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Page 2167

1. This Second Appeal by the defendants-appellants is directed against the judgment and decree passed by the Ist Addl. District Judge, Palamau at Daltonganj in Page 2168 Title Appeal No. 19/1996 whereby he has reversed and set aside the judgment and decree passed by Sub-judge, Garhwa in Title Suit No. 37/66 and thereby decreed the suit filed by the plaintiffs-respondents.

2. The facts of the case lie in a narrow compass: The Plaintiffs-respondents filed the aforementioned suit for declaration of title of plaintiff No. 1 over the suit land described in schedule I of the plaint as occupancy raiyat and over the compensation money payable for four annas share in village Gonda. The plaintiffs also claimed title over Schedule -2 land and further for confirmation of their possession on the land wherefrom they were allegedly dispossessed during the pendency of the suit in execution of a decree. Plaintiffs' case is that during the period between 1939 to 1945 when the suit land was under the management of the Court of Wards, some of the co-sharers filed partition suit No. 6 of 1941 impleading the Manager of the Court of Wards as defendant No. 8. In the said partition suit a preliminary decree was passed on 25.2.1943 holding that defendant No. 8 is entitled to four annas share. In execution of the said decree vide Execution Case No. 2/7 of 1950-51 one Akhouri Ramchandra Prasad purchased the entire property in a auction sale on a consideration amount of Rs. 200/- for realization of Rs. 111/- as the cost of partition. The suit property was purchased by the defendants in the name of their brother-in-law, defendant No. 1. On the basis of that auction sale the defendants took possession of the land on 28.3.1953. Plaintiffs' further case was that actually no delivery of possession was given rather it was a paper transaction and the suit property all along remained in possession of the plaintiffs. The plaintiffs' after knowing about the auction sale, filed a petition under Order XXI Rule 90 C.P.C for setting aside the auction sale which was ultimately rejected. Then the plaintiffs filed appeal in the High Court being Miscellaneous Appeal No. 367 of 1955. The said appeal was allowed by this Court vide order dated 28.2.1985. The auction purchaser then filed Letters Patent Appeal which was also dismissed on 30.7.1958. Even the S.L.P. preferred by the auction purchaser was dismissed by the Supreme Court on 7.7.1960. In the meantime, a proceeding under Section 145 Cr.P.C. was initiated and the same was decided in favour of the plaintiffs. In spite of the aforesaid facts the defendants started threatening the plaintiffs to dispossess them from Schedule-2 land. The plaintiffs' case is that since the possession of the suit land was not actually delivered in favour of the decree-holders of that suit, there was no necessity of filing an application under Section 144 C.P.C. for restitution of the property. However, since possession was not given by the defendants, the plaintiffs filed the aforesaid suit for declaration of their title and confirmation of possession.

From the evidence of both the sides I find that the defendants are in possession of the land after auction purchase in the year, 1952-54. The above auction sale was set aside by the Hon'ble Court but the plaintiffs have not taken any step under Section 144 CPC for restitution of recovery of the possession. The plaintiffs in their plaint have said that since they were in possession, so question of taking any step under Section 144 CPC does not arise, From this statement it is clear that the plaintiffs have not taken any step under Section 144 CPC. The period of limitation for taking steps under Section 144 CPC was 3 years under Article 182 of the old Limitation Act and 12 years under Article 135 of New Limitation Act, 1963. Now the period of limitation for filing the petition under Section 144 CPC is barred by limitation and the defendant No. 75 in possession of the suit land excepting plot No. 319. Defendant No. 1 has acquired title by adverse possession by remaining in the suit land for more than 12 years and as such I find that the plaintiffs have lost their interest over suit land excepting plot No. 319. The issues are decided accordingly."

5. The appellate court reversed the finding of the trial court by holding that since the plaintiffs-respondents were found in possession of the suit land, it cannot be held that the suit is barred by limitation.

6. This Second Appeal was admitted for hearing on 10.1.1989 on the following substantial question of law:

Whether the suit was maintainable in view of Sub-section (2) of Section 144 of the Code of Civil Procedure?

7. Mr. V. Shivnath, learned Counsel appearing on behalf of the appellants assailed the impugned judgment passed by the appellate court as being illegal and wholly without jurisdiction. Learned Counsel mainly contended that since the appellants, being the auction purchasers, were given possession of the auction sold property on 8.3.1953, the only remedy available to the plaintiffs was to file an application under Section 144 CPC for restitution of the property within the period of limitation of 3 years from the date when they were dispossessed from the property. Learned Counsel further submitted that in view of Sub-section (2) of Section 144 CPC the suit was not maintainable. According to the learned Counsel, in any view of the matter, the suit which was filed after 12 years from the date when the delivery of possession was effected, is hopelessly barred by limitation.

Accordingly the appeal is allowed with costs and the order passed by the trial court as also the sale held in the execution proceeding are set aside.

9. From the aforesaid order passed by this Court it is clear that although delivery of possession of auction sold property was taken by the defendants but that remained on paper only and the possession of the suit land actually remained with the plaintiffs at all point of time. Even assuming that by virtue of auction sale the defendants alleged to have come in possession of the suit property, but the auction sale having been set aside, the defendants cannot be allowed to become the owner of the property on the alleged plea of adverse possession. It is well settled that Section 144 CPC is not an exhaustive provision but there are various circumstances in which restitution is to be ordered to restore status quo ante for the ends of justice. The court has inherent power to grant restitution even in such cases where Section 144 CPC does not apply.