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2008 DIGILAW 725 (GAU)

Kashi Nath Gogoi v. Thambahadur Dorjee

2008-09-24

BROJENDRA PRASAD KATAKEY

body2008
JUDGMENT B.P. Katakey, J. 1. This appeal by the plaintiffs in Title Suit No. 146/91 is against the judgment dated 10.9.1999 and decree dated 29.9.1999 passed by the learned Civil Judge (Senior Division), Kamrup, Guwahati in Title Appeal No. 37/97 dismissing the appeal and upholding the judgment dated 31.5.1997 and decree dated 12.7.1997 drawn by the learned Civil Judge (Junior Division) No. 1, Kamrup, Guwahati in Title Suit No. 146/91 dismissing the suit. 2. The appellant Nos. 1 and 2 and also the predecessor in interest of the appellant No. 3(a) to 3(d) filed Title Suit No. 146/91 in the Court of the learned Civil Judge (Junior Division) No. 1 (Now Munsiff), Guwahati praying for declaration of right, title, interest and recovery of Khas possession in respect of land measuring 4 Kathas 17-3/4 Lechas covered by Dag No. 101(new)/25 (old) of F.S. Grant No. 1 (new)/27 (old) of village Baruabari Mouza Panbari in the district of Kamrup, Assam, more fully described in Schedule-B to the plaint, contending inter alia, that the plaintiff Nos. 1 and 2 purchased a plot of land measuring 1 Bigha 4 Kathas 3-1/2 Lechas of land in Dag No. 2(old)/99 (new), 25(old)/101 (new) of the said F.S. Grant by a registered sale deed No. 718 of 1979 on 24.1.1979 for a valuable consideration, the possession of which was delivered by the vendor to them. It has further been contended that the plaintiffs thereafter got their names mutated in respect of the said land and constructed ordinary thatched house. It has further been contended that the plaintiffs thereafter got their names mutated in respect of the said land and constructed ordinary thatched house. The respondent/defendant No. 1, who is an employee of the Defence Air Force Department posted at Digaru near Sonapur, without having any right, title and interest over the land, along with some other associates with a move to grab the 'A' Schedule land measuring 1 Bigha 4 Kathas 3-1/3 Lechas created disturbance to the peaceful possession for which a proceeding under Section 107, Cr PC was initiated and during pendency of which on 4.9.1979 the respondent/defendant No. 1 trespassed into the 'B' Schedule land, which is a part of the 'A' Schedule land and dispossessed the plaintiffs from the land for which the plaintiff No. 2 brought a proceeding under Section 145, Cr PC before the Executive Magistrate as first party, in which the land ('B' Schedule land) with two small thatched houses were attached by the order of the learned Magistrate, which proceeding, however, was disposed of on 19.11.1990 by declaring possession of the respondent/defendant No, 1. The plaintiffs thereafter brought a suit for declaration of right, title, interest and for recovery of Khas possession in respect of the 'B' Schedule land. The respondent/defendant No. 1 contested the suit by filing written statement, amongst others, raising the plea of maintainability of the suit for non-joinder and mis-joinder of parties and also contending that he has been possessing the land in question since 1970 continuously against its' original owner by constructing dwelling house, planting valuable trees and during his long possession nobody came to the land to claim right, title and interest and he is in peaceful possession of the same. The defendant has, therefore, taken the plea of adverse possession and also contended that the suit is barred by limitation having not brought within 12 years from such adverse possession. 3. The learned trial Court on the basis of the pleadings of the parties, framed the following issues for determination: (1) Whether the plaintiff has right, title and interest over the suit land? (2) Whether the suit is barred by limitation? (3) Whether the suit is barred by adverse possession of the defendant? (4) Whether the suit is bad for non-joinder of necessary parties? (5) To what relief if any the plaintiff may be entitled under law and equity? 4. (2) Whether the suit is barred by limitation? (3) Whether the suit is barred by adverse possession of the defendant? (4) Whether the suit is bad for non-joinder of necessary parties? (5) To what relief if any the plaintiff may be entitled under law and equity? 4. The learned Munsiff upon appreciation of evidences on record, both oral and documentary, dismissed the suit filed by the plaintiff vide judgment dated 31.5.1997 by holding that the respondent/defendant No. 1 could prove adverse possession and though the plaintiffs have right, title and interest over the suit land, same having not brought within 12 years from the date when the possession of the respondent/defendant No. 1 became adverse, as required under Article 65 of the Limitation Act, the suit is barred by limitation. 5. Being aggrieved, the plaintiff/appellants preferred Title Appeal No. 37/97, which has, however, been dismissed vide judgment dated 10.9.1999 passed by the learned first Appellate Court affirming the judgment and decree passed by the learned trial Court by upholding the findings recorded by the learned Court below, hence the present appeal. 6. By order dated 15.3.2000, the present appeal has been admitted for hearing on the following substantial question of law: Whether the suit is barred by limitation, as held by the Court below? 7. While hearing this appeal, this Court upon perusal of the judgments and decrees passed by the learned Courts below and on hearing the learned Counsel for the parties, being of the opinion that another substantial question of law is required to be formulated, same having arisen, vide order dated 2.9.2008 also framed the following substantial question of law: Whether the period for which the suit land was under attachment during the pendency of the proceeding under Section 145, Cr PC, is to be reckoned while calculating the period of 12 years for the purpose of Article 65 of the Limitation Act and also for the purpose of adverse possession? 8. Learned Counsel for both parties agreed to continue their arguments on the aforesaid substantial question along with the earlier formulated one. Accordingly, hearing of the appeal continued, which concluded on 4.9.2008. 9. Heard Mr. C.K. Sarma Barua, learned senior counsel appearing for the appellants and Mr. S. Medhi, learned Counsel appearing for the respondent No. 1/defendant No. 1. None appears for the proforma respondents despite service of notice. Accordingly, hearing of the appeal continued, which concluded on 4.9.2008. 9. Heard Mr. C.K. Sarma Barua, learned senior counsel appearing for the appellants and Mr. S. Medhi, learned Counsel appearing for the respondent No. 1/defendant No. 1. None appears for the proforma respondents despite service of notice. The name of the proforma respondent No. 2 was, however, struck off from the list of proforma respondents vide order dated 5.12.2001. 10. Mr. Sarma Barua, learned senior counsel appearing for the appellants has submitted that since the plaintiffs' claim for possession of the Schedule 'B' land is based on title and the title of the plaintiff having been declared by both the Courts below on the basis of the purchase, to non-suit the plaintiffs on the ground of limitation, the defendant must prove when his possession became adverse to the plaintiffs as required under Article 65 of the Limitation Act, 1963. In the instant case, according to Mr. Sarma Barua, it is evident from the Ext.'A' i.e. the record of the 145, Cr PC proceeding (Case No. 710/79) that the land was attached under Section 146, Cr PC by the learned Executive Magistrate vide order dated 24.9.1979 and the suit land was released from attachment on 19.11.1990 i.e. the date when the possession of the respondent/defendant No. 1 was declared by the learned Executive Magistrate. Therefore, according to Mr. Sarma Barua, the said period for which the land was under attachment, cannot be taken into consideration for the purpose of calculating 12 years and also for the purpose of adverse possession, the Court being the custodia legis for the said period. Mr. Sarma Barua submits that the respondent/defendant No. 1 having not challenged the findings recorded by the learned Courts below relating to right, title and interest of the plaintiffs over the 'B' Schedule land, in view of the aforesaid position that the period of attachment cannot be taken into consideration for the purpose of calculating 12 years' period, the learned Courts below committed error of law in dismissing the suit of the plaintiffs on the ground of limitation without taking into consideration the legal effect of the period for which the land was under attachment. Mr. Sarma Barua, in support of his contention, has placed reliance on the following decisions: (1) AIR 1961 Pat 425 ; (Dukhan Ram and Ors. v. Ram Nanda Singh and Ors.). Mr. Sarma Barua, in support of his contention, has placed reliance on the following decisions: (1) AIR 1961 Pat 425 ; (Dukhan Ram and Ors. v. Ram Nanda Singh and Ors.). (2) AIR 1964 AP 109 ; (Smt. Pentapati Venkatratnam and Ors. v. Karri Venkatanarasaymma and Ors.). (3) AIR 1967 Ori 183; (Narasingha Rou v. Sricharan Panda). 11. Placing reliance on the decision of the Supreme Court in (2004) 1 SCC 438 (Shanti Kumar Panda v. Shakuntata Devi), it has further been submitted by Mr. Sarma Barua that as an attached property is held custodia legis by the Magistrate for and on behalf of the party who would succeed from the competent Court in establishing his right with regard to the entitlement to possess the property, the learned Courts below committed error of law in dismissing the suit of the plaintiffs on the ground of limitation by taking into account the period for which land was under attachment, even though the suit was filed on 3.7.1991 i.e. within one year from the date when the learned Executive Magistrate declared possession of the respondent/defendant No. l over the suit land under Section 145, Cr PC i.e. on 19.11.1990. 12. Mr. Medhi, the learned Counsel appearing for the respondent No. 1/defendant No. 1 on the other hand, contended that the plaintiffs neither before the trial Court nor in the first Appellate Court raised such plea that the suit land being under attachment under Section 146, Cr PC, the period under which the order of attachment was in force cannot be taken into consideration for the purpose of calculating the period of 12 years. The said question being mixed question of law and facts, cannot be allowed to be raised in second appeal. Mr. Medhi in support of his contention that the appellant in the second appeal cannot be allowed to raise a new plea, has placed reliance on the decision of the Apex Court in 1997 (2) GLT 12 (Panchugopal Barua and Ors. v. Umesh Chandra Goswami and Ors.) and AIR 1999 SC 3248 (Ram Kumar Agarwal v. Thawar Das). 13. Mr. Mr. Medhi in support of his contention that the appellant in the second appeal cannot be allowed to raise a new plea, has placed reliance on the decision of the Apex Court in 1997 (2) GLT 12 (Panchugopal Barua and Ors. v. Umesh Chandra Goswami and Ors.) and AIR 1999 SC 3248 (Ram Kumar Agarwal v. Thawar Das). 13. Mr. Medhi has further submitted that in any case the plaintiffs did not prove either the attachment of the land and the date on which the said attachment order was made or the date till which the attachment continued or whether the land was actually attached though there was an order of attachment passed by the learned Magistrate in the proceeding under Section 145, Cr PC. According to Mr. Medhi, the land is said to be under custody of the Court when the order of attachment is passed provided it is proved to the satisfaction of the Court by adducing evidence that the land was in fact attached and the parties were prohibited from entering into the land by the learned Magistrate. Mere passing of the order of attachment, according to the learned Counsel, is not enough to constitute custodia legis. Mr. Medhi has further submitted that in any case such attachment has to be legal and valid attachment under the law, for the purpose of holding that the Court held possession of the land as custodia legis by virtue of such order of attachment passed. In the instant case, according to the learned Counsel, the attachment order itself is not valid, there being no reason given as required under Section 146, which aspect of the matter was not gone into by the learned Courts below having not raised such plea by the plaintiffs in either of the Courts that the period for which the land was under attachment is to be excluded in calculating 12 years' period for the purpose of Article65 of the Limitation Act as well as for the purpose of adverse possession. Mr. Medhi to buttress his argument has placed reliance on the following decisions: (1) AIR 1960 Ass 109 (Atar Khan v. The State). (2) AIR 1969 Raj 82 (Sajjan Singh Bhairun Singh v. Sajjan Singh Jagannath Singh and Anr.). (3) AIR 1973 Pat 444 (Kailash and Ors. v. Mahabir Pandey). 14. Mr. Mr. Medhi to buttress his argument has placed reliance on the following decisions: (1) AIR 1960 Ass 109 (Atar Khan v. The State). (2) AIR 1969 Raj 82 (Sajjan Singh Bhairun Singh v. Sajjan Singh Jagannath Singh and Anr.). (3) AIR 1973 Pat 444 (Kailash and Ors. v. Mahabir Pandey). 14. Mr. Medhi referring to the final order dated 19.11.1990 passed by the learned Executive Magistrate in the proceeding initiated under Section 145, Cr PC has submitted that a finding of fact has been recorded by the learned Magistrate that the present respondent No. 1/defendant No. 1 is in possession of the disputed land on that date, therefore, it is apparent that the respondent No. 1/defendant No. 1 continued to be in possession of the land when the land was under attachment, there being no prohibitory orders passed by the learned Magistrate prohibiting any of the parties from entering into the land. Mr. Medhi has submitted that whether there is in fact a valid attachment and whether there was any prohibitory order restraining the respondent No. 1/defendant No. 1 from entering into the land during such period of attachment, is a question of fact, which having not been raised by the plaintiffs before either of the Courts below, cannot be raised in the second appeal. Relating to declaration of right, title and interest of the appellants over the suit land, Mr. Medhi has submitted that it is evident from the judgment that the first Appellate Court is not sure about the title of the appellants' vendor over the suit land and there being no finding recorded relating to such vendor's title, no decree declaring right, title and interest of the appellants could be passed. 15. Returning the argument of the learned Counsel for the respondent No. 1/defendant No. 1, it has been submitted by Mr. Sarma Barua, learned senior counsel appearing for the appellants that the records of the proceeding under Section 145, Cr PC having been admitted into evidence by marking the same as Exhibit-A at the instance of the respondent No. 1, this Court can look into the materials available in the said 145, Cr PC proceeding for the purpose of ascertaining as to whether the suit land was in fact attached and the period thereof. According to the learned Counsel the fact that the land was actually under attachment and the parties were prohibited from entering into the suit land is apparent from the orders passed by the learned Executive Magistrate relating to the sale of the products of cultivation made over the land. Therefore, according to Mr. Sarma Barua, it is evident from the said record that the land was actually attached and the parties were prohibited from entering into the suit land and the said period of attachment cannot be counted for the purpose of Article 65 of the Limitation Act as well as adverse possession, the said property being held custodia legis by the Magistrate for the said period. 16. Regarding the submission of Mr. Medhi, learned Counsel for the respondent No. 1/defendant No. l relating to right, title and interest of the appellants, it has been submitted by Mr. Sarma Barua that the appellants having proved the sale-deed by which Bidyabati Devi's (Vendor of the appellants) husband Purnendu Mukharjee purchased the land from the land owner Sonapur Tea Company being Ext.-7 and also the factum of inheritance by Bidyabati Devi after the death of her husband as well as the sale-deed executed by Bidyabati Devi in favour of the plaintiffs No. 1 and 3 vide Ext-1, which were admitted into evidence without being any objection from the respondent No. 1/defendant No. 1, they cannot now contend that the plaintiffs have no right, title and interest over the suit land. It has further been submitted that such findings of facts recorded by the learned Courts below having not been challenged by the respondent No. 1/defendant No. 1 either by filing any appeal against such finding or by filing cross-objection in the present appeal, such findings cannot be re-opened now same having attained its finality. 17. I have considered the submissions of learned Counsel for the parties and perused the materials available on record including the judgments and decrees passed by the learned Courts below. 18. The appellants proved two sale-deeds, one executed by the Sonapur Tea Company, owner of the land, which includes suit land, in favour of Purnendu Mukharjee, the husband of Bidyabati Devi by making the said sale-deed as Ext-7 and the other being Ext-1 executed by Bidyabati Devi in favour of the plaintiff Nos. 1 and 3 by adducing the evidence. 18. The appellants proved two sale-deeds, one executed by the Sonapur Tea Company, owner of the land, which includes suit land, in favour of Purnendu Mukharjee, the husband of Bidyabati Devi by making the said sale-deed as Ext-7 and the other being Ext-1 executed by Bidyabati Devi in favour of the plaintiff Nos. 1 and 3 by adducing the evidence. The appellants also proved the factum of death of Purnendu Mukharjee and inheritance of the entire property by his widow Bidyabati Devi. The respondent No. 1/defendant No. 1 never raised any objection in marking the said two registered sale-deeds in evidence. The appellants also could prove by adducing cogent evidence the contents of such documents being Ext-1 and Ext-7. The learned Courts below have recorded findings that by virtue of such sale-deeds the appellants derived right, title and interest over the suit land. The first Appellate Court, though while discussing the issue No. 1 has recorded a clear and categorical finding that the plaintiffs have acquired right, title and interest over the suit land by way of purchase from Bidyabati Devi, in the subsequent stage of the discussion on the said issue, however, observed that "whether Bidyabati has a saleable right to sell the suit land to the plaintiff is a big question mark also." The first Appellate Court in the said judgment has further observed that "the plaintiff side could not prove that Purnendu Mukharjee or Bidyabati was in possession of the suit land at any time. Mere purchasing of the suit land does not meant that they were in possession of the suit land." 19. Admittedly, the respondent No. 1/defendant No. 1 has not filed any appeal against the findings recorded by the first Appellate Court relating to right, title and interest of the plaintiff over the suit land by which the finding recorded by the learned trial Court has been upheld relating to declaration of right, title and interest of the appellants/plaintiffs over the suit land. No cross-objection has also been filed by him against the findings recorded by the first Appellate Court declaring right, title and interest of the appellants over the suit land. No cross-objection has also been filed by him against the findings recorded by the first Appellate Court declaring right, title and interest of the appellants over the suit land. Moreover, it is evident from the discussions made by the learned Courts below in the judgment that Ext-7 by which Bidyabati Devi's husband purchased the land from the original owner has been proved and the same has been admitted into evidence without there being any objection. The said Exhibit-7 is a registered sale-deed. The appellants have also proved that Bidyabati Devi inherited the property after the death of her husband. The appellants, therefore, could prove that the suit land, by virtue of such purchase and subsequent inheritance devolve on Bidyabati Devi, which was subsequently transferred by way of registered sale-deed Ext-1, in favour of the plaintiffs No. 1 and 3. The said documents as noticed above were also admitted into evidence without there being any objection by the respondent No. 1/defendant No. 1. That being the position, in my considered opinion, both the Courts below have correctly recorded the findings that the plaintiffs have acquired right, title and interest over the suit land being 'B' Schedule land. 20. Article 65 of the Limitation Act, 1963 stipulates the time limits within which a suit by the plaintiff for recovery of possession based on the title is to be instituted. Relevant portion of Article 65 of the Limitation Act is reproduced hereunder: Description of suit Period of limitation Time from which period begins to run 65. For possession of immovable property or any interest therein based on title Twelve years When the possession of the defendant becomes adverse to the plaintiff. Relevant portion of Article 65 of the Limitation Act is reproduced hereunder: Description of suit Period of limitation Time from which period begins to run 65. For possession of immovable property or any interest therein based on title Twelve years When the possession of the defendant becomes adverse to the plaintiff. Explanation.-For the purpose of this Article: (a) where the suit is by a remainderman, a reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisee, as the case may be, falls into possession; (b) where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies; (c) where the suit is by a purchaser at a sale in execution of a decree when the judgment-debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment-debtor who was out of possession. 21. The question which, therefore, first requires to be determined in the case at hand, is whether the possession of the defendant becomes adverse to the plaintiff, if so, when and whether the defendant's possession continued to be adverse to the plaintiff for 12 (twelve) years. In other words, whether suit has been filed within twelve years of such possession. As held above the plaintiff has right, title and interest over the suit land. Under Article 65 of the Limitation Act, burden is on the defendant to prove affirmatively that his possession has become adverse as he has expressly or impliedly denied the title of the plaintiffs, the true owners, as well as the date when such possession becomes adverse to the plaintiffs. The defendant, who claims adverse possession must show by clear and unequivocal evidence that his possession is hostile to the real owner for over twelve years which has the effect of exhausting the title of the real owner by operation of Article 27 of the Limitation Act. The defendant, who claims adverse possession must show by clear and unequivocal evidence that his possession is hostile to the real owner for over twelve years which has the effect of exhausting the title of the real owner by operation of Article 27 of the Limitation Act. In a suit falling under Article 65, if the defendant wants to defeat the right of the plaintiffs, he has to establish his adverse possession for 12 years and if the defendant fails to do so than the plaintiff cannot be non-suited merely because he is unable to prove his possession within 12 years. 22. Both the learned Courts below recorded the finding that the defendant No. 1 came to the suit land at least on 5.4.1979, that the date when the plaintiffs claim that they were dispossessed and the suit having been filed on 23.7.1991, it is barred by Article 65 of the Limitation Act. The Courts below, however, did not accept the case of the defendant No. 1 that they are possessing the suit land since 1970 adverse to the interest of the plaintiff. To non-suit the plaintiff on the ground of limitation under Article 65of the Limitation Act, the defendant's possession must remain adverse to the plaintiffs for twelve years. continuously, uninterruptedly and without there being any action on the part of the true owner. In this case in hand admitted by the proceeding under Section 145, Cr PC has been initiated on 24.9.1979 at the instance of the plaintiff No. 3 questioning the defendant No. 1's possession. Therefore, the defendant No. 1 at the most was in uninterrupted and unchallenged possession from 5.4.1979 to 24.9.1979 and not for 12 (twelve) years. Even if the defendant No, 1 continued to be in possession thereafter till institution of the suit, it would not constitute adverse possession, because mere possession, whatsoever long period may be, does not constitute adverse possession. Hence the suit of the plaintiffs cannot be held to be barred by the law of limitation under Article 65. 23. It also appears from the averments made in the plaint that the plaintiffs have stated about initiation of 145, Cr PC proceeding and passing of an order of attachment by the Magistrate in such proceeding as well as continuance of the same till final disposal of such proceeding on 19.11.1990 declaring the possession in favour of the defendant No. 1. It also appears from the averments made in the plaint that the plaintiffs have stated about initiation of 145, Cr PC proceeding and passing of an order of attachment by the Magistrate in such proceeding as well as continuance of the same till final disposal of such proceeding on 19.11.1990 declaring the possession in favour of the defendant No. 1. In the written statement filed, the defendant No. 1 has also admitted initiation of such 145, Cr PC proceeding and disposal of the same in his favour by the Magistrate on 19.11.1990. The defendant No. 1 further claims that he has acquired prescriptive right by adverse possession. The defendant No. 1 has also proved the entire record of 145, Cr PC proceeding as Ext. 'A'. There is, however, no denial by the defendant No. 1 about passing of an order of attachment by the Magistrate under Section 146(1), Cr PC in the said proceeding. 24. Section 145(6), Cr PC provides where the Magistrate decides that one of the parties was, or should under proviso to Sub-section (4) be treated as being, in such possession of the land in question, he shall issue an order declaring such party to be entitled to possession thereof until evicted there from in due course, and forbidding all disturbances of such possession until such eviction. The words "until evicted therefrom in due course" as occurring in Sub-section (6) of Section 145, Cr PC means the eviction of a party in whose favour possession has been declared by the Magistrate, consequent upon adjudication of the title or right to possession by competent Court. That does not necessarily mean a decree of eviction. Unsuccessful party before the Magistrate may dispute the finding arrived at by the learned Magistrate and is at liberty to show before the competent Court that he had not dispossessed the successful party or that it is the unsuccessful party and not the successful party, who was actually in possession and the finding arrived at by the Magistrate was wholly erroneous and unsustainable in law. 25. In a proceeding under Section 145, Cr PC a Magistrate is not required to go into the title or right to possess. 25. In a proceeding under Section 145, Cr PC a Magistrate is not required to go into the title or right to possess. What a Magistrate under Section 145, Cr PC is to see which party was in possession on the date of the initiation of the proceeding under Section 145(1), Cr PC or two months next before the date of initiation of such process. He, however, cannot decide the question of title or right to possess. The unsuccessful party after the final order passed by the learned Magistrate declaring possession in favour of successful party, can bring a suit for declaration of right, title and interest, if the title is clouded and for eviction of such party. The decision of the Magistrate in such a proceeding under Section 145, Cr PC does not bind a civil Court while a decision of a civil Court binds a Criminal Court Section 146(1), Cr PC authorizes the Magistrate to attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof, if the Magistrate at any time after the case an order under Section145(1), Cr PC considers the case to be one of emergency, or if he decides the none of the parties was then in such possession as is referred to in Section 145, or if he is unable to satisfy himself as to which of them is in such possession of the subject of dispute. 26. The decision given under Section 145, Cr PC no doubt has relevance and is admissible in evidence to show that (i) there was dispute relating to a particular property; (ii) dispute was between the particular parties; (iii) such dispute lead to passing of the order under Section 145(1) or an order of attachment under Section 146(1) on a given date; and (iv) Magistrate found one of the parties to be in possession of the disputed property on the date of preliminary order. As soon as the property has been attached by virtue of an order under Section 146(1), Cr PC, such property is held custodia legis by the Magistrate for and on behalf of the party who would be successful from the competent Court by establishing right and possession of the property. As soon as the property has been attached by virtue of an order under Section 146(1), Cr PC, such property is held custodia legis by the Magistrate for and on behalf of the party who would be successful from the competent Court by establishing right and possession of the property. When an order of attachment has been made under Section 146(1), Cr PC it is not necessary for the unsuccessful party to seek relief of possession from the Court and the mere adjudication of right would suffice. [Santi Kumar Panda (supra)] 27. As noticed above, the plaintiffs in the plaint made categorical averments relating to initiation of proceeding under Section 145, Cr PC as well as passing of order of attachment by the learned Magistrate in such process. Defendant No. 1 in the written statement has admitted initiation of such proceeding under Section 145, Cr PC and has also not denied about attachment of the property by the learned Magistrate. There is not even a evasive denial of the same. Defendant No. 1 has in fact proved the entire record of the said proceeding (Case No. 710/79), which has been admitted into evidence and marked as Ext. 'A'. It appears from the said record namely Ext. 'A' as proved by the defendant No. 1, that the learned Executive Magistrate vide order dated 24.9.1979 drew proceeding under Section 145, Cr PC an passed order of attachment of the suit land under Section 146, Cr PC. No doubt while passing the order under Section 146 attaching land no reason has been recorded as required under the said provision of law. Ext. 'A' also does not disclose appointment of any receiver. The fact remains that the suit land has been attached by an order passed by the learned Magistrate under Section 146(1), Cr PC. It also appears from the said record that pursuant to such order of attachment a notice was issued on the same day i.e. on 24.9.1979 by the Magistrate prohibiting both the parties from entering on to the disputed land until further order. The said order of the Magistrate has been enforced by the police in presence of witnesses on 27.9.1979. It also appears from the said record that pursuant to such order of attachment a notice was issued on the same day i.e. on 24.9.1979 by the Magistrate prohibiting both the parties from entering on to the disputed land until further order. The said order of the Magistrate has been enforced by the police in presence of witnesses on 27.9.1979. Therefore, the effect of such order of attachment of the property prohibiting both the parties from entering into the land would be to disrupt the defendant's possession and to hold the property by the Magistrate custodia legis for the period of attachment, on behalf of the rightful owner, as observed by the Apex Court in Santi Kumar Panda (supra); Patna High Court in Dhukan Ram (supra); Andhra Pradesh High Court in Smt. Pentapati Venkataraman (supra) and Orissa High Court in Navasingha Ron (supra). 28. In Atar Khan (supra) this Court while dealing with the question relating to commission of offence under Section 188, IPC for alleged violation of an order passed under Section 144, Cr PC has, insofar the criminal liability, held that unless proceeding under Section 145, Cr PC is initiated, there cannot be order of attachment and hence there is no question of prosecution under Section 188, IPC for alleged violation of the order of attachment passed before initiation of proceeding under Section145, Cr PC, the same being without jurisdiction. It has further been observed that the order of attachment must indicate prohibiting parties from entering into the land. The decision in Sajjan Singh Bhairun Singh (supra) on which the learned Counsel for the respondent/defendant No. 1 has placed reliance is not applicable in the present case. In the said decision a single Judge of Rajasthan High Court has opined that when the attachment order passed under Section 145(4) of the old Code, is not challenged, the consequential order of appointment of receiver cannot be questioned. The decision in the said case rather goes against the respondent/defendant No. 1, as it has been opined in that case that once an order of attachment is passed under Section 145(4), Cr PC, 1898, the Court has to appoint some one to take possession of the property and such an order is only a follow up one. The decision in the said case rather goes against the respondent/defendant No. 1, as it has been opined in that case that once an order of attachment is passed under Section 145(4), Cr PC, 1898, the Court has to appoint some one to take possession of the property and such an order is only a follow up one. A Division Bench of Patna High Court in Kailash (supra) has also opined that to constitute custodia legis the land in dispute must be taken in possession or at least by making an explicit order prohibiting the parties from going upon the land and where no such order is passed by Magistrate under Section 145, Cr PC, 1898, and if there is nothing on record to show that the possession of the land was taken either by service of the attachment at the spot or by delivering the possession to a receiver appointed by the Court, mere existence of such an order in the order sheet, does not constitute custodia legis. In the case in hand, as discussed above, the order of attachment has been enforced by the police whereby both the parties have been prohibited from entering into the land. 29. The contention of the learned Counsel for the defendant No. 1 that there being no pleading relating to the attachment of the property by the Executive Magistrate under Section 146(1), Cr PC and there being no issue framed in that regard and no decision having been rendered in that respect, the appellants/plaintiffs cannot raise such plea in the second appellate stage, in view of the aforesaid discussion namely, that such a plea has been raised by the plaintiffs in the plaint, which has not been denied by the defendant No. 1 in the written statement and in fact the proceeding drawn under Section 145, Cr PC has been admitted into evidence at the instance of the defendant No. 1 by marking the said record as Ext. 'A', cannot be accepted. The learned Courts below in view of the Ext. 'A' i.e. record of the proceeding under Section 145, Cr PC is duty bound to take into consideration such proceeding and also consider the legal effect of the order of attachment passed in such proceeding on the question of limitation decided by it under Article 65 of the Limitation Act, which has not been done in the instant case. 'A' i.e. record of the proceeding under Section 145, Cr PC is duty bound to take into consideration such proceeding and also consider the legal effect of the order of attachment passed in such proceeding on the question of limitation decided by it under Article 65 of the Limitation Act, which has not been done in the instant case. The decision of the Apex Court in Pachu Copal Barua (supra) and Ram Kumar Agarwal (supra), in view of the aforesaid position is not applicable in the present case. 30. The further contention of Mr. Medhi, learned Counsel for the respondent/defendant No. 1 that since the learned Magistrate has recorded a finding in the final order passed on 19.11.1990 that the respondent/defendant No. 1 is in possession of the land in question, while declaring the possession in his favour, which lead to show that the respondent/defendant No. 1 was in possession of the property even after initiation of the proceeding under Section 145, Cr PC and passing of the order of attachment under Section 146, Cr PC, cannot be accepted as the Magistrate has declared the possession, which he chooses to do on the basis of the materials available on record, with regard to the date of passing of the preliminary order under Section 145, Cr PC. Therefore, the finding that the respondent/defendant No. 1 is in possession of the land in question relates to the date when the 145(1), Cr PC proceeding was initiated and it does not mean that the respondent/defendant No. 1 continued to be in possession in spite of order of attachment passed and notice prohibiting parties to enter into the land issued. There is absolutely no finding recorded by the learned Magistrate in the said final order dated 19.11.1990 that despite order of attachment passed the respondent/defendant No. 1 continued to be in possession of the land in question. On the other hand, it appears from the said final order dated 19.11.1990 that the learned Magistrate vacated the order of attachment on that date only. 31. As discussed above, there is an order of attachment passed under Section 146(1), Cr PC on 24.9.1979 as well as direction prohibiting both the parties from entering into the land, which was enforced by the police oh 27.9.1979 and the land was released from attachment by the Magistrate by the final order dated 19.11.1990. 31. As discussed above, there is an order of attachment passed under Section 146(1), Cr PC on 24.9.1979 as well as direction prohibiting both the parties from entering into the land, which was enforced by the police oh 27.9.1979 and the land was released from attachment by the Magistrate by the final order dated 19.11.1990. For this entire period the land was under attachment as is evident from the record of the proceeding initiated under Section 145, Cr PC which has been exhibited as Ext. 'A'. The land being under attachment, even though no reason for passing the said order of attachment had been recorded by the Magistrate, such land was held custodia legis by the Magistrate for that period and hence the said period cannot be counted for the purpose of acquiring prescriptive right by the respondent/defendant No. 1 by adverse possession and also for Article 65 of the Limitation Act. The suit in the instant case has been filed by the appellant/plaintiffs on 3.7.1991 i.e. within 8 (eight) months from the date of passing of the final order dated 19.11.1990 by the learned Magistrate declaring possession in favour of the respondent/defendant No. 1. Declaration of such possession in a proceeding under Section 145, Cr PC in favour of the respondent/defendant No. 1, as noticed above, is subject to the order that may be passed by a competent civil Court for eviction of the party in whose favour declaration has been made. Therefore, for the purpose of Article65 of the Limitation Act, the period for which the land was under the order of attachment, cannot be counted, so also for the purpose of adverse possession. 32. Both the Courts below, inspite of pleadings noticed above and materials available on records of 145, Cr PC proceeding (Ext. 'A'), before them, did not consider the legal effect of the order of attachment passed under Section 146(1), Cr PC as well as issuance of notice prohibiting parties from entering on to the land and enforcement of the same by the police, while deciding the issue relating to limitation and adverse possession. 33. In view of the aforesaid discussions and findings, the judgments and decrees passed by the learned Courts below are set aside. The suit of the plaintiffs is decreed. 34. The appeal is accordingly allowed. There shall, however, be no order as to costs. 35. 33. In view of the aforesaid discussions and findings, the judgments and decrees passed by the learned Courts below are set aside. The suit of the plaintiffs is decreed. 34. The appeal is accordingly allowed. There shall, however, be no order as to costs. 35. The Registry is directed to draw up the decree accordingly. Send down the records. Appeal allowed.