Bharat Chandra And Deb v. Ram Sundar Chowdhury

Mookerjee, A.C.J:— This is an appeal by three of the defendants in a suit for recovery of possession of land on establishment of title. The Court of first instance dismissed the suit as barred by limitation under Article 47 of the Schedule to the Limitation Act. Upon appeal the Subordinate Judge has held that the case is governed, not by Article 47 but by Article 142, and has made a decree in favour of the plaintiff with regard to five of the plots in suit. On the present appeal, the decision of the Subordinate Judge has been challenged on the ground that Article 47 should have been held applicable. In our opinion this contention is not well founded.

2. Article 47 provides that a suit

“by any person bound by an order respecting the possession of immovable property made under the Code of Criminal Procedure, 1898…. or by any one claiming under such person, to recover the property comprised in such order”

3. Must be instituted within three years from the date of the final order in the case. It cannot be disputed that to attract the operation of Article 47, it must be shown that the order mentioned was an order made with jurisdiction, for if the order was made without jurisdiction there is not in the eye of the law, an impediment to be removed, and the person who instituted the suit cannot be deemed to be bound thereby. In the present case the plaintiff contended that the order under Section 145 of the Cr PC, was made without jurisdiction. The records of the proceeding under S. 145 have been destroyed and the only proof of the order is an entry in the register of criminal proceedings which shows that on 15th October 1909, the Magistrate made an order that the disputed land do remain in the possession of the first party. Prima facie, an order of this description was made with jurisdiction. But the plaintiff has given evidence to establish and that evidence has been accepted by the Subordinate Judge, that on 14th October 1909 the disputing parties referred the matters in difference between them to arbitration.

4. The submission has been produced and shows that the parties had come to a settlement as to the possession of the disputed property. They had agreed that the produce would be taken by one of the parties, while the other would receive mesne profits, and that they would hold possession according to such decision as might be given by the arbitrators. The evidence further shows that this reference to arbitration was brought to the notice of the Magistrate before the order was made on the day following. Consequently, the case was covered by sub-S. (5), Section 145 of the Cr PC, which provides as follows:

“Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed and in such case, the Magistrate shall cancel his said order and all further proceedings thereon shall be stayed but subject to such cancellation the order of the Magistrate under sub-S. (1) shall be final.”

5. In the case before us what happened was that after the initial order of the Magistrate had been made with jurisdiction, the dispute between the parties ceased and there was no longer an apprehension of a breach of the peace. Consequently it became incumbent on the Magistrate to cancel his order. The fact that he did not cancel the order cannot give validity to the order that he made. This view is supported by the decisions in Kalanand Singh v. Kameshwar Snigh (1) and Sadhu Biswas v. Mohamad Ali Biswas (2). Reference has been made on behalf of the appellant to the cases of Yar Mohamad Saha v. Hayat Mohamad Saha (3) and Paladugu Parasuramayya v. Valli Ramachandradu (4), which are clearly distinguishable. In the first of these cases there was no compromise between the disputing parties and it was impossible to say that the dispute between them had been come to an end so as to terminate the jurisdiction of the Magistrate to make an order so as to avert the apprehended breach of the peace. What happened in reality was that one of the parties found his evidence so unsatisfactory that he collapsed and practically abandoned the proceeding. In the second case also the order was not made without jurisdiction. The order was made without proper inquiry, but an order so made by a Court of competent jurisdiction cannot be said to be an order made without jurisdiction; it was at best an order made by a Court of competent jurisdiction which acted in the exercise of its jurisdiction illegally or with material irregularity. The same observations apply to Paladugu Parsuramayya v. Valli Ramachandradu , Gangadharam Aiyar v. Sanharappa Naidu (5) and Bhagwan Das v. Bhan Mal (6). We are of opinion that in the present case the Subordinate Judge correctly held that the order under S. 145 was made without jurisdiction and the suit was consequently governed by Article 142. As regards the merits the decision of the Subordinate Judge does not involve any error of law. The appeal is consequently dismissed with costs.

Fletcher, J.:— I agree.

V.B/R.K

6. Appeal dismissed.