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Ram Sahai and anr. Vs. Binod Behari Ghose - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in71Ind.Cas.402
AppellantRam Sahai and anr.
RespondentBinod Behari Ghose
Excerpt:
limitation act (ix of 1908), schedule i, article 47 - possession taken forcibly by unsuccessful party--declaratory suit--limitation--criminal procedure code (act v of 1898), section 145--order passed against head of joint hindu family, whether binding on family. - .....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 7th of september 1913 from sita ram ghose and his two brothers. binode behari ghose, the defendant-respondent here, claimed a share in the compound and it appears that proceedings were taken against him at the instance of ajudhia prasad under section 145 of the code of criminal procedure. those proceedings ended in an order by the magistrate maintaining the possession of binode behari ghose 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 9th of march 1914. subsequently, ajudhia prasad died without having.....
Judgment:

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 7th of September 1913 from Sita Ram Ghose and his two brothers. Binode Behari Ghose, the defendant-respondent here, claimed a share in the compound and it appears that proceedings were taken against him at the instance of Ajudhia Prasad under Section 145 of the Code of Criminal Procedure. Those proceedings ended in an order by the Magistrate maintaining the possession of Binode Behari Ghose 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 9th of March 1914. Subsequently, Ajudhia Prasad died without having instituted any suit in the Civil Court to contest the Magistrate's order. Afterwards in 19T9 the plaintiffs-appellants forcibly ejected Binode Behari Ghose from the room he was occupying. Binode Behari 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 Behari Ghosh was put back into possession of the room. This order was dated the 8th of September 1919. Thereafter on the 9th 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 Article 47 of the Second Schedule to the Indian limitation Act the suit was barred by time. The plaintiffs come here in appeal and as the questions involved are somewhat difficult the case 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 Code of Criminal Procedure 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 the3? were not claiming through him but in their own right as surviving members of a joint Hindu family of which Ajudhia Prasad was a member. 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 interfere with that finding. On the third point it seems to us that the plaintiffs are in a dilemma. There is no doubt that Ajudhia Prasad took the lease. He either took it in his personal capacity or he took it as the head and. managing member of a joint Hindu family. If he took it in his personal capacity there can be no doubt that the plaintiffs must claim through him as his next heirs, and, therefore, Article 47, if it applies at all, would apply to them. If, on the other hand Ajudhia Prasad took the lease as the managing member of the family for the family, it seems to us that he must have taken proceedings under Section 145 as the managing member of the family on behalf of the family, and, if so, he and the, whole family were bound by the order under Section 145. There remains the first ground which is not free from difficulty. Article 47 lays down that a suit by any person bound by an order respecting the possession of immoveable property made under the Code of Criminal Procedure of 1898 to recover the property comprised in such order must bring a suit within three years of the date of the final order in the Criminal Court. The final order in the Criminal Court was passed, as we have said, on the 9th of March 1914. Any suit, therefore, to recover possession of property comprised in such order could only have been brought up to the 9th of March 1917. No such suit was brought. It seems to us, therefore, that the learned Judge of the Court below is right in holding that the suit was barred. It does not seem to us that the plaintiffs by taking the law into their own hands and forcibly ejecting the defendant so as to enable them to bring a suit in the form of a suit for a declaration merely can enlarge the period of limitation prescribed by law within which only they were entitled to recover possession. We, therefore, are of opinion that the decisions of the Courts below were right. We accordingly dismiss this appeal with costs.


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