Satish Chandra, J. - (1.) THE question is whether the claim of the Appellants for the ejectment of the Respondents Under Section 209 of the UPZA and LR Act was barred by limitation, on the date when notification Under Section 4 of the U.P. Consolidation of Holdings Act was issued qua the land in dispute.
(2.) IT appears that the land in dispute was attached Under Section 145 Code of Criminal Procedure on 8 -5 -1958, by a preliminary order passed by a Magistrate. The dispute was referred for decision to the Civil Court Under Section 146 Code of Criminal Procedure. The Civil Court gave a finding that the Respondents were in possession on the relevant date. Thereupon the possession of the plots was released in favour of the Respondents on 29 -1 -1960. The notification Under Section 4 of the Consolidation of Holdings Act was published somewhere in 1965. Objections as to title were raised by the parties in consolidation proceedings. The Dy. Director ultimately held that the adverse possession of the Respondents would commence only from 29 -1 -1960 when possession was delivered to them by the criminal court. The possession of the criminal court between 8 -5 -58 and 29 -1 -1960 will not enure to the benefit of the Respondents. On this view it was held that the six years period of limitation for a suit Under Section 209 did not expire by the time the notification under the Consolidation of Holdings Act was issued and, therefore, the title of the Appellants did not extinguish. Aggrieved, the Respondents filed a writ petition in this Court. A learned Single Judge held that as the land was in the custody of the criminal court between 8 -5 -1958 and 29 -1 -1960, the court must be deemed to have been holding possession on behalf of the person eventually found to be entitled to possession. On this view, coupled with the finding that the Respondents had been in possession even from before the date of the preliminary order, it was held that they will be deemed to have remained in possession without any break and so they completed the requisite period of possession by 30 -6 -1964 i.e. before the consolidation operations commenced and the title of the Appellants extinguished. On this view the writ petition was allowed and the Dy. Director's order was quashed.
(3.) FOR the Appellants it was urged that the possession of the criminal court shall enure for the benefit of the true owner. In support reliance was placed upon the decision of a Division Bench of the Calcutta High Court in Sarat Chandra Maiti v. Bibhabati Debi Vol., 66 Indian Cases 433. In that case it was held that when property is attached Under Section 146 Code of Criminal Procedure it vests in the legal custody and during the continuance of the attachment such custody is for the benefit of the true owner. If the true owner was in fact in possession when the attachment was effected, his possession in the eye of law is not interrupted. If, on the other hand, the wrong doer was in possession at the time when the attachment took place, the effect of the attachment is to interrupt his possession and from the moment of attachment the possession of the true owner revives in the eye of law. The intervention of the public authorities for the preservation of peace operates in the same way as his major of a flood and the constructive possession of the land is thereafter, if any to remain in the true owner. The view taken by the Calcutta High Court is to some extent supported by the decision of the Supreme Court in Ittyavira Mathai v. Varkey : AIR 1964 SC 907. In that case the trespass commenced somewhere after 12 -7 -1099; the order Under Section 145 Code of Criminal Procedure was passed on 28 -11 -1111 by the Magistrate and the finding was that the trespasser was in possession. Against the Magistrate's order there was a revision to the High Court which was dismissed on 15 -2 -1113. Ultimately the suit for possession was filed on 4 -3 -1118. The Supreme Court held that the suit was a simple one for recovery of possession from a trespasser and would be governed by the 12 years rule of limitation. It held that the suit was within time on the view: As we have already pointed out, after the application was made by the Respondents Under Section 145, 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. From the material itself, it is apparent that even on the basis of 12 years period of limitation the suit will be within time if the possession of the receiver enures for the benefit of the Plaintiff of that suit and not otherwise. It is thus clear that the terms "successful party" was used by the Supreme Court to denote the party who has been found to be having title to the plots, as contradistinguished from a trespasser.;