1. This is an appeal by the plaintiffs in a suit for recovery of khas possession of lands described in the third schedule to the plaint, in the alternative for possession of an undivided two-thirds share of the lands mentioned in the first schedule, on declaration of their title to the same. The Court of first instance passed a decree in favour of the plaintiffs, declaring the title of an undivided two-thirds share of the lands mentioned in the first schedule, and describing that the plaintiffs were to have joint khas possession of the same to the extent of the said share. On appeal by the defendants, the decision and decree passed by the trial Court in favour of the plaintiffs were reversed, and it was held that the plaintiffs claim in respect of 3.51 acres of the lands in Schedule I of the plaint should be dismissed; in respect of the rest of the lands in that schedule, while the plaintiffs' title to two-thirds share should be declared, their claim for joint possession must be dismissed. The plaintiffs have appealed to this Court, and the decision of the Court of Appeal below was assailed on the points which we proceed to consider in the order in which they were urged before us.
2. It was in the first place argued on behalf of the plaintiffs-appellants that the question of limitation has been erroneously decided by the Court of Appeal below, and the decision dismissing the plaintiff's claim in regard to 3.51 acres of land was unjustifiable. There was a proceeding in respect of this area of land under Section 145 of the Code of Criminal Procedure, as between co-sharers of the properly, the plaintiff and the defendants, and there was an order passed by the Criminal Court in favour of the defendants. The result of the order was that the defendants as co-sharers were held to be the parties whose possession was to be maintained by the Criminal Court. The suit in which the appeal has arisen may upon the findings arrived at by the Court of Appeal below, be taken to have been instituted in the proper Court on payment of proper court-fees after the expiry of the period of three years as mentioned in Article 47 of the first schedule of the Indian Limitation Act; but there can be no doubt that the provisions of Article 47 are applicable to a suit for possession of an undivided share of the property in respect of the whole of which there was a final order under Section 145 of the Code of Criminal Procedure. It is not contemplated by the provision contained in Article 47 that the title of the co-sharer of any joint property must be held to be extinguished, and that there could not be any claim for joint possession or for partition, in view of an order passed by a Criminal Court not having been challenged by a suit by the co-sharer. The co-sharer's right to get exclusive possession was barred in view of the expiry of the period prescribed by Article 47 of the first schedule of the Indian Limitation Act; but his title could not be held to have been extinguished so as to disentitle him to get a decree for partition of joint property; see in this connection the decision of this Court in Atab Sundari v. Talib Hussain Mia : AIR1930Cal612 , and the cases referred in that decision. In the above view of the case before us, the decision of the Court of Appeal below dismissing the plaintiffs' claim in regard to 3.51 acres of land comprised in the first schedule to the plaint on the ground that their title to the same had been extinguished by the operation of the rule of limitation cannot be upheld.
3. It was next urged in support of the appeal that the lower Appellate Court was wrong in dismissing the plaintiffs claim for joint possession. The decision complained of rests on the basis that the facts and the circumstances of the case before the Court did not imply that there was no ouster by the co-sharer defendants in the suit as contemplated by law, as could entitle the plaintiffs to a decree for joint possession as claimed by them. The view taken by the trial Court on this part of the case, that there having been no partition of the lands, and the plaintiffs were entitled to maintain the present suit for recovery of joint possession on declaration of title; further that the plaintiffs did not claim exclusive possession, and the suit for joint possession was, therefore, maintainable, without a prayer for partition, was not considered by the lower Appellate Court. The undisputed position indicated by the proceedings under Section 145 of the Code of Criminal Procedure on which the defendants took their stand, and pleaded limitation against the plaintiffs, also lends support to the case that there was such ouster on the part of the co-sharer defendants which entitled the plaintiffs to pray for joint possession, without praying for partition. The dismissal of the plaintiffs' claim for joint possession in regard to the lands in the first schedule, with the exception of 3.51 acres of land as mentioned in the judgment of the Court of Appeal below, cannot, in our judgment, be supported.
4. The result of the conclusion we have arrived at as set forth above, is that the appeal is allowed. The plaintiffs' title in respect of 3.51 acres of land in Schedule I of the plaint must be declared: their claim to joint khas possession of the same cannot however, be allowed. The decision of the lower Appellate Court declaring the title of the plaintiffs in respect of the rest of the lands in that schedule is affirmed; and the plaintiffs will have joint khas possession of the same to the extent of their share. A self-contained decree will be drawn up in this Court incorporating our decision.
5. The appellants in this Court are entitled to their costs in the litigation, including their costs in this appeal.