1. The facts giving rise to this appeal are rather complicated, but the question of law arising is extremely simple.
2. The plaintiffs deceased husband, Danei, was the adopted son of Kelu. Kelu and Pira were uterine brothers. Subsequent to the adoption of plaintiff's husband a son, Kalindi, was born to Kelu, and as Kalindi died issueless when he was joint with Danei, Kelu'a 8 annas share in the joint family properties devolved on him. Pira brother of Kelu, died leaving him surviving his widow, Sadhabani. The admitted case of the parties is that by a registered deed of partition, dated 15th June 1913, the plots in disputes were divided between Kelu and Pira. The present dispute relates to possession of the properties allotted at the partition. During his lifetime Kalindi (the natural born son of Kelu) executed a deed of gift dated 30th January 1917, in favour of Banambar, son of Pira, conveying the 8 annas share of Kelu in the suit properties ignoring the interests of Danei. Banambar, however, predeceased his mother, Sadhabani. Thus, Sadhabani on the death of her son, Banambar, became entitled to the entire interest in the property, 8 annas interest having been inherited by her through Pira and the rest by the deed of gift from Kalindi to her deceased son. Sadhabani herself gifted away her entire interest in the property to her son-in-law, one Arta, by a registered deed of gift dated 21st November 1919. Arta, in his turn, executed a sale of the entire property in favour of defts. l to 2 by a registered sale deed dated 11th July 1923. Danei's son, Hazuri, asserted his title to s annas interest in the property and executed a sale deed, dated 26th June 1923, in favour of one Padan Panda.
3. After a few preliminary skirmishes in the criminal Court, proceedings under Section 145, Criminal P. C., were started in the year 1923 to which the plaintiff. Rang and the alienee, Padan, and plaintiff's tenant, one Domai were arrayed on one side as the first party and the present defendants (viz., the vendees from Arta) and Sadhabani, the widow of Pira, were arrayed as the second party. The Magistrate found that the plaintiff was in possession of four rooms standing on plot No. 126. He also found that Sadhabani, the widow of PIRA, was in possession of the rest of the disputed lands together with five rooms thereon. He further found that neither Arta nor the present defendants to this suit bad had any possession over any portion of the lands or houses comprised in Chose proceedings. He accordingly ordered that
'the persons as aforesaid shall so continue in their possession unless and until they are evicted therefrom in due course of law.'
4. The plots in dispute are: R.S. plot No. 122 measuring .08 of an acre; R.S. plot 124 measuring .05 of an acre with two shop rooms thereon; R.S. plot No. 125 measuring .01 of an acre with two rooms ; and R.S. plot No. 126, measuring .04 of an acre with six rooms thereon. A slight increase in the area of most of these plots is noticed in the subsequent survey and the Current Settlement entries show that the R.S. plots numbers have also been altered. Thus R.S. 122 corresponds to C.S. 212 and measures .09 of an acre; R.S. 124 corresponds to C. S. 211 and measures .08 ; and R.S. 126 corresponds to C.S. 203 though its area has remained unchanged. According to the deed of partition plot No. 122 was divided equally between Kelu and Pira, each getting a half share; out of plot No. 124 Kelu got .02 and Pira got .03 with the two shop rooms thereon ; plot No. 125 measuring .01 of an acre with two rooms thereon was allotted to Kelu alone. Thus plots Nos. 124 and 125 measuring together .06 of an acrs and containing four rooms were equally divined so that each cosharer got .03 of an acre of land and two shop rooms. Plot No. 126 was evenly divided so that each party got 02 and three rooms. It appears that at the time of the proceedings under Section 145, Criminal P.C., the plaintiff was found in possession of all the four shop rooms, standing on plots 124 and 125 and of one room on plot No. 126. The plaintiff was thus in possession of five rooms though the possession was not in accordance with the allotment made at the partition. Sadhabani, the widow of Pira, was similarly in possession of five rooms on plot No 126. The purchasers from Arta had no possession of any of these rooms or lands at the time.
5. The Magistrate having declared the possession of the present plaintiff in respect of five rooms, the purchasers from Arta ware obliged to file a civil suit for declaration of their title to and recovery of possession of the lands together with the rooms thereon, in C.S. No. 439 of 1934. In this suit the findings were that : (1) Danei Lenka had been adopted by Kelu ; (2) he formed a joint undivided family with Kalindi and Hazuri; and (3) Pira and his son Banambar constituted a different joint family. The trial Court also held that Kalindi's alienation by way of gift was invalid and inoparative and that the gift by Sadhabani was not valid beyond her 8 annas interest in the property. He further held that the plaintiffs the purchasers from Arta never had possession of the suit properties and that their sale was valid to the extent of 8 annas share of Pira's and no more Referring to the sale deed executed by Hazuri (plaintiff's predeceased son) the trial Court held that the sale in respect of the two rooms on plot No. 124 was invalid but that the sale could take effect in respect of 2 decimals of land on R.S. plot No. 124 and the entire R. S. plot No. 125 together with the shop rooms thereon. The title of the purchasers, viz., the plaintiffs in that suit, was accordingly declared to be valid in respect of Pira's share only, while their claim with regard to the remaining 8 annas share of the disputed property, namely the share allotted to Kelu was disallowed. In execution of this decree of the trial Court, the plaintiffs took possession of the rooms on plot No. 121 on 8-9-1931.
6. The present suit was raised by Ranga Bewa, widow of Kelu, on 20-5 1939. She prayed for separate possession of the properties allotted to her husband under the deed of partition of 1913 or, in the alternative for division of the properties in equal moieties. The suit had a rather chequered career and had come up once before the High Court in S. A. 59 of 1941. Manohar Lall J. who heard the appeal, remanded the appeal for a fresh disposal in the light of certain observations made in his judgment with regard to the scope of the order under Section 145, Criminal P. C. I very much regret to note that those observations have not been properly appreciated by the learned Additional Subordinate Judge who heard the appeal after remand, and the very same mistake which necessitated the remand has been responsible for the judgment under appeal before us.
7. The learned Additional Subordinate Judge directed the dismissal of the plaintiff's suit on the ground that the plaintiff having failed to file a suit within a period of three years from the date of the order under Section 145, Criminal P. C., as prescribed under Article 47, Limitation Act, had lost her right to the property. In arriving at this conclusion the learned Additional Subordinate Judge committed errors of record, the most notable of which is that, according to him.
'. .. the four rooms claimed and dealt in the Section 145 proceedings are the three rooms standing on old plots124 and 125 and the one room standing on R.S. plotNo. 126.'
This is an entirely erroneous impression of whatwas in dispute in the Section 145 proceedings. Thelearned Subordinate Judge winds up his conclusion thus:
'Even conceding that the entire land of Kelu Lenka's half share appertaining to the first group was found in possession of the plaintiffs at the time, Section 145 proceedings were started, the decision for the most part being adverse to the plaintiff, she was to establish her title within the period of three years prescribed therefor under Article 47, Limitation Act.'
AS pointed out by me earlier the plaintiff's possession of five rooms viz., two standing on the plot No. 124, two on plot No. 125 and one on plot No. 126, was upheld. The effect of that order was that plaintiff was declared to be in possession of an excessive share to which she was not entitled. I therefore fail to see how the order could be construed to be against the plaintiff and why she should have filed a suit 'to recover possession of property' as contemplated under Article 47. Article 47, Limitation Act, in terms prescribes that
'a suit to recover the property comprised in such order should be brought by a person bound by an order respecting the possession of immovable property made under the Code of Criminal Procedure.'
The plaintiff was under no obligation and did not need to recover any property as she was already in possession of more than her legitimate share. The defendants were therefore rightly driven to file a suit for recovery of possession and Article 47 has no bearing on this matter, the plaintiff's suit being one for an equal division by metes and bounds between herself and Sadhabani's representatives-in-interest. See Bhimappa v. Irappa, 26 Bom. 146 : (3 Bom. L. B. 694). Article 47 is restricted to those cases where the party is held to be out of possession in a proceeding under Section 146, Criminal P. C., and cannot apply to a case like the present where the possession of two co-sharers is confirmed by the Magistrate. There is no necessity, arising out of the order under Section 145, Criminal P. C., either for the plaintiff or for Sadhabani to bring a suit for a declaration as to which of the two was entitled to a separate right of possession. For a similar case see Pratapa Simha v. Simji Raja Saheb, 51 M. L. J. 652 : (A. I. R. (14) 1927 Mad, 60), where it was held that Article 47, Limitation Act, is inapplicable to such a suit by either of the two. The Bombay High Court has also consistently held that a suit for partition is not a suit for recovery of possession within the meaning of Article 47 and that an order under Section 145, Criminal P. C., against one of the co-sharers does not necessitate the filing of a suit within three years. A different note has been struck in Atale Sunnari v. Talib Husain, A. I. R. (17) 1930 Cal. 612 : (128 I. C.106) and Jai Devi v. Dakshini Din, A. I. R. (24) 1937 ALL. 300: (169 I. C. 125). A later Calcutta case reported in Jogesh Chandra v. Suresh Chandra, 89 C.W.N. 853, lays down that Article 47 does not contemplate that the title of a co sharer should be deemed to be extinguished by reason of his failure to bring a suit within three years, for what that article bars is a claim to exclusive possession. But these cases are clearly distinguishable as the plaintiff before us was found to have been in possession of a larger share of properties than what had been allotted to Pira's share. A suit by the successful party to recover possession is not governed by this Article. See Wise v. Amir un-nissa 7 I. A. 73 : (6 C. L. R. 249 P. C.). There is also evidence to show that the allotments made in the partition deed were not strictly adhered to. But whatever that be the plaintiff was admittedly in possession of the shop rooms on R. S. plot No. 124 although they had been allotted to Pira and Sadhabani was in possession of two out of the three rooms allotted to Kelu on R. S. plot No. 126 at the time of the 3. 145 proceedings. The learned Munsif who tried the title suit filed by the defendants was usable to decide whether the tenants of the present plaintiff were in possession of any of the properties purchased by the defendants in the present suit. We are therefore, satisfied that the plaintiff's possession was upheld by the Magistrate and she was not under any necessity to file a suit to recover possession.
8. Another contention that was raised is that the defendants have acquired title by adverse possession and that the plaintiff should, therefore, be non-suited. It is difficult to appreciate this contention in view of the categorical finding of the learned Munsif who tried the title suit filed by the present defendants, that they had no possession at any lime prior to the suit. It is also evident that the present defendants took delivery of possession of Pira's share only, in execution of the decree in that suit viz. in 1931. So far as the defendants are concerned they have never asserted any hostile title nor have they been at any time in possession prior to 1931. They do not claim to have got into possession prior to that date through Sadhabani. In fact such a case was never set up in the pleadings. Sadhabani is not a party to the suit and we are unable to hold what her defence would have been. She could, if at all, claim possession of two rooms on R. S. plot No. 126 on the strength of the order under Section 145, Criminal P. C. It would have been open to the plaintiff as well to plead and prove that subsequent to the order, and within three years, she got possession of her share in R. S. plot No. 196. In the absence of Sadhabani it is not open to the defendants to raise any such plea, nor shall we be justified in entertaining the plea which is not borne out either by the evidence or by the written statement of the defendants.
9. The judgments of the lower Courts should accordingly be set aside and this appeal allowed with coats throughout. The plaintiff shall be entitled to an equal share of the excess land discovered at the Current Settlement in E. Section plots 124 and 122. She will also recover possession of the entire plot No. 125 with the two rooms standing thereon, .03 1/5 of bari in plat No. 124 corresponding to C. S. plot No. 211 and .04 1/2 of an acre from the east in R. S. plot No. 122 corresponding to C. S. plot No. 212, .02 of an acre in R. S. plot No. 126 corresponding to C. S. plot No. 203 with the three rooms thereon, and an equal moiety in C. S. plots 574 and 207 from the east. The plaintiff shall give up in favour of the defendants the rest of the properties in the partition deed which may be in her possession, if any.
10. I agree with my learned brother that the judgments of the Courts below should be set aside and the appeal allowed with costs throughout.
11. My learned brother has dealt with the question relating to the bar of the suit by limitation under Article 47, Limitation Act on the footing that the plaintiff's rights as co-sharers have not been extinguished by virtue of the order under Section 145, Criminal P. C., inasmuch as, her possession was affirmed is respect of items of property which exceeded her half share. There is justification for the view on the facts that the parties are to be dealt with as co-sharers since as my learned brother points the partition and separate allotment between Kelu and Pira were not in fact adheared to in the subsequent enjoyment.
12. I would, however, rest the decision on the fact that the order under Section 145 is not in favour of the defendants in this case, while no doubt, the said order recognises the possession of Sadhabani in respect of some of the disputed items and to that extent may be against the plaintiff, in any action between plaintiff and Sadhabani, the present defendants can take no advantage of it because they neither derived any possession from her nor validly derived any title through her in respect of Kelu'a half share. See Pakki Adinarayana v. N. Suramma, A.I.R. (12) 1925 Mad. 799 : (86 I. C. 744). On the other hand, the order under Section 145 shows that the present defendants were not in possession of any of the items of property inasmuch as it states as follows:
'In spite of the deed of gift in favour of Artatran Nayak or any sale deed executed in favour of Raghu Lenka and Biswanath I do not find any evidence in support of the fact that either Arta or any of the vendees from him bad had ever any possession over any portion of the lands or house under these proceedings.'
13. In this view I do not consider it necessary to express any opinion on the conflicting views in Bhimappa v. Irappa, 26 Bom. 146 : (3 Bom. L. R. 534) and Atale Sunnari v. Talib Hussain, A. I. R. (17) 1930 Cal 612 : (128 I. C. 106), noticed by my learned brother in his judgment.