Full Judgment
K.S. Hegde, J.
1. The defendants in O. S. No. 160/1 of 1854-55 in the Court of the Munsiff-Magistrate, at Uulbarga are the appellants herein. The plaintiff therein is the respondent in this appeal. The trial court dismissed, the plaintiff's suit for possession of the suit properties on the basis of his title, but the first appellate Court reversed the judgment and decree of the trial Court and decreed the suit after upholding the plaintiff's title to the suit properties and at the same time holding that the defendants have not established their title.
2. The view of the law taken toy the learned appellate Judge (Additional District Judge, Gulbarga, an C. A. Mo. 222/4 of 1959-60 on his file) cannot be sustained.
3. Though the trial Court came to the conclusion that the plaintiff is the owner of the suit properties, yet, it dismissed the suit on the ground that the plaintiff had not proved that he was in possession of the suit properties within 12 years from the date of the suit. It also came to the conclusion that in view of Article 47 of the Limitation Act, the plaintiff should have filed the suit within 3 years from the date of the order made by the Criminal Court ordering delivery of possession of the suit properties to the defendants.
4. The first appellate Court came to the conclusion that Article 47 or the Indian Limitation Act or any other corresponding provision of law not having been In force In the old Hyderabad State at the relevant time, the rule laid down by that article was inapplicable to the facts of the present case. The correctness of this finding is not challenged before me. But it is urged on behalf of the appellants that the Article of Limitation applicable to the facts of this case is Article 120 and the suit having been filed long after the period prescribed by that article, the same is barred. It la unnecessary to go into that question as the appellants are bound to succeed on another ground,
5. The facts material for our present purpose are as follows : - There was dispute between the plaintiff and the defendants as regards possession of the suit properties and that dispute threatened to end in, breach of peace. Therefore the police soon action under B. 145, Crl. P. C. and got attached the properties in dispute and the Criminal Court retained possession of the same during the pendency of Section 145 proceeding. Thereafter the properties continued to be in possession of the Criminal Court. Section 145 proceeding came to an end on 23-11-1942. In that proceeding the Court held that at the relevant time defendants were in possession of the disputed properties. As a consequence of that finding it delivered possession of the properties in dispute to the defendants on 27-4-1943. The suit which has given rise to this appeal was instituted on 23-9-1954.
6. The first appellate Court erroneously thought that in this case the only relevant point for determination was the question of adverse possession pleaded by the defendants and not the proof of plaintiff's possession within 12 years from the date of suit as required by Article 142 of the Indian Limitation Act. Sri Appa Rao, the learned Counsel for the respondent, had to concede in view of the Full Bench, decision of this Court In Lingamma v. Puttegowda AIR 1963 Mys 1 that the view taken by the first appellate Court on this point is erroneous. The first appellate Court did not go into the question of possession of the plaintiff anterior to the Institution of the suit. Admittedly, the defendants were In possession of the suit properties ever since 27-4-1943. Therefore, it was required to decide the question of Limitation.
7. In this case, the crucial point for determination is as to who should be held to have beer. In possession of the suit properties during the time they were in custodia legis, i.e., from 13-7-1942 to 27-4-1943, the true owner or the persons who were declared to be in possession by the Criminal Court. Some of the High Courts have taken the view that when a Criminal Court takes possession of the properties in dispute under Section 145(4), Crl. P. C., the same should bet considered as the possession of the party who is declared by the Criminal Court to have been In possession at the time the Court took possession. See Abinash Chandra v. Tarini Charan AIR 1926 Cal 782. No decision taking a contrary view was brought to my notice.
8. In this view, which I accept as correct, the defendants should be deemed to have been in possession of the suit properties ever since 13-7-42, which means that the plaintiff was not in possession of those properties ever since 13-7-1942. If that is so, his claim is clearly barred under Article 142 of the Indian Limitation Act.
9. In the result, this appeal is allowed and the suit dismissed with costs throughout.