1. The three plaintiffs, who are brothers, filed a suit for possession of plot measuring 67,450 sq. ft. on the allegations that according to the plaintiffs, the plot in dispute was owned by the following persons and they had shares as detailed against each :--
(1) Mohan Mal (plaintiffs' father) 3 shares.
(2) Masania (relation of Mohna Mal) 3/8 shares.
(3) Sondhi, Harditta and Gauri (relations of Mohna Mal) jointly3/8 shares.
(4) Jit Mal 3 shares.
(5) Jainti Parshad 1 share.
(6) Ram Chand (relations of Mohna Mal) 1 share.
The total shares came to 83/4. The aforesaid shares were purchased on 16-9-1898. On 10-12-1903, Jit Mal sold his three shares to Mohna Mal. On 27-3-1914, Jainti Parshad sold his one share to Mohna Mal. Ram Chand, Sondhi, Harditta and Gauri, who jointly held 1 3/8 shares, died issueless and, therefore, their shares were inherited by Mohna Mal and Sunder as would be clear from a reading of the pedigree table reproduced in the judgment of the trial Court. In this manner, the plaintiffs claim that the Mohna Mal had 7 1/8 shares out of which in Sept., 1941, he gifted two Bighas to land to Jain Sabha and since one share was equal to one Bigha, therefore, he was left with the ownership of 5 7/8 shares. Out of the total suit-land, the plaintiffs claim to be owners of 58,690 sq. ft.; whereas Milkhi Ram (defendant No. 2)(who is one of the great-grand children of Sunder) owns 2920 sq. ft. and the rest of the land is owned by defendants 3 to 7, who are the remaining descendants to Sunder. In the year 1959, dispute about the possession of the plot arose in which one Karnek Singh (who is defendant No. 1 now) alleged that he was in possession of the same as a lessee of Milkhi Ram. Ultimately, proceedings under Sections 145, Cr. P.C. were started in which by order dated 17-10-1960, the S. D. M. found that Harnek Singh was in possession of the entire land and allowed him to continue to possession. Against the aforesaid order, the present plaintiffs went up in revision before the learned Sessions Judge who dismissed the same on 2-2-1961. A copy of the said order is Exhibit D-5. Thereafter, the present plaintiffs filed a civil suit to challenge the order of the S. D. M. as being illegal, null and void, but their suit failed up to the Letters Patent Bench of this Court. The L. P. A. was dismissed on 5-1-1968 and it was finally observed that the plaintiffs could file a suit of possession. Consequently, on 17-4-1968 the present suit for possession was filed which was contested only by Milkhi Ram and Harnek Singh. Pleas of adverse possessions, res judicata because of earlier suit and the suit being barred by limitation, were raised.
2. On the contest of the parties, the following issues were framed :--
1. Whether the plaintiffs are the owners of 5 7/8 share in the land detailed in para No. 1of the plaint measuring 8 Bighas 15 Biswas and the defendant No. 2 is the owner of 7/24 shares and defendants Nos. 3 and 4 are owners of 7/24 shares while defendants Nos. 5 to 7 are the owners of 7/24 share therein respectively? O. P.
2. Whether the suit is within limitation O. P.
3. Whether the suit is barred by the principles of res judicata O. D.
4. Whether the suit is barred under O. 2, R. 5, C.P.C. O. D.
5. Whether Mohna Mal had gifted two Bighas of land to Jain Sabha as alleged in para No. 7 of the plaint O. P.
6. Whether the gift of the suit land by defendant No. 2 in favour of defendant No. 8 is valid O. D.
7. Whether the suit in the present form is maintainable O. P.
8. Whether the plaintiffs have no cause of action O. P.
9. Whether defendant No. 2 had become the owner of the suit land by way of adverse possession O. D.
10. Whether the suit is properly valued for purposes of court-fees and jurisdiction O. P.
3. three years of the order of the S. D. M. but the same was filed beyond that period. No arguments were raised on issues 3 and 4, therefore, they were decided against the defendants. Issue No. 5 was decided against the plaintiffs. Under issue No. 6, it was found that the gift made by Milkhi Ram (defendant No. 2) in favour of his wife (defendant No. 8) beyond his share of 7/24, was not valid. Issue No. 7 was held in favour of the plaintiffs and the suit in the present form was held to be maintainable. Issue No. 8 was decided against the defendants. Under issue No. 9, it was held that the defendant No. 2 had failed to prove that he had become owner by adverse possession. Issue No. 10 was also decided against the defendant. In view of findings on issue No. 2 that the suit was barred by limitation, the suit was dismissed by judgment and decree dated 26-8-1971. This is plaintiffs' first appeal.
4. Harnek Singh (respondent No. 1) was served in appeal but in spite of service, appearance has not been put in, therefore, I proceed to decide the matter ex parte so far as he is concerned. Milkhi Ram (respondent No. 2) died during the pendency of the appeal and his legal representatives were brought to record. For the minor children of Milkhi Ram, a Court-guardians was appointed, and Shri Ravinder Seth, Advocate, has appeared as Court-guardian, on behalf of the minor legal representatives of Milkhi Ram. The other respondents have not appeared in spite of service. Ex parte against them also. Counsel for the parties appearing before me, have contested this appeal only on issue No. 2 and no argument was raised before me on any other issue. Accordingly, the findings on issues other than issue No. 2, recorded by the Court below, are upheld.
5. Coming to issue No. 2, I am of the considered opinion that the trial Court was in error in applying Article 47 of the old Limitation Act and in coming to the conclusion that the suit was time barred. The order of the S. D. M. in proceedings under Section 141, Cr. P.C. was passed on 17-10-1960. At that time, the old Limitation Act was in force and Article 47 of the said Act was applicable and if limitation from this date had to be counted, then of course any suit filed after 17-10-1963, would have been clearly barred by time. One important fact which deserves to be taken notice of, is that against the order of the S. D. M., the plaintiff filed a revision which was heard by the learned Sessions Judge who dismissed the same on merits on 2-2-1961. A copy of the said order is Exhibit D-5 of the record. A reading of Article 47 of the old Limitation Act shows that the limitation of three years would start from the date of the final order in proceedings under the Cr. P.C. The final order in proceedings under Section 145, Criminal P. C. has to be that of the Sessions Judge which is dated 2-2-1961 and, therefore, three years' limitation would start from that date, i. e., from 2-2-1961, which would have expired on 2-2-1964. In the meantime, the old Limitation Act was repealed and the Limitation Act of 1963(hereinafter referred to as the Act) came into force on 1-1-1964 i. e., before the limitation under the old Limitation Act expired. Therefore, for a suit, which he had to be filed on or after 1-1-19674, the limitation would have been applicable under the Act (of 1963). The Act does not contain any provision parallel or analogous to Article 47 of the old Limitation Act. The learned counsel for the appellants has urged that since there is no provision like Article 47 of the old Limitation Act, the present suit has to be treated a suit for possession or joint possession on the basis of title and, therefore, Article 65 of the Act would be applicable for which limitation would be 12 years. He also invited my attention of the following passage from the commentary on the Limitation Act, 4th (1965) Edition, Volume II be Chitaley, starting at the bottom of page 1214 :--
'Under the Act of 1908 suits by persons bound by an order respecting the possession of immovable property made under the Criminal P. C. or the Mamlatdars' Courts Act, 1906 were governed by Article 47 of the Act and a period of three years' limitation was provided for from the date of the final order in the case. The suit contemplated by that article was one based on title to the possession of the property and not on plaintiff's previous possession such as was contemplated by Section 9 of the Specific Relief Act, 1877(now Section 6, Specific Relief Act, 1963). Such a suit is now left to be governed by the new Article 65 in the present Act. Thus, a uniform period of 12 years has been provided for all suits for possession based on title.'
6. A reading of the aforesaid quotation clearly goes to show that after the repeal of Article 47 of the old Limitation Act, Art. 65 of the Act would be applicable and the limitation would be 12 years. Section 31 of the Act provides that in case limitation for a suit prescribed by the old Limitation Act had expired before the commencement of the Act, then nothing in the Act could enlarge the limitation or enable suit to be filed. Therefore, if the limitation for the present suit had expired before 1-1-1964, then it could be dismissed as time barred, but as already found above, the last date for filing the suit was 2-2-1964, as counted from the order passed by the learned Sessions Judge. Once the Act comes into force, then the limitation provided by this Act would be applicable. Therefore, applying Article 65, I hold that the suit was clearly within time.
7. Shri Ravinder Seth, appearing for the legal representative, strenuously urged that the order of the S. D. M. has to be considered as the final order and not that of the learned Sessions Judge and if limitation is counted from the order of the S. D. M., the suit is clearly bared by time. In support of his argument, reliance has been placed on Pitambar Chaudhury v. Achoki Chaudhuri, AIR 1951 Pat 325. This decision certainly supports what is contended by Shri Seth, but with respect of the learned Judges, I regret my inability to agree with the reasoning adopted by them. In that case also, revision was filed before the learned Sessions Judge against the order of the learned Magistrate, which was dismissed. On behalf of the plaintiffs, in that case reliance was placed on a Division Bench decision in Rampal Singh v. Mansukh Raj Khemka, AIR 1941 Pat 372, to urge that in case revision is filed, then the final order would be of the revisional Court because in Rampal Singh's case (supra) revision against an order passed in proceedings under Section 145, Cr. P.C. was filed before the High Court and it was held by the Division Bench that the final learned Judges deciding Pitamber Chaudhury's case (supra) distinguished that decision on a process of reasoning with which I am unable to agree. The learned Judges observed that in case against the order of the learned Magistrate, revision had been filed in the High Court, then the order of the High Court, would have been the final order in the proceedings and since this was not done, therefore, the order of the learned Sessions Judge would not be treated as the final order. It was further observed that the learned Sessions Judge could not allow the revision and he could only recommend it to the High Court for acceptance. That is true according to the Sessions Judges' revisional powers as contained in the Cr. P.C. at that time, but at the same time, if the learned Sessions Judge found that there was no merit in the revision, he could dismiss the same. Therefore, the final order would be of the learned Magistrate if no revision if filed, but if a revision is filed before the Sessions Judge and is dismissed, then it would be of the learned Sessions Judge if no further revision is filed before the High Court; and the final order would be of the High Court if the matter is further taken up to that Court. Therefore, in law, we have ultimately to see the final order passed in a case and it cannot be said that if such an order is of the High Court then it is the final order and if such an order is passed by the learned Sessions Judge, then it is not the final order. Accordingly, I dissent from Pitambar Chaudhury's case (supra) and following Rampal Singh's case (supra) and the well established principles of law and hold that the order of the Sessions Judge, on the facts of the present case, would be treated as the final order for the purposes of Article 47 of the old Limitation Act.
8. The matter can be viewed from another angle also. Admittedly, Milkhi Ram was one of the co-sharers. Milkhi Ram handed over possession to Harnek Singh. Although Harnek Singh contested the proceedings under Section 145, Cr. P.C., yet he has not appeared in this Court to oppose the appeal. The appeal is being opposed on behalf of some of the legal representatives of Milkhi Ram. Milkhi Ram being a co-sharers of the plaintiffs, for settlement of a dispute between them on the basis of title, the limitation would be 12 years. Therefore, any order passed in proceeding under Section 145, Cr. P.C. cannot nullify the rights of the present plaintiffs who are co-sharers even if they do not challenge the order of the S. D. M. within three years because really what they claim even under the old Limitation Act would be, not exclusive possession, but joint possession with other co-sharers. Therefore, from this angle also, the suit cannot be held to be barred by time.
9. Before concluding this matter, an application filed by the appellants under O. 41, R. 27 of the Civil P. C. for additional evidence, which was ordered to be heard along with the main appeal, deserves to be disposed of. It is urged that against the order of the learned Sessions Judge dated 2-2-1961, further revision was filed in this Court which was dismissed on 18-4-1961 and a copy of the said order is attached as Annexure 'P-1' with the application. Permission is sought to produce on record the aforesaid order to make up the limitation up to 18-4-1964 and to plead that on 1-1-1964, the Act came into force under which the limitation was 12 years and, therefore, to the present suit, limitation of three years under Article 47 of the old Limitation Act would not be applicable. Since on the same process of reasoning, I have held that the suit is within limitation even from the order of the learned Sessions Judge, I find it wholly unnecessary to go into the application for additional evidence in any further detail. If I had held that Pitambar Chaudhury's case (AIR 1951 Pat 325)(supra) lays down the correct law, then I would have gone into the application for additional evidence in detail and probably in the interest of justice, may have allowed permission to produce the High Court judgment or record. Accordingly, the application for additional evidence is considered to be infructuous and is dismissed as such.
10. For the reasons recorded above, the finding recorded by the trial Court on issue No. 2 is reversed and it is held that the suit is within limitation. Accordingly, the appeal is allowed and the plaintiffs are granted a decree for joint possession to the extent of 4 7/8 share. Since only the Court guardian has appeared on behalf of the minor legal representatives, I do not propose to burden them with costs and order that the parties shall bear their own costs.
11. Appeal allowed.