1. The appeal and cross-objection have arisen out of a suit for declaration of title and recovery of khas possession.
2. The plaintiff's claim shortly put was as follows : There were two brothers Wahedulla and Basiruddi each owning, an eight annas share in the properties. By an amicable arrangement Basiruddi alone possessed the properties and sold them to the plaintiffs in 1320 B.S. In 1321 B.S. the plaintiff grew paddy on the lands but was not allowed to gather the crops and was dispossessed by the defendants acting in collusion with each other. He then instituted this suit on 15th May 1924.
3. Defendant is the son of Wahedulla and defendant 2 is the purchaser of the properties from defendant 1. They claimed that defendant 1 had received the properties as gift from Wahedulla and Basiruddi. One of the defences taken was the plea of limitation, it being urged that there was an order under Section 145, Criminal P.C., on 11th February 1915 in favour of defendant 1 in respect of the properties and so the suit is barred in view of the provisions of Article 47 of the Schedule to the Limitation Act which provides for a limitation for three years for a suit to recover possession of such property.
4. The plaintiff subsequently amended his claim restricting it to a 11 annas 2 gandas 2 karas 2 krantis which Basiruddi obtained by succession after Wahedulla's death.
5. The Courts below have upheld the plea of limitation and have given the plaintiff a decree only for an 8 gandas 3 karas 2 krantis share to which the plaintiff acquired title after the order under Section 145, Criminal P.C.
6. The question involved in the appeal is the question of limitation. It has been urged that Article 47 has no application to the suit as what forms the subject-matter of the claim is not the exclusive possession of the entire property covered by the order 'Under Section 145, Criminal P.C., but joint possession of only a share of it. The question, we may say at once, is not one altogether free from difficulty. The case relied on most strongly on behalf of the plaintiff-appellant is that of Parashram Jethmal v. Bakhma  15 Bom. 299. The facts of the case were as follows : In 1864 A sued his cosharer B in the Mamalatdar's Court for possession of certain land and obtained a decree. In 1874 B got possession of the land by inducing the tenants to attorn to him. In 1880 A conveyed the land to G who in 1886 sued B to obtain possession. Two propositions were laid down in the decision of that case. One was that on the expiry of three years (under Clause 7, Section 1, Lim. Act 14, 1859) B could not have sued to assert his title to the land comprised in the Mamlatidar's order but nevertheless B's title to the land was not thereby extinguished. As regards this proposition, as is well known, the view of this Court has not been quite the same as that of the Bombay High Court, so far as the effect of Act 14, 1859, is concerned; but with this we are not concerned in the present case. The other proposition was
that a suit for the partition of property comprised in the Mamlatdar's order is not properly designated as a suit to recover such property; and whether that property is the only one of which a partition is claimed, or whether it is only one of such properties is not a material question in this connexion.
7. This case is a clear authority in the appellants favour and the question before us is whether we should follow it. This decision purported to approve of two earlier decisions of the same Court Bhaguji v. Aniaba  5 Bom. 25 and Shivram v. Narayan  5 Bom. 27. In the first of these cases it is not clear what the exact nature of the order of the Mamlatdar was in the second case it was an order rejecting the plaintiff's claim to separate possession on the ground that there was a partition. What however is clear is that Westropp, C.J., who was one of the Judges in both the cases observed roundly in the second case that:
following the decision in Bhaguji v. Aniaba  5 Bom. 25 we hold that Article 46, Schedule 2, Act 9, 1871 (corresponding to Article 47 of the present Limitation Act) is not applicable to a suit for partition.
8. The decision in Jethmal v. Rakhma  15 Bom. 299 is therefore strictly supported by these earlier two decisions. The observations as regards the property being the sole one or one of several was necessitated by an argument which sought to distinguish the earlier decisions from the one then before the Court, but these observations need not detain us. The principle enunciated in these cases, and in the earliest of these cases specifically came in a later case before the Bombay High Court, namely that of Bhimappa v. Irappa  26 Bom. 146 in which Article 11, Lim. Act, 1877, fell to be construed. Chandravarkar, J., while he was able to distinguish the case before him as one to which the principle should not apply, spoke approvingly of it in these words:
But a suit for partition, in which the property comprised in the Mamlatdar's decree is brought into the hotchpot, is not a suit for the recovery of that property. It is a suit for the recovery of such share as the plaintiff may get on partition. The mere fact that the property comprised in the Mamlatdar's decree is included in the subsequent suit for partition does not make the properties in both identical. In the eye of the law the property of which ex-elusive possession was sought in the Mamlatdar's Court is different from the property of which a share is claimed on the ground of joint title, and it is only an accident that the plaintiff in the partition suit may get the former property allotted to his share.
9. The learned Judge evidently was not shown the decision in Jethmal v. Bakhma  15 Bom. 299 in which Telang, J., had already held that the question whether it was the sole property or only one of a number was of no importance. Be that as it may, the authorities to which WQ have referred are clear and it is no use trying to distinguish them or explaining them with words that are not to be found therein.
10. We are however of opinion that to hold that an undivided share of the property is for the purposes of the article to be regarded as a different property however catching the argument may be will lead to immense complications to which similar considerations not only in the construction of this but also of other articles of the Act would apply. We are also of opinion that 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 47 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. The principle that the greater includes the less has been adopted in construing articles pari materia with Article 47, e. g., Article 11-A : Ganpat Rai v. Hussaini Began A.I.R. 1921 All. 92. We are accordingly unable to follow the proposition enunciated in the Bombay cases cited above.
11. As regards the cross-objection we are not impressed with the argument that Section 43, T.P. Act, has no application.
12. We affirm the decision of the Courts below and dismiss the appeal and the cross-objection but with no order as to costs.