Bankey Lal v. Dharam Deo Lal — 1978 DIGILAW 885 (ALL)

JUDGMENT V. K. Mehrotra, J. This is an appeal by the plaintiffs who had succeeded in the trial court. The suit related to three plots, namely, plot nos. 51, 139 and 202 situate in village Reoti, Pargana Kharid, District Ballia. The lower appellate court dismissed the suit as regards plot no. 51 but upheld the decree of the trial court in respect of the remaining two plots. The defendants to the suit have filed a crossobjection in this court in respect of those plots. The plaintiffs' case was that there were proceedings under Section 145, Cr. P. C., regarding the aforesaid plots which were decided on May 2, 1949 by the Magistrate by his order, which is ext. A12 on the record of the suit. Bina Lal, brother of the plaintiffs, who is defendant no. 13 in the suit giving rise to the present appeal, was alone a party to the proceedings under section 145, Cr. P. C. The contesting defendants were also party thereto. The learned Magistrate by his order dated May 2, 1949 (Ext. A12) found Bina Lal to be in possession over plot nos. 139 and 202. As far as plot no. 51 is concerned, the learned Magistrate found the present defendantrespondents to be in possession and directed the release of the said plot in their favour. The plaintiffappellants then instituted the suit giving rise to the present appeal being suit no. 750 of 1954 for a declaration that they were bhumidhars in possession of the three plots in dispute comprising in the holding enumerated in list 1 to the plaint. In the alternative, they also sought a relief for being put into possession of the plots in case it was found that they were not in possession. Amongst others, the defence taken by the defendantrespondents was that the suit for possession regarding plot no. 51 was barred by limitation. This defence was founded upon the plea that, inasmuch as Bina Lal, defendant no. 13, who is admittedly the brother of the two plaintiffappellants, was a party to the proceedings under section 145, Cr. P. C., the plaintiffs would be bound by the result of these proceedings and would, in any case, be deemed to have knowledge of those proceedings so that the suit ought to have been filed within a period of three years from the date of the order under Section 145, Cr. P. C., the plaintiffs would be bound by the result of these proceedings and would, in any case, be deemed to have knowledge of those proceedings so that the suit ought to have been filed within a period of three years from the date of the order under Section 145, Cr. P. C. (May 2, 1949) as provided by Art. 47 of the Schedule to the Indian Limitation Act, 1908. Since the suit was filed in the year 1954, the plaintiffs could not seek relief for possession. The trial court negatived the plea of limitation raised before it relying upon the decisions in the cases of Ram Lal v. Thakur Din and others (AIR 1921 Oudh 191) and Sankatha Sukul v. Smt. Govindi Devi (AIR 1950 Alld. 693). It took the view that the findings recorded under Section 145 proceedings could only bind either the parties to the, proceedings or those claiming under such party. It, therefore, concluded that, inasmuch as, the two plaintiffs were neither party to the proceedings under Section 145, Cr. P. C., nor were they claiming through Bina Lal, their brother, a party to those proceedings, the suit brought by them In the year 1954 could not be held to be barred by limitation under Art. 47 of the Schedule to the Indian Limitation Act, 1908. The lower appellate court, as noticed earlier, reversed the decree of the trial court as regards plot no. 51. According to it, the plaintiffs who were brothers of Bina Lal would be deemed to have knowledge of the proceedings under Section 145, Cr. P. C., and had, therefore, to bring the suit within the prescribed period of limitation for recovery of possession at least from May 2, 1949 when the proceedings under Section 145, Cr. P. C., were decided. The period of three years under Art. 47 of the Schedule to the Indian Limitation Act, 1908, according to the lower appellate court, would run from" the aforesaid date. It also took the view that, in any case, the suit for recovery of possession would be barred under Section 183 of the U. P. Tenancy Act and no decree for possession could, therefore, be passed in favour of the plaintiffs in respect of plot no. 51. It, however, upheld the decree in favour of the plaintiffs as regards plot nos. 139 and 202. 51. It, however, upheld the decree in favour of the plaintiffs as regards plot nos. 139 and 202. On a consideration of the evidence on record, it concluded that the plaintiffs were not in possession over plot no. 51. The trial court as well as the lower appellate court have both found the plaintiffs and defendant no. 13 bhumidhars of all the three plots. The lower appellate court has, as seen above, dismissed the suit in respect of plot no. 51 on the ground that for recovery of possession, it was barred by limitation. The submission that the suit for recovery of possession regarding plot no. 51 was barred under Article 47 of the Schedule to the Indian Limitation Act, 1908, because of the order dated May 2, 1949, is not sound. A proceeding under Section 145, Cr. P. C., binds a party to it or a person claiming through such a party. This view has been taken by the Oudh Chief Court in the case of Ram Lal v. Thakur and others (supra) as also by this court in the case of Sankatha Sukul v. Smt. Govindi Devi (supra). There is no good reason to differ from the view taken in these two cases. The reasons which were accepted by Madras High Court in the case of Venkatazomaraju and others v. Alluri Verahalaraju and others (AIR 1930 Mad. 48), relied upon by the lower appellate court were twofold, firstly, that the undivided sons who were not parties to it would be bound by any order passed in a proceeding under Section 145, Cr. P. C., to which their father was a party. The sons would be deemed to have notice of the proceedings. Secondly, that the properties in question had been acquired by the father as manager of the family on behalf also of the sons and it was, therefore, reasonable that such members of the family should be bound by those proceedings. A careful perusal of the case reveals that the basic reason which prevailed with the learned Judges in holding the undivided sons as well to be bound by an order passed against their father in proceedings under Section 145, Cr. P. C., was that the order would apply to a person bound by such order or anyone claiming under the person so bound. P. C., was that the order would apply to a person bound by such order or anyone claiming under the person so bound. Admittedly, the properties had been acquired by the father as Manager of the family on behalf of his sons as well. It was, in this circumstance, that the sons who were also held to be bound by the order. Likewise, in the case of Pitambar Chaudhary v. Ashoke Chaudhary ( AIR 1951 Pat. 325 ), the learned Judges appear to have accepted the principle that the entire family represented by him would be bound by an order made in a proceeding under Section 145, Cr. P. C., in case the leading member o' the family was a party to the said proceeding. The judgment does not contain any discussion or reasons which led to the aforesaid observation. In any case, even according to this judgment the parties to the proceedings under Section 145, Cr. P. C., must be such as may be treated to represent the entire family before such family may be said to be bound by the decision of the criminal court in those proceedings. In the instant case, however, there is no finding that defendant no. 13, who was a party to the proceedings under Section 145, Cr. P. C., was representing the plaintiffs as well therein. Once it is held that the present plaintiffs were not bound by the orders passed in the proceedings under Section 145, Cr. P. C., to which they were not parties, the question of the suit being barred by Art. 47 of the Schedule to the Indian Limitation Act, 1908, with reference to the date of the order, would not arise. Apart from this, the fact that at the relevant time, a period of limitation different from that prescribed in Art. 47 of the Indian Limitation Act, 1908, had been prescribed by the U. P. Tenancy Act in Group 'B' of Schedule IV for bringing about a suit for recovery of possession in circumstances covered either by Section 180 or Section 183 of the said Act, would be a further reason; to exclude the applicability of Art. 47 of the Act to the case. Section 29 (2) of the Indian Limitation Act, 1908, leads to this position. The case of Ram Chandra Singh v. Board of Revenue and others (1963 Alld. Section 29 (2) of the Indian Limitation Act, 1908, leads to this position. The case of Ram Chandra Singh v. Board of Revenue and others (1963 Alld. Weekly Reportds 89,), is an authority for the proposition that in a case like the present where a limitation for recovery of possession different from the one prescribed in the Indian Limitation Act, is provided, the provision of Art. 47 of the Schedule to the Indian Limitation Act would be inapplicable. The question, that still remains to be decided is as to whether the suit of the plaintiffs for recovery of possession over plot no. 51 is within the limitation or not. Learned counsel for the contesting respondents has urged that even on the assumption that Art. 47 of the Schedule to the Indian Limitation Act was not applicable to the case, the suit would still be barred by limitation, inasmuch, as, it would be a suit covered by Section 183 of the U. P. Tenancy Act, 1939, for which also the period of limitation had expired before the coming into force of U. P. Act No. 1 of 1951. In fact, this was one of the reasons which found favour with the lower appellate court as well for holding that the suit in respect of plot no. 51 was barred by limitation. Learned counsel for the appellants has, however, on the contrary, urged that section 183 will not be applicable to the present case for under that provision a suit could only be brought in case the plaintiffs had been dispossessed of the entire body of land holders and not by some of them. Besides, according to him, before holding that a suit would be barred by limitation under the said provision, it would further have to be found that as to what precisely is the date on which the wrongful dispossession of the plaintiffs had taken place when the plaintiffs, who were tenants, were prevented from obtaining possession over the plots. According to him, there is nothing on record to establish the said date. As far as the first objection of the learned counsel for the appellants is concerned, it is clear that the contesting respondents were the entire body of the landholders. The suit of the plaintiffs, therefore, would not be outside the purview of Section 183 of the U. P. Tenancy Act on that ground. As far as the first objection of the learned counsel for the appellants is concerned, it is clear that the contesting respondents were the entire body of the landholders. The suit of the plaintiffs, therefore, would not be outside the purview of Section 183 of the U. P. Tenancy Act on that ground. The lower appellate court has in effect clearly found that it was the contesting defendantrespondents who were the land holders qua the plaintiffs, it is, however, the next question which requires further investigation as to facts. From the evidence on record it is not clear as to what was the date on which the defendants either ejected the two plaintiffs from the plots in question or prevented them from obtaining possession over the plots in dispute. It Is true that under the order dated May 2, 1949 defendant no. 13 was prohibited from disturbing the possession of the contesting defendantsrespondents. However, the said fact is not determinative of the question in relation to the present plaintiffappellants. It is necessary to find, as a fact, as to who was the date when the wrongfull dispossession of the plaintiffs from the plots in question took place. These plaintiffs are admittedly bhumidhars of the plots and before their suit for recovery of possession is dismissed on the ground of limitation, it would be necessary to find the precise date from which the limitation would start running against them within the meaning of section 183 of the U. P. Tenancy Act. The determination of the question may require further evidence to be led by the parties. Under these circumstances, the case deserves to be remanded to the lower appellate court. In the result the appeal succeeds and is allowed. The judgment of the lower appellate court is set aside and the case is remanded back to it for determining the question as to what was the date on which the plaintiffs were wrongfully dispossessed from the plots in question. For the purpose, it would be open to the lower appellate court, if it considers necessary to take such further evidence as it finds necessary in the ends of justice. Coming now to the crossobjection filed by the defendantrespondents, it is clear from the findings of the two courts below that the plaintiffs were bhumidhars of plot nos. For the purpose, it would be open to the lower appellate court, if it considers necessary to take such further evidence as it finds necessary in the ends of justice. Coming now to the crossobjection filed by the defendantrespondents, it is clear from the findings of the two courts below that the plaintiffs were bhumidhars of plot nos. 139 and 202 and that they were in possession, which fact was also found in the proceedings under section 145, Cr. P. C. No case for interference with the decree of the courts below in respect of these plots is called for. The crossobjection thus fails and is dismissed. In the circumstances, I direct the parties to bear their own costs in this appeal.