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Madras High Court
Alluri Venkatasomaraju And Ors. vs Alluri Varahalaraju Alias … on 25 January, 1929
Equivalent citations: 122 Ind Cas 171
Author: Odgers
Bench: Odgers, Wallace


Odgers, J.

1. In this case the plaintiffs are the appellants. In September, 1920, they brought this suit to recover possession with mesne profits of certain lands from the defendants. Plaintiffs’ father bought the land in question from defendant No. 1 in 1911. Proceedings were taken in June, 1915, against the plaintiffs’ father under Section 145, Criminal Procedure Code, when defendant No. 2 resisted his possession in which the possession of the 2nd defendant in the land was confirmed. The question is whether those proceedings bind the plaintiffs who are the undivided sons of their father Alluri Subbaraju who bought the property on behalf of the joint family. The importance of it is this, that if these proceedings do bind the present plaintiff they are out of time with this suit, because it was instituted more than three years from the date of the final order in the case (Ex. III) under Section 145, Criminal Procedure Code. It is argued that this order does not bind the sons who were not parties to it and was made without jurisdiction. The order came up to this Court in Criminal Revision Case No. 2G5 of 1916 after the death of the father Alluri Subbaraju when 1st plaintiff asked to be brought on as a legal representative of his father. In the then state of Section 145, Criminal Procedure Code this was impossible, but this Court held that this order was not made without jurisdiction. We are, therefore, bound by this decision as to this latter point. An order under Section 145, Criminal Procedure Code, applies to anybody bound by such order or any one claiming under such person. It is perfectly clear that the plaintiffs were aware of the proceedings, also that the property was acquired for the joint family and the plaintiffs’ father was in possession as manager on their behalf. It is also plain that Section 145, Criminal Procedure Code, is only a quasi criminal matter as it falls within the purview of Article 47 of Limitation Act unlike most criminal proceedings. In Nathubhai Brijlal v. Emperor 2 Ind. Cas. 513 : 11 Bom. L.R. 377 : 10 Cr.L.J. 64 it was held that all parties with actual notice of the proceedings under Section 145 were bound by them. That has also been held here in Criminal Revision Case No. 87 of 1917. So that, not merely the actual parties to, but all persons who may be concerned in, the dispute are parties with whom the Magistrate has to deal, the object being to prevent a breach of the peace. So it is not only the actual parties to the order but all parties with notice of the proceedings who are bound. In Ram Sahai v. Binod Behari Ghose 71 Ind. Cas. 402 : 45 A. 306 : 21 A.L.J. 102 : A.I.R. 1923 All. 151 it is distinctly laid down that where the manager of a joint family has taken proceedings under Section 145 as the managing member he and the whole family are bound by the order under it. This seems to me in accordance with reason and common sense. There, therefore, seems no good reason why, having regard to the authorities cited, we should not hold that under the circumstances the plaintiffs were bound by the notice of these proceedings under Section 145. If all persons are so bound who have had actual notice, though not parties to the order, as laid down in Nathubai Brijlal v. Emperor 2 Ind. Cas. 513 : 11 Bom. L.R. 377 : 10 Cr.L.J. 64 and followed in this Court as stated above, it stands to reason that these plaintiffs who admittedly had notice of the proceedings should also be bound. There is the additional reason that their father had acquired the properties as manager of the family on their behalf and it seems only reasonable that the other members of the family should be bound. The plaintiffs must then fail on this point of limitation and the second appeal must be dismissed on that point.

2. The next question is whether plaintiffs are entitled to recover compensation from the 1st defendant now represented by respondents Nos. 20 and 21. The sale-deed under which the plaintiffs are said to have acquired title to these lands is Ex A and is recited to be a deed of sale of inam grant land and zeroyati land. The vendor recites that there is a lease on the land in favour of the 2nd defendant for 8 years from 1907 to 1915. The document then goes on:

Therefore, you shall, subject to your continuing the cowle period in favour of the said Varahalu Raju alias Ramabhad-diraju Garu and subject to your collecting from him in my stead, the cost at the rate of Rs. 75 payable each year, on the 30th of Makna Bahulam, for the four years from the Fasli year 1321, according to the instalments settled in the said cowle, take possession of the said land and enjoy the same soon after the expiry of the 30th of Palguna Bahulam of the year Ananda, (15th March, 1915), continuing his term until the close of the said cowle period.

3. This is said to be a covenant for possession and enjoyment after the period of the lease, but it turned out that the tenant had a right of permanent occupancy and the learned Advocate for the plaintiffs admits that his client was aware of the legal status, as an occupancy ryot, of the defendant at the time he entered into this transaction Ex. A and he also accepts the finding that he is an occupancy tenant. The District Judge found that the plaintiffs were aware of the nature of the tenure and were, therefore, not entitled to damages. The Subordinate Judge came to the same conclusion, but he put it on the ground that the plaintiffs had failed to obtain possession by coming to Court too late (i.e. on the point of limitation); so that it was their own fault that they failed to obtain possession. The question is, did the plaintiffs fail to get possession owing to the representation of the defendants as contained in Ex. A? It is impossible to say that they did. This part of the case is outside the question of limitation because being a registered document the plaintiffs have six years within which to sue. It may, of course, be said with reason that possession that the plaintiff was to get under Ex. A after the expiry of the 2nd defendant’s lease was something different from what he had up to the expiration of that lease. And it is perhaps possible to explain this difference by saying that after its expiry he would have been able to take advantage of the provisions of the Madras Estates Land Act with regard to enhancement of rent and so on. Mahomed Ali Sheriff v. Budharaju Venkatapathi Raju 60 Ind. Cas. 235 : 39 M.L.J. 449 : 11 L.W. 537 : M.L.T. 304 was cited to us for the proposition that mere knowledge on the part of the vendee of a defect in title of the vendor would not by itself defeat the vendee’s right on the basis of a covenant implied by the Transfer of Property Act. This is not the only fact in this case, because here the plaintiff’s father was not only aware of the state of the defendant’s title but knew that the covenant must be entirely ineffective. At the same time it is exceedingly difficult to say especially having regard to the plaintiff’s knowledge of the whole state of things at the time he entered into Ex. A that he has been damnified by the fact that after 1915 he has not been able to collect from the tenants more than Rs. 75 per annum, the rate stipulated in the lease of the 2nd defendant, Ex. B. The contract to give him possession and enjoyment has really become unenforceable either because the 2nd defendant has acquired occupancy rights by the enactment, of the Madras Estates Land Act or by judicial decision. It seems to me that it would be very difficult for a Jury or anybody sitting as a Jury to assess any damages or at least anything more than mere nominal damages in favour of the plaintiffs for the breach of this covenant which, as a matter of fact, their father knew could never be carried out. Under the circumstances I am inclined to say that the plaintiffs are not entitled to any damages but at the same time I would give the other side no costs.

4. Respondents Nos, 11 to 14 are held in the judgment of the Subordinate Judge not to be necessary parlies and it is difficult to see why they have been made parties to this second appeal. They are dismissed from the appeal with costs.

5. The Court guardian Mr. Narayana Aiyan-gar for the 20th and 21st respondents has received Rs. 35 as his fees from the Registrar and has applied for some additional allowance. I think that an additional sum of Rs. 40 ought to be awarded to him. This sum is to be paid before decree is issued.

6. In the result, the second appeal is dismissed but without costs except as regards respondents Nos. 11 to 14 who will receive one set.

Wallace, J.

7. I agree and just wish to add my own view on the point whether the plaintiff’s suit is barred by Article 47 of the Indian Limitation Act.

8. The contention that it is not barred because the order under Section 145 of the Criminal Procedure Code was passed without jurisdiction seems to me untenable in this Court in the face of the decision of this Court itself in previous proceedings that the order was with jurisdiction. The fact the plaintiff was not a party to these proceedings and was not allowed to come on as a party cannot affect the jurisdiction of the order. Plaintiff then can only succeed in the face of Article 47 if he can show that he is not a person bound by the order under Section 145 of the Criminal Procedure Code.. His general argument is that as the proceeding under Section 145 is of the nature of a criminal proceeding, it can only bind the person actually named therein, and that though Article 47 lays down that the limitation period shall apply also to persons claiming under those who were bound, he is not claiming under his father but in his own right as a member of the same joint family of which hie father was the manager. On his argument, therefore, he is neither a person bound by the order nor a person claiming under one who is bound by the order. The latter part of his argument may be conceded, the former in my view cannot. Without going into the general question whether an order under Section 145 of the Criminal Procedure Code is a judgment in rem and maintains a party found to be in possession as against all the world until he is ousted. by an order of the Civil Court, I am clear that where the manager of the joint family in his capacity as such is a party to the proceedings, the joint family as a whole is a party and the proceedings bind any member of the joint family in his capacity as such. The possession of the manager as such is the possession of the joint family, such possession as can in the nature of the circumstances be had. If eventually the Civil Court declares that the joint family is entitled to possession the manager would retain for the joint family the possession given to him by the Criminal Court, while if the Civil Court declared the other party entitled to possession, the manager could not possibly resist the decree and claim to remain still in possession on his own individual behalf. The real party to the criminal proceedings in such a case obviously is the joint family and not the individual person who happens to be the manager. If the appellant’s view is accepted, the usefulness of the proceedings under Section 145 will be greatly curtailed. While these proceedings are quasi criminal, they are also quasi civil and there can be no legal objection to the actual parties cited being representatives of the others as in an ordinary civil case. In the present case there can be no doubt that the plaintiff’s father was a party to the proceedings in his capacity as manager of the joint family of which the plaintiff is a member. The plaintiff was, therefore, represented in the proceedings by the manager of his family, and as the manager is bound, equally is he bound. The appellant’s learned Advocate admits that he is not able to quote any reported ruling in his favour. There is a ruling to the contrary on the above lines in Ram Sahai v. Binod Behari Ghose 71 Ind. Cas. 402 : 45 A. 306 : 21 A.L.J. 102 : A.I.R. 1923 All. 151. I, therefore, agree that the appellant’s suit for possession was rightly dismissed as barred by time.

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