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Bidyadhar SwaIn and anr. Vs. Padmanath Singh Deo and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtOrissa High Court
Decided On
Case NumberSecond Appeal Nos. 129 to 134 of 1956
Judge
Reported inAIR1959Ori87
ActsLimitation Act, 1908 - Schedule - Article 47; Code of Civil Procedure (CPC) , 1908 - Sections 11; Code of Criminal Procedure (CrPC) - Sections 145
AppellantBidyadhar SwaIn and anr.
RespondentPadmanath Singh Deo and ors.
Appellant AdvocateB.K. Pal and ;M.S. Ray, Advs.
Respondent AdvocateH. Mohapatra and ;R.N. Misra, Advs.
DispositionAppeals dismissed
Cases Referred and Satya Charan De v. Emperor
Excerpt:
.....the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the learned magistrate declared possession in favour of the second party mainly because the additional revenue officer who had made the enquiry was satisfied that they were actually in possession of the disputed property in 1934. he disbelieved the evidence of the 1st party's witnesses on the question of possession. 6. it is well settled by a series of decisions that a lessor does not claim under a lessee..........valuable consideration. the contesting defendants, however, urged that the suit lands were not the hetta lands of the zamindar but were the ryoti (jerayati) lands in the possession of the defendants and their ancestors for a period of forty years on payment of rajbhag.the two lower courts held that the suit lands were the hetta lands of the zamindar as decided by the deputy director of surveys and confirmed by the board of revenue (exts. 1 and 2). they further held that the zamindar made a valid ryoti settlement with the plaintiffs on 25-10-47 and that the settlement was made bona fide for valuable consideration and that therefore it would not be hit by the provisions of section 3 of the orissa communal forest and private lands (prohibition of alienation) act of 1948.they rejected the.....
Judgment:

R.L. Narasimham, C.J.

1. These six second appeals arise out of appellate judgment of the Additional Subordinate Judge of Berhampur affirming the judgment of the Munsif of Aska in six title suits (Title Suits Nos. 146/51, 147/51, 148/51, 11/53, 12/53: and 42/53) which were heard analogously in the two lower Courts and disposed of in one judgment. These second appeals were also heard analogously and will be dealt within one judgment.

2. The appellants are all contesting defendants against whom a decree for eviction was passed by the trial court and confirmed on appeal. The suit lands appertain to Survey No. 22/2 of village Olama within the former impartible estate of Dharakote in Ganjam district. The plaintiffs claimed the lands as the private (Hetta) lands of the Zamindar of Dharakote who granted ryoti pattas in their favour on 25-10-1947 after receiving valuable consideration. The contesting defendants, however, urged that the suit lands were not the Hetta lands of the Zamindar but were the ryoti (Jerayati) lands in the possession of the defendants and their ancestors for a period of forty years on payment of Rajbhag.

The two lower Courts held that the suit lands were the Hetta lands of the zamindar as decided by the Deputy Director of Surveys and confirmed by the Board of Revenue (Exts. 1 and 2). They further held that the Zamindar made a valid ryoti settlement with the plaintiffs on 25-10-47 and that the Settlement was made bona fide for valuable consideration and that therefore it would not be hit by the provisions of Section 3 of the Orissa Communal Forest and Private Lands (Prohibition of Alienation) Act of 1948.

They rejected the defendants' contention that the pattas in favour of the plaintiffs were antedated. They also rejected the defendant's claim to have been in possession of the same as ryoti of the Zamindar for 40 years as alleged by them. These concurrent findings of the two lower courts were rightly not challenged in second appeal.

3. Mr. Pal, on behalf of the appellants contended that the two lower courts committed a serious error of law in holding that the suits were not barred under Article 47 of the Limitation Act. It appears that in the year 1935 there was a proceeding under Section 145 Cr. P. C. between Budhi Panigrahi and Krishna Chandra Panigrahi (who were members of the 1st party) on the one hand and some of the defendants (who were members of the second party) on the other, in respect of the disputed property (Survey No. 22/2 of village Clama.)

The decision of the Magistrate dated 20-12-35(Ext. 3) was in favour of the second party whoare now represented by the contesting defendantsand other persons. Mr. Pal urged that under Article 47 of the Limitation Act a suit to set aside anorder under Section 145 Cr. P. C. should have beenbrought within three years from the date of theorder of the Magistrate but as the suits underappeal 'were brought in 1951 they were clearlytime-barred.

(4) Article 47 of the Limitation Act is as follows : --

By a person boundby the order respecting possession ofimmovable property made under the Code of Criminal Procedure 1898, orthe Mamlatdars Courts Act, 1906, or by any one claiming under such person torecover the property comprised insuch order.

Three years.

Date of the final order of the case.

5. The main question for consideration is whether the plaintiffs can be said to be either persons bound by the order under Section 145 Cr. P. C. or claiming under persons who were bound by that order. A close scrutiny of the judgment in the said proceeding under Section 145 Cr. P. C. would show that the first party alleged that the disputed lands were the Hetta lands of the Zemindar of Dharakote and that they were cultivating the same as lessees of the Zamindar. The second party in that proceeding (contesting defendants) contended that the disputed lands were not the Hetta lands of the Zamindar but that they were ryoti lands under their possession.

The learned Magistrate declared possession in favour of the second party mainly because the Additional Revenue Officer who had made the enquiry was satisfied that they were actually in possession of the disputed property in 1934. He disbelieved the evidence of the 1st party's witnesses on the question of possession. He was not primarily concerned with the question as to whether the lands were the Hetta lands of the Zamindar or the rioyoti lands of the defendants, but was solely concerned with the question as to which party was in actual possession of the same on the date of commencement of the proceeding. The zamindar of Dharakote was admittedly not a party to that proceeding.

6. It is well settled by a series of decisions that a lessor does not claim under a lessee and that consequently a decision in a litigation between a lessee and a third party will not operate as res judicata as against the lessor -- see Rambrohmo Chuckerbutti v. Bunsi Kurmokar, 11 Cal LR 122; Brojobehari Mitter v. Kedarnath Mazumdar, ILR 12 Cal 580 (FB); Nallamuthu v. Srinivasa Iyer, AIR 1924 Mad 576; Sripadbhat v. Rama Babaji, AIR 1927 Bom 270 and Sher Bahadur v. Madhoprasad, AIR 1935 Oudh 394.

The material portion of the phrase used in Section 11 of the Civil Procedure Code is 'Or between parties under whom they or any of them claim' whereas the phrase used in Article 47 of the Limitation Act is 'by anyone claiming under such a person'. The close similarity in the language used in the two phrases is apparent, and the principles laid down in the aforesaid decisions regarding the applicability of the principle of res judicata must apply with equal force when considering the applicability of Article 47 of the Limitation Act.

Following the aforesaid decisions, therefore, I would hold that the Zamindar of Dharakote as the lessor of the first party in the proceeding under Section 145, Cr. P. C. cannot be said to be claiming under the lessees, and consequently, the latter portion of Article 47 of the Limitation Act would not apply. The plaintiffs in this litigation are subsequent alienees from the Zamindar of Dharakote and hence they cannot also be held to be claiming under the first party in the previous proceeding under Section 145, Cr. P. C.

7. Mr. Pal, while fairly conceding that the second part of Article 47 of the Limitation Act may not help his clients, urged that the zamindar and his subsequent alienee were bound by the order under Section 145 Cr. P. C. and that the first part of that Article would apply. According to him. in the previous proceeding under Section 145, Cr. P. C. the real fight was between the Zamindar of Dharakote who claimed the disputed lands as his Hetta lands on the one hand, and the second party who claimed them as ryoti lands, on the other, and that the first party were merely set up by him to fight out his litigation.

There is however, no passage in the order of the Magistrate in the proceeding under Section 145, Cr. P. C., to support this argument. The first party claimed to be the lessees of the Zamindar for three years. The Magistrate did not hold anywhere in his judgment in that proceeding, that they were merely creatures set up by the Zamindar of Dharakote and that he was the real first party in that proceeding. The depositions of some of the witnesses in that proceeding were also exhibited in this litigation and they do not support such an argument. Moreover, though this was one of the important issues in this litigation (issue no. 2), no such plea was taken before the trial court and there is no findng to that effect. Hence, I must reject Mr. Pal's contention.

8. It is true that a final order under Section 145, Cr. P. C. would bind not only the parties named in that order, but all other persons whom they represent and who may be interested in the dispute Thus in Lekhraj Roy v. Court of Wards, 14 Suth VVR 395, it was held that where two rival zamindars fought out their litigation through their lessees the decision would bind them even though they were not expressly made parties.

Again in Jainath v. Ramlakhan, AIR 1929 Pat 505 and Satya Charan De v. Emperor, AIR 1930 Cal 63, it was held that when notice of a proceeding under Section 145 Cr. P. C. was served at the spot, all persons interested in the dispute must be deemed to have been aware of that proceeding and must be bound by the same even though they did not care to enter appearance before the Magistrate and contest the proceeding. Sub in a proceeding under Section 115, Cr. P. C. the subject-matter of the dispute is not title but possession either on the date of the proceeding or on a date within two months prior to that date.

All persons interested in that dispute would un-doubtedly be bound by that proceeding. But here, It cannot be said that the question as to whether the disputed property was Hetta land or ryoti land was the dispute in the proceeding under Section 145, Cr. P. C. There the sole question was whether the first party or the second party was in actual possession, whatever may be the nature of the land. The first party alleged that three years before the said proceeding he had obtained lease from the zamindar and was in possession.

The Zamindar could not possibly have known about that dispute nor could he have intervened as a party because it was not the case of either party that he was in actual possession himself. He was not therefore bound by the adverse order passed against his lessee by the Magistrate in the proceeding under Section 145, Cr. P. C. unless it can be shown that in reality he was the first party and that the persons described as the first party were merely set up by him to fight out his battle with the tenants: I have already shown that the necessary averments of facts for such finding are not to be found here and this point was not taken in two lower courts.

9. I would, therefore, hold that neither of the, two clauses of Article 47 of the Limitation Act would apply in the present case and the suit was not barred by limitation.

The appeals are dismissed with costs. Therewill be one hearing fee in all the appeals.


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