1. This appeal is by the 2nd defendant against the judgment and decree in O. S. 57 of 1124 on the file of the District Court, Trivandrum allowing the suit.
2. The plaint schedule properties 3 acres 57 cents in all, consist of portions of four survey numbers, 439/2, 439/1, 438/3 & 438/4 of the Nemom Pakuthy and held under Kandukrishi tenure. The plaintiff's predecessor-in-interest Padmanabha Panicker obtained, first a mortgage Ext. B dated 8-4-1115 and then a sale Ext. A dated 9-4-1118 of these properties. Alleging an attempt at trespass and consequent possibility of breach of peace, Padmanabha Panicker initiated proceedings under Section 145 of the Crl. P. C. before the First Class Magistrate, Neyyattinkara, as M. C. 16 of 1118 against the defendants 1 and 2 and others.
These proceedings ultimately ended against him, vide Ext. M dated 26-1-1121. Subsequently on 28-4-1121 he field suit O. S. 67 of 1121 before the District Court of Trivandrum, against the defendants 1 and 2 and their relations and alienees, for declaration of his title to and recovery of properties with mesne profits, on basis of a completed trespass following Ext. M order, which also was attacked as incorrect. The suit was however, not accompanied by sanction of Government as required under Section 3 of the Travancore C. P. C. in respect of suits of the type concerning Kandukrishi lands.
On preliminary objection raised by the defendants therefor, the suit was dismissed on 1-7-1123. Padmanabha Panicker died pending this suit. The requisite sanction was obtained by the plaintiffs on 20-3-1124 and soon thereafter on 30-3-1124, they filed this suit adopting the same basis as in O. S. 67 of 1121. The 2nd defendant and the 17th defendant (alienee of portion of item 2) alone contested the suit, setting up for the purpose, rival title in themselves and their predecessors. They also pleaded adverse possession and limitation in any event. The court below in elaborate judgment, found all the issues in plaintiffs favour and so decreed the suit, Hence this appeal by the 2nd defendant as above-said. And plaintiffs have filed objection memorandum in respect of mesne profits disallowed.
3. The 2nd defendant in his appeal has raised only one question, viz, as to limitation for the suit, but he put in two aspects--firstly Article 142, Limitation Act, in that the plaintiffs have not proved possession within 12 years of the suit, and secondly Article 47 of the Limitation Act in that the suit has been filed more than 3 years after Ext. M order. The second aspect was not raised by him in the court below and so has not been considered in the judgment under appeal. Dealing with the first aspect the court below found that Munavari Sahib the original owner under registry from the Government, and his heirs following him, were in continuous undisturbed possession of the entire survey 'numbers and other properties covered by the registry down till 20-11-1095, the date of their first alienation under Ext. T, of portion thereof and that the heirs of Ext. T vendee were able to and did give possession to Padmanabha Panicker of the plaint properties under Ext. B mortgage herein on 8-4-1115, within 12 years of this suit.
There had indeed been a prior litigation in O.S. 1211 of 1109 of the Trivandrum Munsiff's Court in respect of item 1 where defendants 1 and 2 had set up their rival title and possession as against Ext. T vendee and had failed rignt up to the High Court, vide Exts. P, Q and R judgments. The defendants could therefore, according to the learned Judge, have no better footing as regards items 2 to 4 included in compact block along with item 1. The learned Judge also found that the 2nd defendant was estopped from questioning the effectiveness of Ext. B in conferring possession to Padmanabha Panicker because, on its very date, its executants had executed Ext. C sale in respect of their balance area in the survey numbers to Pw. 2 nephew of the 2nd defendant and the 2nd defendant was an attestor to both Exts. B and C.
4. Arguing the question of limitation under Article 142, learned counsel made a gallant attempt to attack both limbs of the learned Judge's reasoning as above and urged that whatever may be said of item 1, there was no definite proof on the side of the plaintiffs as to possession of items 2 to 4. We think, however, that the learned Judge below was right in drawing inference as to possession of items 2 to 4 from the judgments Exts. P, Q and R concerning item 1. For it is the contentions that were disallowed in those judgments that are now being put forward. And as to his reliance on the principle of estoppel as against the 2nd defendant, there can be no doubt that an attesting witness can be shown, to have fully understood the particular, transaction so that his attestation may support the inference that he was a consenting party.
The question is really one of fact and should be determined with reference to the circumstances. See Sarkar Barnard & Co. v. Alakmanjari, AIR 1925 P. C. 89 and Bhagwan Singh v. Ujagar Singh AIR 1928 PC 20. In fact Ext. C vendee subsequently assigned the property covered by it to the 1st defendant brother of the 2nd defendant, under Ext. F dated 8-5-1115, referring also therein to Ext B and 2nd defendant was attestor once again. Still later under Ext. S sale dated 25-5-1115 the heirs of Munavari Sahib passed on their title in the rest of their Kandukrishi holding and lying adjacent, in favour of Kunjan Nadar and 2nd defendant was compelled to admit that possession followed the document. It is not questioned that if Padmanabha Panicker did obtain possession under Ext. B the bar of limitation under Article 142 does not arise. We therefore hold against the appellant that the suit is not barred under Article 142 of the Limitation Act.
5. On the question o bar under Article 47 of the Limitation Act, learned counsel for the respondents raised the preliminary objection that the plea could not be entertained for the first time in this court, On the merits he conceded that if the date of the plaint in the present suit alone is taken into consideration, the suit may be hit by the 3 years' rule under the Article. But he contended that Article will not apply because this was a suit on title and even assuming it did apply, the plaintiffs were entitled to exclude the period between 28-4-1121 and 1-7-11231 occupied by the prior suit O. S. 67 of 1121 filed by them, under Section 14 of the Limitation Act and if so the suit would not be barred. It is true that the 2nd defendant did not raise this question in the court below. But the 17th defendant has raised it though he did not press it. Anyhow being a question of law we allowed the matter to be canvassed.
6. Taking up now the applicability of Article 47 to the suit as here laid, the Article lays down that a suit by any person bound by an order respecting the possession of immovable property made under the Code of Criminal Procedure of 1898 to recover the property comprised in such order must bring a suit within 3 years of the date of the final order in the Criminal Court. Clearly the plaintiffs cannot enlarge the time by framing the suit as one for declaration. See Ram Sahi v. Benode Behari Ghosh, AIR 1923 All. 151.
7. The Calcutta High Court in Atale Sunarri v. Talib Hussain, AIR 1930 Cal 612 and Khaleque Newaz Khan v. Labibuddin Ahmed, AIR 1943 Cal 67, extended the principle to a case where the subject-matter of the claim was not the exclusive possession of the entire property covered by the order under Section 145, Criminal Procedure Code but joint possession of only a share of it and they held:
'A suit for partition which seeks for partition of property or to have a share in it, the title to which has already been extinguished by reason of no suit having been instituted to recover possession within three years of the order under Section 145, Criminal P.C., and by virtue of Article 145 of the Schedule and of Section 28 of the Act, is another name for a suit for recovery of possession and a mere device to evade the provisions of the Statute.'
There is no doubt the decision in Tukaram v. Hari, ILR 28 Bom 601 which held that :
'A plaintiff suing in the ordinary Courts on his title for the possession of land is not bound by reason of anything in Article 47, Schedule II, of the Limitation Act (XV of 1877), or Section 21 of the Mamlatdar's Courts Act (Bom Act III of 1876) contained to bring his suit within three years from the previous rejection of his plaint, by a Mamlatdar in a suit for the possession of that land.'
But that was because as the learned Judges observed, a suit on title is outside the Mamlatdar's jurisdiction and so a mere rejection of a plaint cannot be treated as an order binding the plaintiff in reference to that which is the cause of action in a suit on, title.
8. Reference may in this connection be made also to Janardhanan Nair v. Nanu, 1945 Trav LR 294, in which the question arose as to whether Article 35 of the Travancore Limitation Act corresponding to Article 47 (Indian) applied to cases where the party defeated in the Section 145 (Crl. P. C.) proceedings had no title at all at the time of the summary order and sued to recover possession on the strength of title acquired subsequent to the order. T.M. Krishnaswamy Iyer, C. J., delivering the leading judgment in the case held to the contrary and observed :
'But at the same time it must be equally conceded that anything the possession of which could have been sued for on the date of the order, assuming it to be wrong, must be held to have become lost to the person against whom the question of possession was decided by the Magistrate and to regain what he had failed to institute suit within, the period limited by Article 35.'
We therefore hold that Article 47 applies to this case notwithstanding its frame as one for declaration of title.
9. This leads us to the question whether the plaintiffs are entitled under Section 14 of the Limitation Act to claim exclusion of the period of pendency of the former suit O. S, 67 of 1121 in computing limitation for this suit. The three essentials required by the Section are (i) identity of the causes of action, (ii) good faith and due diligence of the plaintiff, and (iii) absence of jurisdiction or other cause of a like nature in the court which entertained the prior suit. The plaint in O. S. 67 of 1121 or the order of court dismissing it are not produced in this case.
But the averments in the plaint herein that the prior suit was based on the same cause of action as here and was dismissed for want of sanction of Government has not been denied. Basing himself on this, learned counsel for the appellant argues that though the first requisite as to identity of causes of action may be said to be satisfied, the two other requisites are still wanting. For according to him, good faith and due diligence cannot be posited when a preliminary condition and statutorily imposed for cognizance of suit, e. g. sanction of Government is not fulfilled and again the absence of jurisdiction on account of want of sanction is not peculiar to the court before which the prior suit was instituted.
The presence or absence of good faith and due diligence is however a question of fact and to the extent it was not canvassed in the court below, it is not open, in our opinion, to the 2nd defendant to raise it here. As to the argument regarding absence of jurisdiction, it is no doubt true that Section 14 of the Limitation Act cannot be interpreted in such a manner as to allow the exclusion of time spent in prosecuting a proceeding which the law does not allow any court to entertain.
But the courts have always given a liberal construction to the words 'other cause of a like nature' occurring in the section. So even where the plaintiff omitted to do a thing which was necessary to give jurisdiction to the court to entertain the suit, e. g. procuring the sanction of Government as here, the period of time taken for prosecuting the prior suit can be excluded, provided of course that the plain tiff has not been negligent in prosecuting the prior suit. See Sankara Pillai v. Sumathy Amma, 1947 Trav. LR 568. We therefore hold that there is no bar of limitation for the suit under Article 47 of the Limitation Act as well.
10. It follows therefore that there is no merit: in this appeal. It is therefore dismissed with costs.
11. Taking up the plaintiffs' objection memorandum the first complaint is about the total disallowance of mesne profits. The court below disallowed mesne profits on ground of want of satisfactory evidence. It is pointed out however, that the 2nd defendant admitted in paragraph 18 of his written statement that the rate of mesne profits was not more than 700 fanams in contrast to the plaint claim of 1460 fanams per year. There can be no objection to accepting this rate of 700 fanams. We therefore grant the plaintiffs mesne profits as against the 2nd defendant at this rate from the date the properties were given up by the Receiver in S. C. 16 of 1118 of the Neyyattinkara First Class Magistrate's Court and subject to Order 20, Rule 12 C. P. C.
12. The next point raised is that the decree as drawn up by the court below does not incorporate the finding on Issue 10 concerning the plaintiffs' right to the moneys collected by the Receiver in S. C. 16 of 1118 and deposited in court. This complaint is justified. We direct the decree of this court will clarify this point.
13. The objection memorandum of the plaintiffs is disposed of as above. There will however be no order for costs on it.