JUDGMENT Iqbal Ahmad, J.
1. This appeal has been ably argued by Mr. Babu Ram Avasthi, but in spite of his able arguments, I remain unconvinced. The dispute in the case was with respect to grove No. 1553. This grove belonged in equal shares to two persons named Chedi Lal and Sheo Prasad. The plaintiff-appellant is the daughter and successor-in-interest of Chedi Lal. By means of a sale deed dated 14th September 1889, Sheo Prasad sold his half share in the entire grove to one Bansidhar who was a benamidar of the father of the defendant-respondents. The defendant-respondents are, therefore, the successors-in-interest of Sheo Prasad.
2. In the year 1916 dispute arose between Chedi Lal and the defendants' father as regards the possession of the southern half of the grove. The dispute culminated in proceedings under Section 145, Criminal P.C. The criminal Court held that the defendants' father was in exclusive possession of and had 'prima facie title' to the southern half of the grove and accordingly was entitled to retain possession of the same until evicted therefrom in due course of law. Neither Chedi Lal nor the plaintiff thereafter took steps to recover possession or joint possession of the southern half of the grove with the result that the defendants' father and after him the defendants remained in sole possession of the same till the date of the suit giving rise to the present appeal. The defendants cut some trees from the portion of the grove in their possession and this occasioned the suit under appeal. The plaintiff alleged that she was the sole owner of the entire grove and, accordingly, claimed a decree for recovery of the price of the trees cut by the defendants and further prayed for an injunction restraining the defendants from doing any act that may be prejudicial to the plaintiff's rights and from cutting the trees of the grove.
3. The defendants contended that they were the owners of a half share in the grove and that, by virtue of a private partition the southern half of the grove had been allotted to their share or, to be more precise, to the share of Sheo Prasad. They alleged that from the time of the sale of 1889 they and their predecessors-in-title were in exclusive and adverse possession of the southern half of the grove and the. plaintiff's suit was time-barred. In particular they contended that, in view of Article 47, Schedule 1, Limitation Act, the omission of the plaintiff's father and of the plaintiff to file a suit for possession or joint possession of the southern half of the grove within three years of the date of the order passed by the criminal Court had the result of extinguishing such rights as the plaintiff had in the southern half of the grove.
4. Both the Courts below agreed in holding that originally the plaintiff's share in the entire rove was only to the extent of half and that the partition alleged by the defendants was not proved, but the Courts below differed on the question of adverse possession raised by the defendants and the applicability of Article 47, Limitation Act. It is difficult to reconcile the finding of the trial Court on the question of adverse possession of the defendants over the southern half of the grove with the decree actually passed by it. It held that:
The fact remains that defendants' father had obtained possession over half of the grove and there is no satisfactory evidence that he or the defendants were ever evicted from the grove.
5. He accordingly concluded that:
Whatever may originally be the flaws in their title, they have matured it by long undisturbed possession.
6. In view of this finding I should have expected the trial Court to dismiss the plaintiff's suit, but actually it passed a decree in the plaintiff's favour for half of the price of the trees cut by the defendants from the southern half of the grove. As regards the contention of the defendants based on Article 47, Limitation Act, the trial Court held that the order of the criminal Court under Section 145 did not justify the conclusion that the Magistrate confirmed defendants' father's possession over the southern portion. Apparently, therefore, the trial Court held that Article 47 did not bar the suit. It, however, as observed above, passed a decree in the plaintiffs favour on account of half the price of the trees appropriated by the defendants and the defendants appealed in the lower appellate Court. The lower appellate Court gave effect to the contention of the defendants as regards the acquisition of title to the southern half by adverse possession for more than 12 years and also held that Article 47, Limitation Act, was a bar to the suit. It accordingly reversed the decree of the trial Court and dismissed the plaintiff's suit. In my judgment the decision of the lower appellate Court is perfectly correct and ought to be affirmed.
7. The order passed by the criminal Court has been read over to me and the only possible interpretation of that order is that the criminal Court affirmed the exclusive possession of the defendants' father over the southern half of the grove. That being so, it is clear that that order was against Chedi Lal, the plaintiff's father, and it was for him to take appropriate proceedings to get rid of the effect of that order. This he could do by means of a suit in the civil Court. The period prescribed by Article 47, Lim. Act, for a suit by a person bound by an order respecting the possession of immoveable property made under the Code of Criminal Procedure for the recovery of the property comprised in such order is three years from the date of the order. Admittedly neither the plaintiff nor her father brought a suit for the recovery of the southern half of the grove within three years from the date on which the order in the case under Section 145, Criminal P.C., was passed in favour of the defendants' father. The effect of the omission to institute such a suit was, in my judgment, in view of the provisions of Section 28, Lim. Act, to extinguish such rights as the plaintiff's father or the plaintiff had in. the southern half of the grove. It cannot be disputed that the order of the criminal Court was with respect to the "possession" of the southern half of the grove and, therefore, the defendants' father could only be evicted from the same on a suit for possession being brought either by Chedi Lal, or by the plaintiff. As no such suit was brought the plaintiff's right to the southern half of the grove was extinguished on the expiry of the period of three years from the date of that order.
8. The view that I take is not in consonance with the view taken by the Bombay High Court in Bhaguji v. Aniaba (1880) 5 Bom. 25, Shivarm v. Narayan (1880) 5 Bom 27, Parashram Jethmal v. Rakhma (1891) 15 Bom. 299 and Bhimappa v. Irappa (1902) 26 Bom. 146. In these cases the question arose, whether a joint owner of immoveable property, against whom an order contemplated by Article 47, Lim. Act, was passed, is or is not precluded from claiming his share in that property by means of a partition suit, even though he did not bring a suit within three years from the date of the order, and was answered in the negative. These decisions proceeded on the ground that a suit for partition of a property is not a suit "to recover the property" within the meaning of Article 47, Lim. Act, and that the words "to recover the property" imply a claim for the exclusive possession of the property and not a claim for obtaining a share of such property on the footing that the defendant...held it for himself and the plaintiff jointly.
9. In other words, it was held in these oases that a suit for partition is in fact and in substance a suit for the recovery of such portion of the property as the plaintiff may get on partition and is not a suit for the recovery of that property as a whole. It was emphasized in these cases that, as the statute of limitation is in limitation of common right, its provisions ought not to be extended by constructions to cases not clearly included within its terms. In short the view of the Bombay High Court is that Article 47, applies only when the suit is for exclusive possession of the property and not a suit for the plaintiff's share on partition. With all respect I am unable to agree with these decisions.
10. The phraseology of Section 28 and Article 47, Lim. Act, is clear and unambiguous. A fixed period of three years is given to a person against whom an order concerning the possession of immoveable property is passed by a criminal Court to bring a suit for the recovery of that property. If he fails to bring such a suit his right to the property is, by virtue of Section 28 of the Act, extinguished. The right that is extinguished is such right as the person against whom the order was passed by the criminal Court had in that property. It may be that he was the sole owner of the property or it may be that he had a joint share with the person in whose favour the order was passed. In either case his omission to institute a suit within the period of three years entails the extinguishments of his right, whatever the nature of that right may have been. If he was the sole owner of the property he loses the right of ownership and, similarly, if he had a right only as a co-sharer in the property his right as a co-sharer is extinguished. The words "to recover the property" in Article 47 in the context in which they occur can only mean that the {suit contemplated by that article is a suit for the enforcement of such right as the person bringing the suit had in the property comprised in the order passed against him. Similarly Section 28 is general in its terms and there is no warrant for restricting its scope to cases in which a person is the sole owner of the property and to exclude its applicability to cases in which a person is entitled not to exclusive but only to joint possession of the property. The contrary view would lead to-anomalous results. The person against whom the order referred to in Article 47 is passed cannot, if he was the sole owner of the property, bring a suit for the recovery of the property comprised in that order after the lapse of three years. But according to the decisions noted above if he was the joint owner of that property he, though barred from bringing a suit for joint possession, can still claim his share in that property by bringing a suit for partition. It is obvious that one can claim his share in the joint property only so long as he retains his right to that property. Once his right as a co-sharer is extinguished his right to claim a share in the property comes to an end. He cannot, therefore, by the decree in a partition suit be given a share in that property.
11. For the reasons given above I hold that the plaintiff's right even as a joint owner in the southern half of the grove was extinguished. Further the view of the lower appellate Court that the defendants prescribed title by adverse possession appears to me to be unassailable. According to the finding of that Court the defendants have been in exclusive possession of the southern half of the grove for more than 12 years. This possession was undoubtedly adverse to the plaintiff. The possession of the defendants is referable to the order passed by the criminal Court which was followed by ouster of the plaintiff from the southern half of the grove for a period of more than 12 years. This ouster was coupled with the denial of the plaintiff's right and, therefore, the plaintiff's right to the southern half of the -grove was extinguished. For the reasons given above I dismiss this appeal with costs.
12. Leave to appeal under the Letters Patent is granted.