JUDGMENT
A.R. Sinha, J.
1. This is a defendants’ appeal against the judgment of affirmance.
2. The plaintiff filed a title suit for declaration of his title and recovery of possession with respect to the land fully described in details in schedules 2 and 3 of the plaint. There was a further prayef for mesne profit and for restraining the defendants from withdrawing Rs. 1751/-which was in deposit in the criminal court under Section 145 of the Code of Criminal Procedure (hereinafter referred to as the Code).
3. In brief, the plaintiff’s case was that the plaintiff was the owner of 3 bighas 10 kathas of jote land is 9 holdings. One of the holdings was of 33 biff-has 4 kathas in village Madhopur fully described in Schedule 1 of the plaint which was a diara land. According to the plaintiff he was coming in possession of the said land since long. The land went under water and came out in the year 1938 and the plaintiff again came in possession thereof. According to the plaintiff after the re-appearance of the land, the landlord got the land surveyed and khasra and map were prepared. In 1948 a dispute arose between the parties and a proceeding under Section 144 of the Code was started on 29th of Dec. 1948. This proceeding was converted into a proceeding under Section 145 of the Code. According to the plaintiff in that proceeding defendant No. 1 falsely claimed 14 bighas 11 kathas 14 dhurs as his ancestral iote land and defendants Nos. 2 and 3 claimed 7 bighas 13 kathas as purchaser from one Khokabati widow of Harkoo Jha out of the said 33 bighas 4 kathas of the ancestral land of the plaintiff. The proceeding under Section 145 of the Code was decided against the plaintiff on 3rd of November. 1950. The plaintiff moved the District and Sessions Judge for reference to this Court but the prayer was rejected on 4th of December, 1950. Thereafter the plaintiff filed a criminal revision application in this Court and the same was rejected on 2nd of February 1951. Hence the plaintiff filed the instant suit on 30th of January, 1954 in the court of Munsif, Bhagalpur.
4. An objection was raised on behalf of the defendants that the family of the plaintiff had only 4 bighas 15 kathas 6 dhurs of ancestral land which was in sudhbharna of one Jithu Rai and the plaintiff’s case that he had ancestral land of 33 bighas and odd was false. The defendant No. 1 claimed to be in possession of 14 bighas and odd as his ancestral land and defendant Nos. 2 and 3 claimed 7 bighas and odd as purchaser from one Khakobati. According to the defendants the plaintiff was never in possession of the suit land and the proceeding under Section 145 of the Code was correctly decided in favour of the defendants and against the plaintiff.
5. The defendants submitted that the suit was barred by limitation. Both the courts below have concurrently held that the suit was not barred by limitation.
6. Learned counsel has argued before us that both the courts below have wrongly decided the question of limitation and the learned counsel has submitted that the suit having been filed on 30th of January. 1954 beyond three years from the date on which the order under Section 145 of the Code was passed (i. e. on 3-11-50), the suit was clearly barred by limitation under Article 47 of the Limitation Act (old). According to the learned counsel for the appellants the date, in law, has to be counted from the date of the final order in the proceeding under Section 145 and if so counted, the suit was clearly barred bv limitation. Learned counsel for the appellants has submitted that the order passed by this Court on 2nd of February, 1951 dismissing the criminal revisional application in limine will not be the starting point of the limitation. At this stage it is pertinent to note that if the date is counted from the date of passing of the order in criminal revision application by this Court i. e. from 2-2-51 the suit filed on 30-1-54 is well within time. Learned counsel has tried to persuade us to accept his submission that as the criminal revision application was dismissed in limine the plaintiff was not entitled in law to compute the period of limitation from the date of the order i. e. from 2-2-51 when the criminal re-visional application was dismissed in limine.
7. As I have stated above, the suit was filed on 30th January. 1954. The plaint thereafter was returned on 7th July, 1956 and the learned Munsif, while returning the plaint, ordered that the plaintiff should present his plaint before the proper court by 18th of July, 1956 and the plaintiff presented his plaint before the learned Subordinate Judge. Bhagalpur on 13th July, 1956.
8. Learned counsel for the appellants has submitted that the plaintiff was not entitled to take advantage of the period between 30th of January, 1954 and 7th of July, 1956 and has further submitted that even if the period between these two dates is excluded the plaintiff is not entitled to take advanage of Article 14 of the limitation Act.
9. So far as the first submission of the learned counsel for the appellants is concerned i. e. the criminal revisional application having been dismissed in limine. the plaintiff was not entitled to count the period of limitation from the date of dismissal (in limine) of the criminal revisional application i. e. from 2-2-51. learned counsel has placed reliance on the case of Nagabhushanayya v. Kotayya (AIR 1946 Mad 444). It is true that the decision in this case supports the submission advanced by the learned counsel for the appellants but in the case Pitambar Choudhary v. Achoki Choudhary (AIR 1951 Pat 325) a similar point arose for consideration and it has been held therein that the dismissal of the revisional application in limine or otherwise makes no difference in law. The limitation runs from the date on which the revisional application is disposed of and that becomes the final order within the meaning of Article 47, Limitation Act. In the case of Pitambar Chaudhary (AIR 1951 Pat 325) (supra) AIR 1946 Mad 444 was also cited and this Court distinguished that case and placed no reliance on that. Under the old Code if the party against whom the decision in 145 proceeding went against moved the District and Sessions Judge for referring the case to the High Court and the reference was rejected and if the party never moved the High Court in that case there was no order except the order passed by the Magistrate as the learned Sessions Judge had not to pass any order except to refer the matter to the High Court or to refuse reference but in a case in which the High Court is moved and if the application is dismissed either in limine or on merit: in my opinion, it makes no difference and the order passed by the High Court becomes the final order under the meaning of Article 47, Limitation Act. The instant case is fully covered on this point by the decision reported in AIR 1951 Pat 325 (supra) and hence for the purpose of computing the period of limitation, final order in the instant case is the order of this Court dated 2nd of February, 1951 when this Court dismissed the criminal revisional application in limine i.e. when this Court finally disposed of the matter. In my opinion, there is no substance in the first submission advanced by the learned counsel for the appellants.
10. When the present appeal was placed before the learned single Judge, the learned single Judge by order dated 19th of March, 1982 referred the case to a Division Bench expressing an opinion that, it seems, there is a conflict of opinion between the cases reported in AIR 1951 Pat 325 (supra). AIR 1941 Pat 372 (Rampal Singh v. Mansukh Rai Khemka) and the case reported in 1966 BLJR 147 : (AIR 1966 SC 605) (Ambika Prasad Thakur v. Ram Ekbal Rai).
11. I have perused the decision reported in 1966 BLJR 147 : (AIR 1966 SC 605) (supra). The point canvassed before us was not canvassed in that case and the learned counsel for the appellants fairly concedes that the point as canvassed in the instant case, was not canvassed there. In that, view of the matter, the case of Ambika Prasad Thakur (1966 BLJR 147) : (AIR 1966 SC 605) does not come in conflict with the case reported in AIR 1951 Pat 325 (supra) nor with AIR 1941 Pat 372 (supra) and these earlier decisions held the field. In case of summary dismissal of the revisional application by the High Court, whether its order would be final order within the meaning of Article 47, Limitation Act, no opinion was expressed in AIR 1941 Pat 372 (supra).
12. The second and the third submission, as referred to above, advanced by the learned counsel for the appellants are inter-connected and hence I deal with them together. The learned counsel for the appellants has argued that the plaintiff deliberately undervalued the suit at Rs. 2,801/- which was later raised to Rs. 8,531/- and hence as the plaintiff was not acting bona fide, he was not entitled to the advantage of the period between the date when the plaint was presented and the date when the plaint was returned i. e. the period between 30th of January, 1954 and the 7th of July, 1956. On discussion of the materials on record by the courts below it is apparent that the suit land was a diara land and it was amenable to alluvion and diluvion. When the plaint was presented by the plaintiff it was the defendant who objected to the valuation and on evidence by the order of the court the valuation was increased. Hence, in my opinion, it cannot be said that the plaintiff. when presented the plaint, was not acting bona fide. Both the courts below having gone into the question, on the basis of the materials on record, have come to the finding concurrently that the plaintiff had filed the suit before the Munsif in good faith and hence the plaintiff was entitled to get the remission of the period when the suit was pending before the Munsif. Both the courts below, on materials on record, have concurrently held that there was no evidence to show want of good faith on the part of the plaintiff nor do I see any reason to differ with the finding of the courts below. Hence, in my opinion, there is no substance in the second submission advanced by the learned counsel as well.
13. The last submission advanced by the learned counsel for the appellants was that even if the plaintiff was en-titled to exclusion of period between 30th January, 1954 (when the suit was filed) and 7th of July 1956 when the plaint was returned by the court with a direction to present the plaint before the proper court bv 18th of July. 1956, the suit was barred by limitation. In my opinion, there is no substance in this submission of the learned counsel as well. As I have said above, the learned Munsif while returning the plaint on 7th of July. 1956, passed an order that the plaintiff should present his plaint before the proper court by 18th of July, 1956 and the plaintiff presented the plaint before the proper court on 13th of July, 1956 i- e. before the time allowed by the court. In my opinion, the rule of equity is to be invoked in aid of the party who has been diligent in pursuing his remedy and both the courts below concurrently have held that there was no material on record to show that the plaintiff was not acting in good faith and I see no reason to differ from the concurrent finding of the courts below. Hence, in my opinion, as the plaintiff has been acting diligently and in good faith in pursuing his remedy, he was entitled to present his plaint before the proper court within the time granted by the court which the plaintiff, in the present case, has obeyed. Thus the last submission of the learned counsel for the appellants also fails.
14. No other point has been argued before us.
15. No body has appeared on behalf of the respondents and hence the appeal is dismissed without costs.
S.K. Jha, J.
I entirely agree.