Raj Kishore Prasad, J.
1. The only point which arises for determination on the present appeal, by defendants 2 and 3, is a question of limitation. The question is: is the plaintiff's suit barred by Article 47 read with Section 28 of the Limitation Act?
2. The court of appeal below, in disagreement with the first court, negatived the plea of limitation, and, held that the plaintiff's suit was not barred by limitation because Article 47 of the Limitation Act did not apply to the facts of the case. Mr. Justice Naqui Imam, who has referred this appeal to a Division Bench for decision, has also taken the same view in his order of reference.
3. For a proper understanding of the question of limitation involved in the present appeal, I may state briefly a few facts.
4. In 1938, there was a proceeding under Section 145 of the Code of Criminal Procedure in respect of 105.38 acres of land in village Rajbandha, which included the suit land, which is 16 acres only, to which the parties of the present suit were also parries.
5. Village Rajbandha belonged to Bhaiya Rudra Pratap Deo of Nagpur Untari, who is defendant 1 to the suit, and, at that time it was under the management of the Manager, Wards and Encumbered Estates. The entire bakasht lands were given in lease to Jageshwar Singh, who was second party 7 to the proceeding under Section 145, Criminal Procedure Code, and, a tenure was created in his favour. There was a triangular fight between the parties in the Criminal Court. The ancestors of the plaintiffs and defendants second party, defendants 6 to 9, who were amongst the other second party, to that proceeding, claimed to be in possession of the entire 105.38 acres of land as occupancy raiyats. Naurang Singh, ancestor of defendants 2 to 5, who was first party 4 to the Section 145 proceeding, claimed to be occupancy raiyat in respect of 16 acres out of these 105.38 acres of the disputed land by virtue of a settlement from Jageshwar Singh, the tenure holder. The landlord, the Manager, Wards and Encumbered Estates, who represented then the estate of defendant 1 and who was first party 7 to the Section 145 proceeding, claimed the entire area of the disputed land to be bakasht.
6. Section 145 proceeding was decided on 23rd February, 1939, in which Naurang Singh was held to be in continuous possession of 16 acres of land claimed by him for at least five years, and, therefore, his possession was maintained. In respect of the remaining portion of land, that is 89.38 acres (105.38 minus 16 acres of land,) the second parties, other than Jageshwar Singh, were held to be in possession thereof. The Manager, Wards and Encumbered Estates, representing defendant I, did not claim any actual cultivating possession Over any portion of the land.
7. In spite of the above adverse decision against the ancestors of the plaintiffs and defendants 6 to 9 in the Section 145 proceeding regarding 16 acres of land claimed by Nanrang Singh, no suit was brought for declaration of title to and recovery of possession in respect of these lands by any of them. On the basis of these facts, it was urged by the learned Advocate General, who appeared in support of the appeal, that the plaintiffs having failed: to bring a suit within three years of the decision in the proceeding under Section 145 of the Code of Criminal Procedure on 23rd February, 1939, against them, as required by Article 47 of the Limitation Act, the present suit brought on the 31st July, 1947, long after the expiry of the statutory period of limitation was barred by limitation, in that, not only the plaintiffs' remedy was barred, but also their title was extinguished, in view of the provisions of Section 28 of the Indian Limitation Act.
8. Subsequently, defendant 1, the proprietor, filed two title suits, one against the plaintiffs and defendants 6 to 9 -- Title Suit No. 10 of 1941 --which was ultimately dismissed; and another against Naurang Singh only -- Title Suit No. 1 of 1943. During the pendency of the latter title suit against Naurang Singh, he surrendered his rights in the disputed lands, namely, 16 acres, by a petition dated the 1st April, 1943, in favour of the plaintiff of that suit, namely, defendant 1 of the present suit. The plaintiffs and defendants 6 to 0, however, did not bring any suit against Naurang Singh or his heirs, defendants 2 to 5, in spite of the adverse decision against them upholding the possession of Naurang Singh as occupancy raiyat over the suit land in the proceeding under Section 145 of the Code of Criminal Procedure.
9. Prior to the institution of the present suit, there was a proceeding under Section 144 of the Code of Criminal Procedure between the plaintiffs and defendants 6 to 9 on one side and defendants 2 to 5 on the other, in which it was held that defendants 2 to 5 were in possession of the suit land, namely, 16 acres. Basing this adverse order as their cause of action, the plaintiffs brought the present suit, out of which the present appeal arises, for a declaration of their title and the title of defendants 6 to 9, to the land in dispute, namely, 16 acres out of 105.38 acres of land, which was the subject matter of dispute in the proceeding under Section 145 of the Code of Criminal Procedure in 1938. They claimed that they and defendants 6 to 9 were in possession of the disputed lands, that is, 6 acres of land, which were mentioned in schedule B of the plaint, and, that defendants 2 to 5 had no title to the said lands. It may be mentioned here that the title suit brought by defendant No. 1 against the plaintiffs and defendants 6 to 9 was dismissed by the High Court on the fnding that the plaintiffs and defendants 6 to 9, who were defendants to that suit, had title to and possession over the lands which were the subject matter of that suit, were namely, 89.38 acres, that is 105.38 acres minus 16 acres claimed by Naurang Singh.
10. The learned Munsif, who heard the present suit in the first instance, took the view that Article 47 of the Limitation Act was applicable to the case, and, therefore, the present suit by the plaintiffs, having been brought after the expiry of the statutory period of limitation provided by Article 47 of the Limitation Act, the plaintiffs' remedy was barred, and, their title was also extinguished under Section 28 of the Limitation Act, and, as such, the present suit by the plaintiffs was barred by limitation, and, accordingly, it was dismissed.
11. The court of appeal below, however, did not agree with the first court on the question of application of Article 47 of the Limitation Act to the present case, and therefore, it held that Article 47 of the Limitation Act cannot bar the plaintiffs' suit. On the interpretation of the order in the Section 145 proceeding, the court of appeal below held that the Magistrate, who decided that proceeding accepted that Naurang Singh was an under-raiyat of Jageshwar Singh, although he did not accept Jageshwar Singh's contention that he resumed the uuder-tenancy of Naurang Singh. The court of appeal below, therefore, held that Naurang Singh was an under-raiyat of Jageshwar Singh, and, consequently, the plaintiff's suit to resume the tenancy on the ground that the under-raiyat subsequently left the land was not barred under Article 47 of the Lim. Act,
12. In order to decide if Article 47 of the Limitation Act would apply to the present suit of the plaintiffs, it is necessary to know what was the claim of Naurang Singh and what was decided in the proceeding under Section 145 of the Code of Criminal Procedure regarding his claim.
13. It was argued by Mr. B. C. De, who appeared for the respondents, that the Magistrate who decided the dispute between the parties to the suit in the proceeding under Section 145 of the Code o Criminal Procedure found that Naurang Singh was an under-raiyat under Jageswar Singh, because, that was the claim set up by Naurang Singh himself, and, as such, the present plaintiffs or defendants 6 to 9 had no cause of action then to bring a suit against Naurang Singh, in that, they accepted Naurang Singh as an under-raiyat, and, as such, they were not aggrieved by the decision in the Section 145 proceeding so as to be obliged to bring a suit as provided in Article 47 of the Limitation Act. The plaintiffs were aggrieved only subsequently by the order in the proceeding under Section 144 of the Criminal Procedure Code, and, therefore, they were entitled to bring the present suit to eject defendants 2 to 5, the descendants of Naurang Singh, who were under-raiyats and liable to be ejected,
14. The learned Advocate General, however, in reply contested the above contention of Mr. De, and, submitted that this is not the correct reading of the order of the Magistrate in the Section 145 proceeding, because Naurang Singh claimed as an occupancy raiyat in respect of 16 acres of lands, and not as under-raiyat, and, therefore, the plaintiffs or defendants 6 to 9 were bound in law, if they wanted to get rid of that decision, to bring a suit for establishment of their title to the disputed land as occupancy raiyats within the period provided by Article 47, in that, the decision in the Section 145 proceeding was obviously a negation of the plaintiffs' right to these disputed lands as occupancy raiyats,
15. The deed giving lease of 105.38 acres of bakasht lands by defendant 1 to Jageshwar Singh is on the record. From reading of the document, it is absolutely clear that a tenure was created in favour of Jageshwar Singh, and, Jageshwar Singh, by taking lease of ihe entire bakasht lands appertaining to the proprietary interest of defendant 1, became a tenure holder and not a tenant, and, therefore, as a tenure-holder, if he settled lands with Naurang Singh, he would acquire the status of a raiyat, and not of an under-raiyat. The court of appeal below has proceeded on the footing that Naurang Singh became an under-raiyat by virtue of his settlement from Jageshwar Singh, and, on that reading obviously the learned Subordinate Judge, who decided the appeal, came to the conclusion that defendants 2 to 5 being under-raiyats it was open to the plaintiffs to eject them, and, therefore, the decision in Section 145 proceeding save the plaintiffs or defendants 6 to 9 no cause of action, if they accepted the Magisterial decision as correct, and accepted the position of Naurang Singh as under-raiyat. This view of the learned Subordinate Judge is obviously against the document by which tenure was created in favour of Jageshwar Singh and others. The order of the Section 145 proceeding clearly goes to show that the Magistrate only held that Naurang was continuously in possession of the land claimed by him, and, therefore, his possesion was upheld. On reading the order it appears that Naurang Singh did not claim as an under-raiyat; on the other hand, he claimed that he was in cultivating possession of the disputed lands from before the thica of Jageshwar Singh, that is from before 1331 to 1340 Fasli. The learned Magistrate found that Naurang Singh took settlement of the disputed lands from Jageshwar Singh, because Jageshwar Singh subsequently filed a rent suit against Naurang Singh for the lands settled with him, and, the suit was decreed against him.
The claim of Jageshwar Singh, however, that when Naurang Singh did not pay any rent, he resumed those lands was rejected, but the case of Jageshwar that Naurang Singh took settlement from him was upheld, Jageshwar Singh was not a raiyat of the disputed lands. He was a tenure-holder of the entire bakasht lands of defendant 1. In this view, therefore, if Naurang Singh took settlement of the disputed land from Jageshwar Singh, the tenure-holder, obviously he was getting the status of a raiyat and not an under-raiyat. The position, therefore, is that in the Section 145 proceeding, the ancestors of the plaintiffs and defendants 6 to 9 claimed as raiyats in respect of the entire 105.38 acres of land whereas Naurang Singh also claimed to be a raiyat in respect of 16 acres out of it. The Magistrate upheld the claim of Naurang Singh in respect of 16 acres and upheld his possession, and, rejected the claim of the plaintiffs and defendants 6 to 9 to be in possession as raiyats over these lands.
16. It is plain on the order of the Section 145 proceeding that the decision therein was against the ancestor of the plaintiffs and defendants 6 to 9, so far as their claim as raiyats to the disputed land also was concerned. This order, therefore, being against them, they were bound, if they desired to get rid of this order, to bring a suit within three years for establishing their title as raiyats to the suit lands and for a declaration that Naurang Singh or his heirs, defendants 2 to 5," were not raiyats in respect of the same. The supposition that Naurang Singh claimed as an under-raiyat will not stop running limitation against the plaintiffs when on the order it is clear that such claim was never made by Naurang Singh in the Section 145 pruceeding.
17. On this reading of the order, therefore, the question that arises is: Had the plaintiffs any cause of action, as contended by the learned Advocate General, for bringing a suit within three years of the decision of the Section 145 proceeding, as required by Article 47 of the Limitation Act? This question posed by me must be answered in the affirmative, and, therefore, there is no manner of doubt that article 47 applied to the present case.
18. As to what is the true test to determine when a cause of action has accrued to a plaintiff Mookerjee, J. in Dwijendra Narain Roy v. Jogesh Chandra De, AIR 1924 Cal 600 (A) observed:
"That substance of the matter is that time runs when the cause of action accrues and a cause of action accrues when there is in existence a person who can sue and another who can be sued, and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed .........The cause of action arises when and only when the aggrieved party has the right to apply to the proper tribunals for relief. . . .The statute does not attach to a claim for which there is as yet no right of action and does not run against a right for which judgment cannot be obtained. Consequently the true test to determine when a cause of action has acrrued is to ascertain the time when plaintiff could first have maintained his action to a successful result".
19. ''Cause of action" means the whole bundle of material facts, which it is necessary for the plaintiff to prove in order to entitle him to succeed in the suit. In delivering the judgment of the Board in Chand Kuar v. Pratab Singh, ILR 16 Cal 98 (PC) (B), Lord Watson observed:
"Now the cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the grounds set forth in the plaint as the cause of action, or in other words to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour."
20. Whether any particular facts constitute a cause of action has to be determined with reference to the facts of each case and with reference to the substance, rather than the form of the action. If an infringement of a right happens at a particular time, the whole cause of action will be said to have arisen then and there. In such a case, it is not open to a party to sit tight and not to bring a suit for declaration of his right, which had been infringed, within the time provided by the Limitation Act, and, allow his right to be extinguished by lapse of time, and, thereafter, to wait for another cause of action and then to bring a suit for establishment of his right which was not then alive, and, which had been long extinguished because, in such a case, such a suit would mean a suit for revival of a right, which had long been extinguished under the Lim. Act, and is, therefore, dead for all purposes. Such a suit would not be maintainable and would obviously be met by the plea of limitation under Section 28 of the Limitation Act.
21. Applying the above tests, therefore, to the present case, we find that the adverse order passed against the ancestor of the plaintiff and defendants 6 to 9 in the Section 145 proceeding gave a cause of action to the plaintiffs' ancestor or to the plaintiffs to bring a suit for getting the order under Section 145, Criminal Procedure Code, rescinded, and, therefore, the time began to run against them from then, when cause of action accrued. There was then a person who could sue and a person who could be sued. It must be remembered that the purpose of a suit of this description, as contemplated by Article 47 of the Limitation Act, is strictly limited; special period of limitation is prescribed for it.
22. In the instant case, it is impossible to maintain that time did not commence to run against the plaintiffs from the time of the order in the Section 145 proceeding, either because they were not then in a position to sue, or, that they had no enforceable cause of action, which could be extinguished by lapse of time. The last date, therefore, when the plaintiffs could have instituted a suit for a declaration that the Section 145 order was illegal and not binding on them, and that the disputed lands, namely, 16 acres of land, claimed by Naurang Singh, were their raiyati lands, and, not the raiyati lands of Naurang Singh, was 22-2-1942, which would be the last day of limitation on calculation as provided by Article 47 of the Limitation Act. In the present case, therefore, it is obvious that the plaintiffs, by bringing the second suit, wanted to revive their right to the disputed property, which had long become extinct by lapse of time.
23. It is well settled that where a person, in whose favour proceedings under Section 145, Criminal Procedure Code, have been decided, has been in possession of the disputed property for more than three years and no step is taken by the claimant to question the order under Section 145 and to evict the successful party within a period of three years as provided by Article 47, then not only the remedy is barred, but the title is also extinguished, even though the person in possession may hand over the possession of the disputed property to a third person.
24. The above view was taken by a Bench of this Court in Nando Kahar v. Sri Bhup Narain Singh, AIR 1935 Pat 164: ILR 14 Pat 424 (C), which has been relied upon by the learned Advocate General. In this case, Fazl Ali, J., as he then was, relied on two decisions of the Privy Council in Ganga Gobind Mundal v. Collector of Twenty Four Parganas, 11 Moo Ind App 345 (PC) (D) and Bhagwan Ramanuj v. Rama Krishna Bose, AIR 1922 PC 184 (E), and, after a review of the cases came to the above conclusion. I am in respectful agreement with the above statement of law of his Lordship.
25. Section 28 of the Limitation Act, in cleat terms, provides that after the expiry of the period prescribed for instituting a suit for possession of any property, the person, who should have instituted such suit but has failed to do so, shall cease to have any right to the property. There cannot be a revival of title of which there has been a statutory extinguishment. After the expiry of the period of limitation, the law declares not simply that the remedy is barred but that the title is also extinct in favour of the possessor.
26. Mr. B.C. De, in reply, relied on two Bench decisions: Bolai Chand Ghosal v. Samiruddin Mandal, ILR 19 Cal 646 (F), and W. Subbalakshmi Ammal v. Narasimiah, AIR 1927 Mad 586 (G). In my opinion, none of the cases touch the point at issue, and, therefore, they do not help Mr. De at all.
27. In the first case, it was held that a right to sue in ejectment did not exist at the date of the order under Section 145 of the Code of Criminal Procedure, and, in such circumstances it was held that Article 47 would not apply. Pigot, J. in negativing the contention that Article 47 applied to the case before their Lordships, observed:
"We think that the provision cannot apply, particularly having regard to the terms of Section 145, as it now stands, which contemplates an action in ejectment: Article 47 must refer to such a right of suit and a judgment under Section 530 of the Criminal Procedure Code, existing at the time of the passing of the order. We do not think a right to sue in ejectment existed at the time; no such suit could be brought until the lease was granted, and, as we have said, it is obvious that, so far from that right being possessed by Gobind at the time of the passing of the order under Section 530, the pottah which it was his legal right to get was not obtained, not until some time after, as the zemindar had persistently refused to grant it. We think it would not be within what we regard as the reasonable scope of Article 47 of the Limitation Act to apply it to this case".
28. In the second case, it was held that Article 47 had no application to a case where at the time when the Magistrate's order was passed under Section 145, Criminal Procedure Code, there was no existing right in the plaintiff to sue for possestion of the suit properties. In this case also, a patta had been executed in order to clothe the plaintiff with a right to sue, but the patta was executed subsequent to the passing of the order under Section 145 of the Code of Criminal Procedure. The just mentioned Calcutta case was followed by their Lordships of the Madras High Court, because that was the point which was under consideration also before them. Their Lordships observed:
"In the case before us at the time when the order by the Magistrate was passed the 1st plaintiff had no legal right to institute a suit in ejectment against the defendants. As he obtained such a right only after the passing of the Magistrate's order, Article 47 is not a bar to his present suit."
29. On an analysis of the above two cases, relied upon by Mr. De it will be found, on the other hand, that they also support the view that at the time when the Magistrate passes his order under Section 145 of the Code of Criminal Procedure against the plaintiff, his right to sue in ejectment accrues in his favour then. He must bring a suit within the statutory period provided by Article 47, and, if he does not do so, the suit will be barred under Article 47 of the Limitation Act. If, however, when the Magisterial order was passed, the plaintiff had no legal right to institute a suit in ejectment against the defendants, and, he obtained such a right only after the passing of the Magistrate's order, then in such a case, of course, Article 47 would not bar the subsequent suit.
30. In the present case, as I have already held, the plaintiffs' claim, that they were occupancy rai-yats also in respect of the suit lands, was not accepted, because the claim of Naurang Singh to be in possession of these suit lands as occupancy tenants was upheld, in that, he was found in possession of these 16 acres of land by virtue of a settlement from Jageshwar Singh. In these circumstances, there is no manner of doubt that the plaintiffs had cause of action at the time when the Magisterial order was passed, and, limitation began to run against them from that date, and, consequently, their present suit for declaration of their right, which, in law should be considered to be dead, could not be permitted to be instituted for revival of their right which has become extinct by lapse of time in favour of the defendants.
31. Article 47 applies to a case in which the Magistrate has declared one of the parties to be entitled to possession until evicted therefrom in due course of law or has restored possession to a party found to have been forcibly and wrongfully dispossessed within two months of his final order. The policy of the Article in curtailing the period of limitation for a suit for possession from the usual period of 12 years to the shorter period of three years is that when a judicial order under the Criminal Procedure Code has been passed by a Magistrate respecting the possession of immovable property then a person bound by the order must bring his suit to recover the property comprised in such order within the shorter period. It is clear from the language of Article 47, that the nature and scope of the suit intended to be comprised in this Article must be one whose principal object is to set aside the effect of the summary order of a Magistrate with regard to possession in the interest of the public peace. This article prescribes a period of three years for a suit by a party against whom possession has been found under Section 145 oi the Criminal Procedure Code. This article has no relation to any portion of the order of the Criminal Court which has no reference to the question of possession.
32. In the present case, the order passed under Section 145 of the Criminal Procedure Code was clearly an order declaring the possession of Naurang Singh and negativing the possession of tile plaintiffs over the disputed land, and, as such, it was against the plaintiffs. The present suit being a suit for possession of the lands declared to be in possession of Naurang Singh was in form and in substance instituted with the principal object to get rid of the effect of the summary order of the Magistrate under Section 145, Criminal Procedure Code, although in the garb of a suit to remove the cloud thrown on the supposed title of the plaintiffs by the Section 144 order passed subsequently, notwithstanding the fact that this alleged right was dead, and gone, long ago, and, both the title and remedy of the plaintiffs had long been extinguished under Section 28 of the Limitation Act.
33. It is true Article 47 of the Limitation Act does not apply where there has been no order for possession by the Magistrate under Section 145, Criminal Procedure Code, and, "if the suit is one for a declaration of title only, to such a case Article 120 of the Limitation Act would apply, Jagatjit Singh v. Raja Partab Bahadur Singh, AIR 1942 PC 47 (II). But here, there is an order for possession by the Magistrate under Section 145, Criminal Procedure Code, against the plaintiffs and in favour of Naurang Singh, the ancestor of defendants 2 to 5, and the present suit is not only a suit for a declaration of their title to the property in possession of the defendants, but also for recovery of possession of the same. In such circumstances, Article 47 of the Limitation Act is the only article which would apply to the present case. Admittedly, the ancestors of the parties to the present litigation were parties to the proceeding under Section 145, Criminal Procedure Code, in respect of the disputed property, and therefore, their ancestors as well as the present parties to the suit were bound by the Magisterial order passed therein.
34. For the reasons expressed above, I would hold that Article 47 applied to the present case, and, therefore, after the expiry of the limitation provided by Article 47 of the Limitation Act, not simply the plaintiffs' remedy was barred, but also their title was extinct in favour of the defendants, in view of the provisions of Section 28 of the limitation Act. It follows, therefore, that the plaintiffs' suit was barred by limitation, and, therefore, it had been rightly dismissed by the first Court and wrongly decreed by the Court of appeal below.
35. In the result, the judgment and decree of the Court of Anneal below are set aside, and, those of the learned Munsif are restored, and, the plaintiffs' suit is dismissed. In the circumstances of the present case, however, there will be no order for costs of this Court.
36. I agree.