Kunhi Amma v. Narayana Pillai — 1951 DIGILAW 70 (KER)

Judgment :- 1. Two points were urged before us in this second appeal by the defendant (defendant 2) in a suit for declaration as to title and for recovery of possession of an item of immovable property. 2. The plaintiff-respondent purchased the property at the court auction sale held in execution of the decree in O.S. 2249 of 1102, on the file of the District Munsiff's Court, Trivandrum. The tarwad of the defendants in that suit held the property on kanom tenure and the appellant, a member of that tarwad, was defendant 4 in the suit. That suit was one instituted by the jenmi of the property to recover arrears of michavaram and other dues. The purchase the plaintiff respondent made at the execution sale was confirmed on 6.5.1104. What was put up for sale was, of course, only the kanom right of the tarwad. Ext. A, delivery receipt shows that the court delivered the property over to the auction-purchaser on 25.2.1113. Meanwhile on 20.2.1112 there was a partition in the tarwad of the defendants in O.S. 2249 and among other items the suit property was allotted to the share of the appellant. The execution sale was completely left out of account in effecting the partition. On the same day the partition deed was executed the appellant executed an otti deed in respect of the plaint property in favour of defendant 1 and the appellant's case is that defendant 1 continued to be in possession thereafter, no actual transfer of possession having taken place under Ext. A. The plaintiff instituted this suit in 1118 alleging that the two defendants to it had trespassed upon the property in 1117 and claimed a declaration as to his title and also sought to recover possession. Soon after the suit was instituted defendant 1 surrendered the property to the appellant, defendant 2. The trial court discountenanced the case of trespass but at the same time upheld the validity of the execution sale and gave a decree in favour of the plaintiff to recover possession. On appeal by the present appellant before the Trivandrum District Court, the learned temporary Second judge set aside the Munsiff's decision and remanded the case for a trial de novo. On appeal by the present appellant before the Trivandrum District Court, the learned temporary Second judge set aside the Munsiff's decision and remanded the case for a trial de novo. The plaintiff took the matter before the High Court in C.M.A. 147 of 1124 and by the decision given there, on 15.3.1950, to which one of us was a party, the order remanding the case to the trial court was set aside and the District Court was directed to re-hear the appeal and dispose of it according to law. The present second appeal is against the revised decision of the District Court by which Munsiff's decree in favour of the plaintiff was affirmed. 3. The two points raised before us in the second appeal were: (i) Whether under the execution sale in O.S. 2249 of 1102 the plaintiff had obtained a valid title to the property? and (ii) Whether the suit was barred by limitation? To appreciate the appellant's arguments on point (i) it is necessary to state a few more facts. The appellant's brother one Sivarama Pillai, deceased, was the son-in-law of the plaintiff-respondent. During his life-time he was in possession of the tarwad properties and the appellant's case is that michavaram and other dues forming the subject of the suit in O.S. 2249 were payable by Sivarama Pillai, that the execution sale was brought about collusively to defeat the tarwad and that Sivarama Pillai was the real purchaser, the respondent only lending his name to the purchase. The learned Counsel for the appellant also stated that the partition in the appellant's tarwad referred to earlier was effected some seven days after Sivarama Pillai died, that Sivarama Pillai's wife is a party to it, that the moving figure behind the partition arrangement was her father, the present respondent, and that the conduct of the parties in treating the suit property as a partible item showed either that the respondent did not want to stand by his purchase or that there was fraud on his part in including this item among the properties allotted to the appellant. As for the first part of the contention under this head there is absolutely no material to show that the respondent's purchase was for and on behalf of Sivarama Pillai or that it was made with Sivarama Pillai's money either. As for the first part of the contention under this head there is absolutely no material to show that the respondent's purchase was for and on behalf of Sivarama Pillai or that it was made with Sivarama Pillai's money either. It would also appear that the validity of the sale has been the subject of more than one court proceedings in all of which the appellant was worsted and in our opinion it is too late in the day now to seek to resuscitate the controversy. There is no material either to substantiate the second part of the contention raised under this head. The evidence in the case does not show that the respondent had any active part in bringing about the partition in the appellant's tarwad. If one of the items set apart to the appellant's share was not tarwad property when the partition was effected it is up to her to seek her remedy in appropriate proceedings. But that cannot be pleaded in defence to the plaintiff's action founded on his title derived from the execution sale in O.S. 2249 of 1102. The first ground urged in the appeal is therefore without any substance. 4. The second ground is based on certain misapprehensions regarding the facts of the case. The appellant's counsel contended that as the suit was brought only in 1118 (6.6.1118) more than fourteen years after the confirmation of the sale on 6.5.1104 the suit for declaration as to title and recovery of possession was time barred. When the suit includes the recovery of possession also a twelve years' period is admittedly available to the plaintiff, but the dispute here is, when that period started. According to the appellant Art. 138 (Art. 126 of the Travancore Limitation Act) is the applicatory provision while the respondent would have it that he has twelve years from the date of the delivery in his favour on 25.2.1113. In other words according to him Art. 142 or 144 (Art. 130 or 132 of the Travancore Limitation Act) applies to the case. Art. 138 of the Indian Limitation Act applies to a suit by a purchaser at a sale in execution of a decree when the judgment debtor was in possession at the date of the sale and it provides a period of twelve years for such suits from the date when the sale becomes absolute. Art. 138 of the Indian Limitation Act applies to a suit by a purchaser at a sale in execution of a decree when the judgment debtor was in possession at the date of the sale and it provides a period of twelve years for such suits from the date when the sale becomes absolute. On the face of the language of the Article it has no application to a suit when the auction-purchaser has obtained through court actual or constructive delivery of the property. This position is well established by authority. See Agarchand Gumanchand v. Rakhma Hanmant (1888) I.L.R 12 Bom. 678; Gopal v. Krishna Rao - (1901) I.L.R. 25 Bombay 275 at 280; Ram Prasad v. Bakshi Prasad - A.I.R. 1932 Pat. 145 and Balagobind Prasad v. Lila Kuer - A.I.R. 1946 Patna 202. When an auction-purchaser after obtaining actual or symbolical delivery brings a fresh suit to recover the property from the possession of the judgment-debtor or from one holding the same, under the latter, his suit is qua owner and not qua auction-purchaser. Here Ext. A has intervened between the confirmation of the sale and the suit for possession. 5. The appellant's Counsel added a rider or qualification to his contention that Art. 138 applies to the case. What was urged was that this was a case in which the auction-purchaser while entitled to actual possession asked for or obtained only constructive or symbolical possession and that in as much as a form of delivery not appropriate to the case was resorted to the entire delivery proceedings was a nullity. According to the appellant instead of obtaining actual possession under O. XXI R. 95 possession was obtained only under R. 96. When delivery was sought judgment-debtor No. 4 (the appellant) or a person who claimed the property (defendant 1) under her was in possession. There is no doubt a school of thought which takes the view that in such cases the starting point is the date of the confirmation of the sale and not the date of the delivery. See Mahadev Sakharam v. Janu Namji Hatle (1912) ILR 36 Bom. 373 (F.B.) and Jang Bahadur Singh v. Hanwant Singh - AIR 1921 All. 9 (F.B.). See Mahadev Sakharam v. Janu Namji Hatle (1912) ILR 36 Bom. 373 (F.B.) and Jang Bahadur Singh v. Hanwant Singh - AIR 1921 All. 9 (F.B.). The balance of judicial opinion however is in favour of the view that even symbolical or constructive delivery when the judgment-debtor is in actual possession would interrupt the running of time against the auction-purchaser and that such delivery would give a fresh cause of action or furnish a fresh starting point. See U.N. Mithra's Law of Limitation, 1950 Edn. Vol. II pp. 837-841 and also Chaithu Muhammathu Abdul Kadhiru v. Meeravu Athulla - 29 TLR 166. We do not however have in this case to decide which among the two schools of thought represents the correct view on the question Ext. A clearly shows that there is absolutely no scope here for this controversy as under it actual or direct possession was given to the auction-purchaser. The auction-purchaser passes the receipt to the Amin of the court on that basis and the Amin's report is also to the effect that the auction-purchaser was put in actual possession of the property. The appellant's learned Counsel was therefore seeking to raise in this case a controversy not warranted by the documentary evidence in the case. 6. A further point was raised that assuming Ext. A purported to give actual possession, possession had as a matter of fact not changed hands under it and that therefore the so-called delivery does not extend the period of limitation by a further period of 12 years. The trial court has found that the trespass alleged was not true and the appellate court when the case came before it on the second occasion proceeded to judgment without giving a decision on it. Counsel's argument was that as the alleged trespass was found against, notwithstanding Ext. A possession continued to be with defendant I and that when twelve years had expired after the purchaser obtained title a suit by him to recover possession was barred by time. As pointed out by C. Raman Tampi, J. in Devasvya v. Aiyappan - (1936) 26 TLJ 53 the argument betrays a lack of proper understanding of the principles of the provisions of the Civil Procedure Code regarding the delivery of properties through court in execution or pursuant to a sale certificate. As pointed out by C. Raman Tampi, J. in Devasvya v. Aiyappan - (1936) 26 TLJ 53 the argument betrays a lack of proper understanding of the principles of the provisions of the Civil Procedure Code regarding the delivery of properties through court in execution or pursuant to a sale certificate. After referring to the two forms of delivery as contemplated by 0.21 R.35 and 36, (Tr.) the learned judge went on to say as follows: "In both these cases the officer entrusted with the execution of the warrant is bound to make a report to the court either that it has been executed or that it has not been done owing to particular reasons (vide R. 23 of 0.21). If a report is made by the Amin that the procedure prescribed by Rr. 33 an 34 has been carried out, it must be presumed that delivery has been effected of the property. R.92 and 93 of 0.21, relate to delivery of properties purchased in execution of a decree. In the case of properties in the occupancy of the judgment debtors or of some person claiming under him the purchaser should be put in actual possession. In the case of properties in the possession of a tenant or other person not bound by the decree, delivery has to be effected by a copy of the warrant being affixed in some conspicuous part of the property or by delivering it to the party entitled to its possession. The delivery contemplated under Rr. 34 and 93, as distinguished from the delivery contemplated under Rr. 33 and 92 is styled "symbolical delivery". In the case of "symbolical delivery" the property cannot be actually delivered over. But in the case of Rr. 33 and 92 the delivery contemplated is effected by putting the party in actual possession. The expression "formal delivery" used by the learned judge is unknown to the provisions of the Civil-Procedure Code. In the present case there is no question of symbolical delivery, as on the date of the order of delivery evidenced by Ext. F the defendants 1 and 2 were in actual possession. So the delivery here was in pursuance to R.33 of 0.21. In Narayanan Narayanan v. Udayan Raman Narayanan - 26 TLR 239 a similar question was considered. In the present case there is no question of symbolical delivery, as on the date of the order of delivery evidenced by Ext. F the defendants 1 and 2 were in actual possession. So the delivery here was in pursuance to R.33 of 0.21. In Narayanan Narayanan v. Udayan Raman Narayanan - 26 TLR 239 a similar question was considered. There a decree-holder sold and purchased a mortgage right of the defendants in that suit and in execution the decree-holder was put in possession of the property sold. On the ground that the defendants therein trespassed on the property after delivery a suit was brought by the auction-purchaser for recovery of the property. Delivery was refused on the ground of limitation. The finding there was that the defendants were not in actual possession of the property on the date of the alleged delivery. As the suit was brought more than 12 years after delivery it was held that the suit was barred by limitation. The law on the delivery of properties in execution was considered in that case. It was held that symbolical delivery of possession was good against the defendant, and if he still continued in actual possession he may be evicted in a separate suit. Here again I have to respectfully state that the words "symbolical delivery of possession" cannot be applied when the defendant was in actual possession. But anyhow the decision is an authority for the proposition that, in either case of actual possession or symbolical possession, a suit brought within 12 years of delivery of possession is not barred by limitation. Another case in relation to this question is the one in Chaithu Muhammathu Abdul Kadiru v. Meeravu Athulla 29 TLR 166. There the property was sold in execution and purchased by the decree holder. The auction-purchaser obtained delivery through court. But before the date of the delivery defendant had transferred the property to another person. Alleging that the defendant trespassed on the property plaintiff brought a suit for recovery of the property. The trial court dismissed the suit but the District Judge on appeal allowed the suit on the ground that, though the defendant was not in possession on the date of delivery, the plaintiff was entitled to recover the property within 12 years on the strength of the symbolical possession obtained by the plaintiff. The trial court dismissed the suit but the District Judge on appeal allowed the suit on the ground that, though the defendant was not in possession on the date of delivery, the plaintiff was entitled to recover the property within 12 years on the strength of the symbolical possession obtained by the plaintiff. In that case also the law bearing on the question of delivery of possession in execution was elaborately considered. It was held that a suit brought within 12 years is not barred by limitation or adverse possession whether it was actual possession contemplated by the provision in the Civil Procedure Code corresponding to the present R.33 of 0.21 or symbolical possession contemplated by the provision corresponding to the present R.34 of 0.21. In re Raman Velayudhan - 33 TLR 67 it was a prosecution under S.440 of the Penal Code for an alleged trespass on a land delivered in execution. That was a case in which the property was actually delivered. Raman Menon, C.J., said as follows:- "The effect of delivery in execution of a decree for immovable property in the mode prescribed by law is to vest legal possession in the decree-holder as between himself and the person or persons against whom the decree has been passed. If, therefore, after the delivery the judgment-debtor remains or goes on the property without the permission of the decree-holder he commits trespass". In Ram Krishna v. Emperor - AIR 1922 Pat. 197 it was held that when the Amin puts the auction-purchaser in possession of the property and the formalities of law are complied with the delivery is complete and thereafter the possession of the judgment-debtor is that of a trespasser." Much to the same effect are the observations Daniels, J. made in Harpal Kurmi v. Mohan Kurmi - A.I.R. 1924 All. 844. There as in this case the warrant of delivery purported to convey actual possession. The finding of the court was that notwithstanding the same the defendants never really gave up possession. The question for decision was whether delivery of possession under the decree interrupted adverse possession and gave a fresh starting point for limitation. 844. There as in this case the warrant of delivery purported to convey actual possession. The finding of the court was that notwithstanding the same the defendants never really gave up possession. The question for decision was whether delivery of possession under the decree interrupted adverse possession and gave a fresh starting point for limitation. The decision was that it did and in coming to that conclusion the learned judge observed: "Here the dakhalnama purported to give actual possession, which was the appropriate mode of relief though in the sequel it proved that the procedure adopted was not really effective. This must often be the case. An Amin goes down to the spot and hands over possession to the decree-holder the judgment-debtor keeping away. As soon as the Amin and the decree-holder have gone the judgment-debtor quietly resumes possession. It would be destructive of all respect for law and authority of the court if it were held that in such cases the judgment-debtor could treat the delivery of possession as a nullity and claim to be in adverse possession from the date of his original entry on the land. The suit has been rightly decided by the courts below and I dismiss the appeal with costs." 7. This case was decided by a Single Judge, but the learned judge's observations have been quoted with full approval by a Division Bench of the Madras High Court (Waller and Madhavan Nair, JJ.) in Kamayya v. Mahalakshmi - A.I.R. 1927 Mad. 849. There, it was a case where the circumstances warranted actual possession being taken pursuant to a decree for possession but it so transpired that what was effected was no more than a formal delivery of possession. The decree-holder waited for nearly twelve years after that and then sued for possession. The defendants had remained in possession both before and after the delivery, for a total period of about twenty years and the question was whether the suit was barred by limitation. The decision went against the view taken by the Bombay and Allahabad Full Bench cases referred to earlier but what is important for our present purpose is that the observations Daniels, J. made in A.I.R. 1924 All. 844 (at 845) and quoted above have been quoted with full approval. The decision went against the view taken by the Bombay and Allahabad Full Bench cases referred to earlier but what is important for our present purpose is that the observations Daniels, J. made in A.I.R. 1924 All. 844 (at 845) and quoted above have been quoted with full approval. This Madras case refers to a number of decisions which take a view different from the view taken by the Bombay and Allahabad Full Benches. It interprets that view as running counter to the view the Privy Council took in Radhakrishna v. Ram Bahadur - AIR 1917 PC 197. 8. Before concluding we think it worthwhile to refer in more detail to one of the decisions already mentioned viz., A.I.R. 1932 Pat. 145. There the possession the auction-purchaser obtained was only constructive even though he was entitled to obtain actual possession. But Wort, J., one of the learned judges who took part in the decision of that case, thought that an immaterial circumstance. The reason he gives for that really appeals to us and we shall quote here the relevant passages from his judgment: "Now the only question therefore that really arises in this case is whether the adverse possession ran from 12th December, 1908, the date of the sale or March, 1912 when the sale was confirmed or 22nd January 1915 when the writ of delivery was taken out by the plaintiffs. Quite clearly it was not on 12th December, 1908 which was merely the date of the sale, confirmation of the sale having taken place three years later as I have stated in 1912. The real competition is between the date of the confirmation of the sale in 1912 and the writ of delivery of possession in 1915. Now quite apart from authority, it seems to me clear that in any sense of the world the title of the defendants cannot be said to be adverse until such a time arrived when the plaintiff attempted to enforce his rights under the sale. That clearly was in January, 1915. Now quite apart from authority, it seems to me clear that in any sense of the world the title of the defendants cannot be said to be adverse until such a time arrived when the plaintiff attempted to enforce his rights under the sale. That clearly was in January, 1915. Once having decided that point, the matter, in my judgment becomes clear and the only conclusion at which I can arrive is that the learned District judge was right in saying that the plaintiffs were within time when they brought their action 1927." Mohammad Noor, J. who was the other judge who participated in the decision of that case discussed the whole question at greater length. The contention was that during the entire period the defendant was in possession, that is since the purchase of the plaintiff in 1908, up till the institution of the suit in 1927, the possession of the defendant was adverse to the plaintiff. The concluding portion of the learned judge's judgment can with advantage be quoted here. "Now when once the Court put the plaintiff's predecessor-in-interest in possession of the property and the defendant continued in possession of it in spite of this delivery of possession, it is then and then only that the possession of the defendant becomes adverse. The plaintiff could not have gone and taken possession of the property either at the sale or even after the confirmation of it unless the Court put him in possession and therefore in my opinion the possession of the defendant was adverse from the date of the delivery of possession " .......................................... 9. The argument, the suit was barred by time is therefore equally unsustainable as the appellant's first point. This Court had expressed the same view at an earlier stage of the case in C.M.A. 147 of 1124. The judgment in that case states: "The court sale if good had put an end to the title of defendant 2 and her tarwad to the property If the sale be held good the delivery even though nominal had perfected the plaintiff's title to the property and to give relief to him on the strength thereto a decision in his favour as to trespass was really unnecessary." The second appeal fails in the result and it will stand dismissed with costs. Dismissed.