An order respecting the possession of immovable property made under the Code of Criminal Procedure is a final order for the purpose of Article 47 of the Limitation Act, 1908.

JUDGMENT :- Plaintiff's suit was for declaration of title and recovery of possession. Title is based on a registered sale deed (Ex. 1) dated 11-4-1956 for a consideration of Rs. 1400 executed by defendant-2 on behalf of himself and his sons and defendant-1, the mother-in-law of defendant-2. Plaintiff's case is that from the date of purchase he was in possession. In 1957 defendant-3 started a proceeding under Section 144, Cr. P. C. which ended in his favour.

2. Defendants 1 and 2 supported the case of the plaintiff. Defendant-3 claimed the disputed land as his ancestral property and asserted that he and his ancestors are in possession for the last 20 years or so and that defendants 1 and 2 had no title or possession. It was further averred that the plaintiff had no possession within 12 years of the suit and in a proceeding under Section 145, Cr. P. C. between him and defendants 1 and 2, the land was delivered to him in 1952, and that no suit having been filed within three years of the final order, this suit is barred under Article 47 of the Limitation Act.

3. The suit was decreed by the learned Munsif on the finding that defendants 1 and 2 had a valid title which was conveyed to the plaintiff and that the plaintiff has possession within 12 years of the suit. In appeal, the learned Subordinate Judge recorded the following findings and dismissed the suit.

4. It is crystal clear from the evidence, both documentary and oral, on either side that the plaintiff has not acquired any title in the suit by virtue of his sale deed executed by defendant No. 2 who himself had no title and possession in it and defendant No. 3 is in possession of the suit land for more than 12 years prior to the institution of the suit. He however, held that the suit was not barred under Article 47 of the Limitation Act.

5. The second appeal is concluded by a pure finding of fact that defendant-3 was in possession of the disputed land for more than 12 years before the suit, and that the plaintiff or his predecessors in interest were not in possession within 12 years of the suit. The learned Subordinate Judge was, however, wrong in saying that the suit was not barred by limitation under Article 47.

6. The facts and circumstances relating to the applicability of Article 47, Limitation Act, may be clearly stated as the judgments of the Courts below are unsatisfactory in not discussing this aspect of the case and in not stating clearly even the relevant facts. In M. C. 11/1952 in the Court of the Special First Class Magistrate, Chatrapur, there was a proceeding under Section 145, Cr. P. C. between defendant-3 as the first party and defendant-2 as the second party. In M. C. 43 of 1951, which related to refund of Rs. 300, the value of the usufruct, deposited in Court during the pendency of the proceeding under Section 145, Cr. P. C. two applications (Exs. M and M/1) were filed on 26-8-1952. Ex. M was filed by defendant-2 clearly admitting that the disputed land was in possession of defendant-3 and that the possession should be delivered to him, defendant-2 having no rights therein. Ex. M/1 is the petition of compromise signed by defendants 2 and 3. Therein Survey Plots 332 and 336, which are the disputed land, have been mentioned. The compromise petition recited that defendant-2 would never go upon the land and the Rs. 300/- deposited in Court would be paid to the first party and the proceeding under Sec. 145, Cr. P. C. should be dropped and disposed of in terms of the compromise. On the same day the learned Magistrate passed the following order :

"Both parties have filed a petition today compromising the dispute. Before accepting the compromise it is necessary to know if there is still apprehension of breach of peace in respect of the disputed land".

A report was called for from the S. I. Purusottampur. On receipt of the order, the Magistrate passed the following order on 28-8-1952.

"Parties present. S. I.'s report received according to which there is no apprehension of b