JUDGMENT
B. Panigrahi, J.
1. The unsuccessful plaintiffs are in appeal against the dismissal of their suit for declaration of their title and possession. In order to appreciate the respective contention of both parties we, however, find it appropriate to quote the admitted genealogy placed in the record :
GENEALOGY
Rama Barik
_________________|_______________
| |
Aparti Noki
___________|___________ |
| | Haguru
Khetri(daughter) Dinabandhu |
| ______|_________ Krushna
Chaturbhuja | | _____|__________________________
| Sankari Muturi | | |
Gunmani (1st wife) (2nd wife) Indra Surendra Narendra
(D.7) = (D.1) (D.2)
Chandmani |
(D.5) |
| |
Gopinath |
| |
Chandrabat(D.6) |
____________________|_______________
| |
Kanhei Danei
(D.3) (D.4)Undisputedly Aparti was the owner of the disputed property in which the plaintiff-appellants have claimed title on the basis of purchase from Chaturbhuja, who succeeded Sankari, the last owner whereas the defendant No. 1 claimed to have acquired title by adverse possession immediately after the death of Sankari.
2. Plaintiffs’ case in short is that on the death of Sankari on 28.5.1960 Chaturbhuja, son of the sister of Dinabandhu acquired the property by survivorship. Therefore, he applied for mutation of his name in place of Sankari. Defendant No. 1 raised objection to the same on the ground that Sankari bequeathed all her properties in favour of defendants 1 to 4 by making him the executor under a registered will. The prayer for mutation by Chaturbhuja was, however, refused by the Mutation Officer who directed the parties to establish their title in Civil Court. Thereupon defendant No. 1 filed a suit being T.S. No. 66/1966 claiming his right along with defendants 2 to 4 in the year 1966 on the basis of the will. The learned trial Court after considering the oral and documentary evidence and also the submission advanced before him held that the will was not genuine. Thereafter Chaturbhuja sold the disputed property to the plaintiffs on 14.11.1969. As there was likelihood of breach of peace and tranquility over the disputed property, defendant No. 1 filed a proceeding under Section 145 of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C.’) in which the preliminary order was proclaimed on 26.10.1970 and the disputed property being attached remained in possession of the receiver as ‘cistodia legis’. In the final order dated 10.11.1972 the possession of defendant No. 1 was declared and, therefore, the plaintiffs filed the suit on 25.4.1973 for declaration of their right, title and recovery of possession along with the usufructs for the period of attachment.
3. Though the defendants 2 to 4 filed their written statement, but it is noticed, they did not contest the suit seriously, rather, they supported some of the averments made in the plaint. Defendant No. 1 was the sole contestant in the suit. His case was that Chaturbhuja was not the sister’s son of Dinabandhu as he had no sister named Khetri and as such he could not have claimed as successor of Sankari. Defendant No. 1 being in exclusive possession of the suit property in his own right, as such he filed the objection in mutation proceeding denying right, title, interest and possession of Chaturbhuja. As plaintiffs were weilding tremendous influence in the locality, therefore, they managed to get the sale deeds executed in collusion and connivance with Chaturbhuja with a view to defeat the rights of defendant No. 1. Since the plaintiffs threatened the defendant No. 1 to give up his possession, therefore, there was a procaeding under Section 107, Cr.P.C. in which the lands were attached. But possession of defendant No. 1 was declared from the date of promulgation of the preliminary order. The defendants 2 to 7 supported the plaintiffs on the promise that they would be given some lands by the plaintiffs in the event the plaintiffs succeed in the suit. Defendant No. 1 with the above pleadings pressed for dismissal of the suit.
4. Both parties participated in trial and placed their oral and documentary evidence as well. The plaintiffs examined eight witnesses and proved documents marked Exts. 1 to 19. Defendant No. 1 examined six witnesses and also proved some documents marked Exts. A to R. The learned trial Court considering the evidence on record was, however, inclined to hold that Khetri was the sister of Dinabandhu and as such Chaturbhuja was his sister’s son. As a last male successor Chaturbhuja succeeded to the estate of Sankari, widow of Dinabandhu. But the trial Court held that since the plaintiffs failed to establish the subsisting right within 12 years from the date of the suit, therefore, they were non-suited for claiming the suit properties. The trial Court also disbelieved that Chaturbhuja possessed the land through bhag tenant for a period of two years after the death of Sankari. The trial Court has, therefore, dismissed the suit as barred by limitation.
5. Being aggrieved by the judgment/decree of dismissal of the suit, plaintiffs have filed this First Appeal in this Court which had appeared before a learned Single Judge of this Court.
6. Several contentions were raised by the learned counsel appearing for the plaintiff-appellants as well as respondent No. 1. A formidable point was raised by the appellants that possession by a receiver in a proceeding under Section 145, Cr.P.C. enures to the benefit of the successful party in the suit. Therefore, according to Mr. Rath appearing for the appellants, since the trial Court’s findings support the plaintiffs’ title, therefore, the possession of the receiver during 145 proceeding must enure to the benefit of plaintiffs.
7. Learned counsel appearing for the respondents raised a serious contention that a Division Bench of this Court in the decision reported in 31(1965) CLT 1153 in the case of Sribatcha Padhano and after him Bauri Padhan and Ors. v. Narasu Naik and Ors. after taking into consideration the decision of the Supreme Court observed that the possession by the receiver in a proceeding under Section 145, Cr.P.C. would enure to the benefit of the successful party in the 145, Cr.P.C. proceeding. It was further contended that Section 9 of the Limitation Act prescribes that once limitation begins to run it will not be arrested unless specifically provided for. Section 15 of the Limitation Act is the only enabling provision where the limitation can be arrested. Initiation of a proceeding under Section 145, Cr.P.C. does preclude the plaintiffs from filing a suit and are, therefore, not entitled to claim any benefit. Similarly the filing of probate proceeding by defendant No. 1 shall also not operate as an injunction and is a bar to file the suit. Therefore, limitation for filing the suit by Chaturbhuja started from 28.5.1960. The plaintiffs claimed to have purchased the property within 12 years from that date, but filed the suit after 28.5.1972 which appears per se barred by limitation. Reliance was placed on a decision of this Court reported in AIR 1964 Orissa 215 in the case of Bholanath Naik and Ors. v. Krupasindhu Naik and Ors.
8. The Supreme Court considered the applicability of Article 47 of the Limitation Act, 1908 where it was stipulated that a suit can be filed within 3 years from the date of final order under Section 145, Cr.P.C.. The Supreme Court held that declaration of possession by the Court under Section 145, Cr.P.C. shall enure to the benefit of the successful party in the suit, therefore, the suit was held to have been filed within time. The learned Single Judge carried an impression that the Division Bench of this Court in the Judgment cited supra held that the suit was filed long after 12 years, therefore, the plaintiffs were non-suited. It was also observed that the expression “successful party” referred to by the Supreme Court is the party in whose favour the final order under Section 145, Cr.P.C. was rendered became academic. Under the present Limitation Act, 1963 which came into force with effect from 1.1.64 there has been no analogous provision like Article 47 of the Limitation Act, 1908. Only Article 64 or Article 65 has been prescribed under the present Limitation Act to recover possession in a suit. Since the learned Single Judge was in quandary and unable to decide in either way, therefore, he referred the matter to a larger Bench framing the following questions :
(i) Whether admission of interest of other parties in a probate proceeding defeats claim of defendant No. 1 in respect of their interest to be in adverse possession against plaintiffs who have title to property.
(ii) Whether possession of receiver enures to benefit of the successful party in the 145, Cr.P.C. proceeding or successful party in the suit who proves title on the date of issue of preliminary order; and
(iii) What is effect of Section 9 of the Limitation Act and Section 15 of the Limitation Act to a suit for recovery of possession based on title when adverse possession of the party having adverse possession of the party having title had not been beyond the period of limitation to file a suit when he initiated other legal proceedings in respect of title or possession.
9. At the outset we may refer here to the date of suit as on 25.4,1973, therefore, indubitably the provisions of the Limitation Act, 1963 shall be applicable. The plaintiffs have filed the suit for declaration of their right, title and delivery of possession and also for realisation of Rs. 2477/- as usufruct against defendant No. 1 and for cost of the suit. Since the plaintiffs have filed the suit for the aforesaid reliefs, therefore, the only governing provision in the Limitation Act is Article 65 of the Limitation Act. The plaintiffs in such situation have to establish their subsisting right over the suit land in order to obtain a declaration of right and also for recovery of possession. Once such right is established it obligates the defendant No. 1 to prove that he has prescribed his right to the property by adverse possession through clear, lucid and unimpeachable evidence. In other words, it would be the bounden duty of the defendant No. 1 to establish that he derives title by adverse possession. It shall not be necessary for the plaintiffs to show that they have been in possession within a period of 12 years from the date of filing of the suit.
10. In so far as the first point raised by the learned Single Judge is concerned, admission of interest by other claimants in a probate proceeding to defeat the defendant No. 1’s right over the suit properties has to be considered first. Defendant No. 1 filed a suit being T.S. No. 66 of 1966 for obtaining probate of the last will and testament of deceased Sankari Bewa. He relied on the will purported to have been executed by Sankari Bewa, the testatrix, on 23.7.1958. In the will defendant No. 1 was described as the adopted son. It was held in negative and the will was found to be forged. In that view of the matter it is unnecessary for us to address ourselves to the question whether the admission by the other parties tantamount to defeat the right of defendant No. 1 does not any longer survive for our consideration, it became, therefore, an academic issue.
11. Mr. Rath, learned counsel appearing for the plaintiff-appellants, has contended with strong intensity of conviction that the learned trial Court has erroneously held that the possession by the receiver during the pendency of the proceeding under Section 145, Cr.P.C. shall enure to the benefit of the successful party of the said proceeding, but not the successful party in the suit in which declaration of title has been sought for. In order to substantiate his contention he has relied upon a judgment of the Supreme Court reported in. AIR 1964 SC 907 in the case of Ittyavira Mathai v. Varkey Varkey and Anr.. In the Constitution Bench of the Supreme Court comprising of five Hon’ble Judges it was held as follows :
“No doubt, in the proceedings under Section 145 of the Criminal Procedure Code, there is a finding to the effect that the appellant was in possession. That, however, means only this, that he was in possession at the date of this preliminary order made in those proceedings. In view of our finding that actual delivery of possession was effected to the auction-purchaser on 12.7.1099, it must be said that the appellant’s possession on the date of the preliminary order could only have originated in a trespass subsequent to the delivery of possession on 12.7.1099, and probably during the disputes by reason of which the respondents were compelled to take proceedings under Section 145 of the Criminal Procedure Code. The present suit cannot, therefore, be regarded as one by auction-purchaser for recovery of property on the strength of an execution safe in their favour but only one for eviction of a person who obtained wrongful possession of property by trespass after delivery of possession had been effected through court. As we have already pointed out, after the application was made by the respondents under Section 145 of the Code of Criminal Procedure, the Magistrate before whom it was made ordered attachment of property and placed it in the possession of the Receiver who continued to be in possession till the final decision of those proceedings. The possession of the Receiver during this period would necessarily enure for the benefit of the successful party. If, therefore, this period is taken into account of the respondent’s suit would be well within time.” (underlines suggested for emphasis).
In the aforesaid judgment the Hon’ble Supreme Court in unequivocal term mandated that the possession of the receiver during the period of attachment would necessarily enure to the benefit of the successful party. It was strongly contended by Mr. Mukherjee that the ‘successful party’ meant by the Supreme Court must be understood “the party who succeeded in the 145 proceeding, but not to the party who is likely to succeed in the suit.” From his submission it is further noticed that the Division Bench of this Court in the penultimate paragraph of the judgment observed, on the basis of the earlier Supreme Court judgment, that ‘successful’ means ‘successful party in the criminal proceeding.’ On a careful reading of the judgment we find that the above question has not been decided by the Division Bench of this Court where it has been held :
“Hence, any discussion about the effect of possession of the receiver when the lands were under attachment under Section 145(4), Cr.P.C. becomes some what academic.”
In the aforesaid judgment the Court held that before initiation of the proceeding under Section 145, Cr.P.C. the plaintiffs’ possession was not believed. Therefore, it was not further necessary to decide as to what would happen about the possession by a receiver during the continuance of the proceeding under Section 145, Cr.P.C.
12. It is true that under the provisions of Section 146, Cr.P.C. prior to 1955 the position was somewhat different. In a proceeding under Section 145, Cr.P.C. a criminal Court had to decide as to which of the parties was in possession on the date of preliminary order or within two months before. The possession taken by either party in a proceeding under Section 145, Cr.P.C. would be subject to the order/judgment passed by the competent Court. It is never meant to be final. In some cases it has been held that an order passed under Section 144 or 145, Cr.P.C. is like a police order which is temporary in nature. The criminal Court has no right to decide as to which party is entitled to possession, but can certainly decide as to which of the parties was in possession on the date of preliminary order or within two months therebefore. Under Section 146, Cr.P.C. prior to 1955 amendment, the criminal Court, in case, was unable to decide as to which of the parties was in possession, then it shall attach the disputed property till it is decided by the competent court. Therefore, a clear distinction can be drawn between ‘an order of attachment passed under Section 145, Cr.P.C.’ Vis-a-vis ‘under Section 146, Cr.P.C.’. In Section 145, Cr.P.C. the attachment shall continue till the possession is decided in favour of either party whereas in a proceeding under Section 146, Cr.P.C. it shall continue as long as the competent court decides the possession of either party. Thus we do not find any incongruity in the aforesaid judgment.
13. Mr. Mukherjee placed implicit reliance on a judgment of the learned Single Judge of this Court reported in Vol. 33 (1967) CLT 974 in the case of Nata Padhan and Ors. v. Banchha Baral and Ors.. On a careful reading of the judgment we do not find any earthly reason how it supports Mr. Mukherjee’s contention. The learned Single Judge in his illustrious judgment held :
It is now authoritatively settled that the Magistrate does not purport to decide a party’s title or right to ‘ possession of the land but leaves the question to be decided in due course of law. As has already been stated, the foundation of a Magistrate’s jurisdiction is apprehension of breach of the peace. With that object in view, a temporary order is passed under Section 145, Criminal Procedure Code with regard to the possession of the property until the matter is settled by a court of competent jurisdiction. It was observed by the Supreme Court that the life of the said order is conterminous with the passing of a decree by a Civil Court and the moment a Civil Court makes an order of eviction, it displaces the order of the Criminal Court. Their Lordships approved the observation of the Privy Council in 29 Ind. App. 24 – to the effect :
These orders are merely police orders to prevent breaches of the peace. They decide no question of title.
The expression “until evicted therefrom in due course of law” is not confined to an eviction through Civil Court. It speaks of eviction through a Court of competent jurisdiction. Dispute between a landlord and bhag tenant is cognizable by the Revenue Court as provided under the Act. The effect of the final order under Section 145, Criminal Procedure Code in between a landlord and a bhag tenant can be set at naught by appropriate proceedings before the Courts provided under the Act and not before a Civil Court which is not competent to entertain such dispute.
*** *** ***
It is to be noted that the 145 proceeding was initiated during the pendency of the proceeding under the Act. Doubtless the Courts under the Act have power to grant interim relief to preserve the status quo. But it cannot be denied that a 145 proceeding, initiated during the pendency of the proceeding under the Act, lis not without jurisdiction. Generally such proceedings are inexpedient, but certainly they are not without jurisdiction. The final order passed under Section 145 Criminal Procedure Code was not without jurisdiction.
The final order under Section 145, Criminal Procedure Code is, however, subject to the result of the litigation in the proceeding under the Act. It is an order of interim nature and comes to an end the moment the right, title and interest of the parties are declared by a Court to competent jurisdiction. The final order under Section 145, Criminal Procedure Code was passed during the pendency of the proceedings under the Act and it is not necessary for the parties to file a fresh suit to get away from the effect of this final order. .
On a careful reading of the above judgment, there remains no room for doubt to hold that the final order under Section 145, Cr.P.C. does not give rise to a presumption of possession in a civil suit in favour of a successful party of the criminal proceeding. It is open to the Court on the materials placed before it to come to the conclusion as to which of the parties is having better title to the property. After declaration of possession under Section 145, Cr.P.C. in the event the unsuccessful party filed a suit for declaration of title and for recovery of possession and he succeeded in getting his title declared by the competent court over the suit properties, the possession during the course of 145 proceeding shall also enure to his benefit and the adversary who had claimed title over the property by adverse possession cannot get the benefit of the order passed in his favour by the Criminal Court in 145 proceeding. The continuance of possession on the strength of final order is of interim nature and is subject to the result of the suit or proceeding. It has been observed by the Privy Council that the order under Section 145, Cr.P.C. is one of interim nature and would vanish with an ultimate decree to be passed by a Court of competent jurisdiction. The final order in the 145 proceeding is one of interim nature and stands on an analogous footing with the interim injunction issued in a suit. The position would have been different if no suit or proceeding was at all filed to get over the effect of the final order passed in a 145 proceeding. Since the appropriate provision to file such a suit under the Limitation Act, 1963 is Article 65, there has been no quarrel that it has to be filed within 12 years of the dispute regarding possession. Therefore, the plaintiffs cannot be said to be non-suited.
14. During the period of attachment under Section 145, Cr.P.C. it passes into legal custody and during the continuance of the attachment such custody is for the benefit of the true owner. If the true owner is found, in fact, in possession, his possession in the eye of law is not interrupted. If on the other hand a wrong doer was in possession at the time when attachment took place the effect of attachment is to interrupt his possession and from the moment of attachment the possession of the rightful owner survives in the eye of law.
15. Therefore, in the instant case keeping the aforesaid principle of law in mind, let us advert to the fact situation of the case.
16. It was not seriously disputed by Mr. Mukherjee that if the period of attachment is excluded while computing the period of limitation, for acquiring title by adverse possession by defendant No. 1 then it cannot be held that he had acquired title by adverse possession. Considering the case of defendant No. 1 from the above angle, it is found that he was not having valid title over the property on the date of attachment. Therefore, the period during which 145, Cr.P.C. proceeding continued, shall not enure to his benefit as the defendant No. 1 was only a trespasser. From the discussion of the oral evidence it was held that Chaturbhuja had acquired the properly by succession as the sister’s son of Dinabandhu. The plaintiffs had claimed through Chaturbhuja.
17. In the instant case the provisions of Section 9 of the Limitation Act shall not be applicable inasmuch as defendant No. 1 was held to be trespasser. So the period of limitation shall remain suspended during the period of attachment under Section 145, Cr.P.C. Section 15 of the Limitation Act is equally inapplicable while computing the period of limitation. The suit is based on title, therefore, Section 65 of the Limitation Act shall be attracted.
18. In the result, we are not in a position to agree with the findings of the learned trial court. Accordingly the suit is decreed and the plaintiffs’ title is declared over the suit property and consequently they shall recover possession from defendant No. 1. The plaintiffs are also entitled to the mesne profits of Rs. 2477/- as claimed in the plaint.
P.K. Misra, J.
19. I agree.