands of the receiver and the receiver was in possession of it, no suit to recover the property or possession of the property was liable to be instituted or could be instituted against him by some party who is not in possession of the property. The learned Judges conceded that the receiver was not a necessary party and, if the receiver was the person in possession it is difficult to understand how a suit for possession could be instituted against any other. It seems to have been assumed rather than decided as the result of any consideration or argument that the nature of the suit to be instituted by the plaintiff in such a case would necessarily be only a suit for the recovery of possession of the property. In any case the learned Judge seems to have proceeded on the footing that the suit contemplated is one for possession by a party against whom an order was passed by the Magistrate because the suit before them was for possession of the property. But as it is clear that it is not in any case necessary that a suit in the circumstances should always be a suit for the recovery of possession of property it follows that it is not in every case in which an order of the magistrate is passed that a suit for recovery should be instituted.'
38. In any view, the decision in 10 Mad LW 637 : (AIR 1920 Mad 545), is not in consonance with the long line of authority, both of the Madras High Court and the other High Courts.
39. As rightly observed by Srinivasa Ayyangar and Reilly, JJ. in AIR 1929 Madras 38(2), where a magistrate appoints a receiver to take possession of immoveable property, what happens in the eye of the law is that the property is placed in oustodia legis, for the benefit of the person who may eventually and finally succeed in establishing his title to the property; and it is not necessary for the person affected by the order to institute a suit for the recovery of possession of the property, and he might institute a suit, merely to have his right to the property declared. If so, Article 47 would not apply and a fortiori the consequences of the operation of Section 28 of theLimitation Act cannot follow.
40. Apart from these decisions of the Madras High Court, their Lordships of the PrivyCouncil held in Jagatjit Singh v. Partab Bahadur Singh, AIR 1942 PC 47 that where a person1sues for a declaration of his title to the land inpossession of the receiver in proceedings underSection 145 of Code of Criminal Procedure, Article 47of the Limitation Act does not apply, where there1has been no order for possession by the Magistrate under Section 145, Cri. P. C., and as the suit,is one for a declaration of title, Articles. 142 and 144also do not apply, and that the suit is governedby Article 120 of the Limitation Act.
41. We may, with advantage, consider at this juncture, the essential distinction between an: order passed under Section 145(6) and one passed under Section 146 of the Code of Criminal Procedure. Section 145(6), before its amendment in 1955 (The present suit was instituted before the date of the amendment) read as follows :
'If the Magistrate decides that one of the parties was or should under the first proviso to Sub-section (4) be treated as being in such posses sion of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction and when he proceeds under the first proviso to Sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed.'
42. Section 146 of the Code, before its amendment, was in the following terms :
'(1) If the Magistrate decides that none of the parties was then in such possession, or is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach it until a competent Court has determined the rights of the parties thereto, or the person entitled to possession thereof :
Provided that the District Magistrate or the Magistrate who has attached the subject of dispute may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of a breach of the peace in regard to the subject of dispute.
(2) When the Magistrate attaches the subject of dispute, he may, if he thinks fit and if no receiver of the property, the subject of dispute, has been appointed by any Civil Court, appoint a receiver thereof, who, subject to the control of the Magistrate, shall have all the powers of a receiver appointed under the Code of Civil Procedure :
Provided that, in the event of a receiver of the property, the subject of dispute, being subsequently appointed by any Civil Court, possession shall be made over to him by the Receiver appointed by the Magistrate, who shall thereupon be discharged.'
43. An order made by the Magistrate in proceeding under Section 145, Cri. P. C., is a final order. Under Section 145(6) he confirms and maintains the possession of one of the parties. To apply Article 47, the Magistrate must, under Section 145(6), Cri. P. C. make an order confirming and maintaining the possession of either of the parties. Where, therefore, the Magistrate declares one of the disputants to be in possession, there is a necessary obligation on the part of the person against whom there is an adverse order, to bring his suit within three years from the date of the order, and the object of the suit under Article 47 is virtually to set aside the effect of the summary order of the Magistrate, which is final. An order under Section 146, Cri. P. C., is not invested with any such finality. Under that provision, as it stood before the amendment of 1955, if the Magistrate is unable to decide as to which of the disputants was then in possession of the subject of dispute, or if he decides that none of the parties was then in such possession, it is open to him to attach the property until a competent Court has determined the rights of the parties thereto, or the person entitled to possession thereof. It is open to the Magistrate when he attaches the subject of dispute to appoint a receiver.
The provisos to Sub-sections (1) and (2) of Section 146 are important. Under the proviso to subsection (1) it is open to the Magistrate to withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of a breach of the peace. Under the proviso to Sub-section (2), in the event of a receiver of the properly being subsequently appointed by any Civil Court, the Receiver appointed by the Magistrate is bound to deliver possession to the Receiver appointed by the Court. The above two provisos elucidate the nature and character of the order passed by the Magistrate under Section 146. From the language of these provisos it is plain that the order under Section 146 has none of the attributes of finality. When the subject of dispute is attached or placed in the custody of a receiver, he is custodia legis and his possession enures to the benefit of the party who is ultimately successful. This follows from the language of Section 146 which says that the Magistrate is entitled to attach the subject of dispute until a competent Court has determined the right of the parties thereto.
44. Article 47 has no application where there is merely an attachment of the property under Section 146 of the Code of Criminal Procedure. When property is attached under Section 146, Cri. P. C. the right and title of the true owner cannot be extinguished under Section 28 of the Limitation Act, however long the attachment may continue, as the legal possession during the continuance of the attachment is in the person having title on the date of the attachment.
45. We, therefore, hold that Article 47 of the Limitation Act has no application to the present suit and that the conclusion reached by the lower Court, that the suit was not barred by limitation, is correct and must be affirmed.
46. The learned counsel for the appellants has raised certain subsidiary points. In the first place, it is contended by him that the appellants, who are Koyas and are members of a hill tribe, had been defrauded and that they did not really execute the sale deeds in favour of Tirupathirayudu. The case of the appellants that their thumb-impressions had been taken on blank pieces of paper and they must have been pressed into service for the purpose of the execution of the sale deeds, does not sound credible, for the simple reason that these sale deeds are registered documents. It was pointed out by the trial Court that the present appellants, who had pleaded that they had acquired title by adverse possession, had not been able to substantiate their plea.
47. On these conclusions, which, in our opinion, are correct, this appeal must fail and is accordingly dismissed with costs of respondents 1 and 2.