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1963 DIGILAW 227 (KER)

LEKSHMANAN v. GOVINDAN

1963-08-19

K.K.MATHEW

body1963
Judgment :- 1. The plaintiffs are the appellants. The suit was for a declaration of the plaintiffs' title and for recovery of possession of the property. They alleged that the plaint property belonged to their family and that the 3rd defendant's father was in possession of the same as a lessee of the family. On account of the disputes between the father of the 3rd defendant on the one hand and defendants 1, 2 and 4 on the other regarding the possession of the property, the Sub-Divisional Magistrate, Trivandrum, attached the property and put it in the possession of a Receiver under S.145 of the Criminal Procedure Code. The Magistrate, without deciding the question of possession, referred the parties to a civil suit for the adjudication of their rights. The 3rd defendant thereupon filed O. S. No. 89 of 1123 before the Principal Munsiff's Court of Trivandrum. That suit was subsequently compromised between the parties The case of the plaintiffs was that the compromise was not binding on them and that they were entitled to the possession of the property from the Receive with the profits collected by him. 2. The suit was resisted by the 1st defendant. He died during the pendency of the suit and defendants 6 to 9 are his legal representatives. The 6th defendant contended that the lease set up by the plaintiff was false, that she was in possession of the property in her own right from 1101, that she had perfected her title to the property by adverse possession and that she was entitled to get the property from the Receiver with the profits collected by him. 3. The trial court held that the plaintiffs had a subsisting title to the property and negatived the contention of the 6th defendant that she had prescribed a title to the property by adverse possession. The plaintiffs were, therefore, allowed to recover possession of the plaint property from the Receiver with the profits collected by him. Defendants 6 to 9 filed an appeal before the District Court of Trivandrum and the court came to the conclusion that the plaintiffs had no subsisting title, as they had not established their possession within twelve years before the date of suit. 4. Defendants 6 to 9 filed an appeal before the District Court of Trivandrum and the court came to the conclusion that the plaintiffs had no subsisting title, as they had not established their possession within twelve years before the date of suit. 4. It was argued for the appellants that the finding of the lower appellate court that the suit was barred by limitation is wrong, for the reason that the property was in the possession of the Receiver and that that possession was really the possession of the plaintiffs who are the true owners. The only question for consideration is whether the plaintiffs have proved their possession within 12 years of the date of the suit. The plaintiffs were not parties either to the proceedings under S.145 of the Criminal Procedure Code or to the civil suit filed by the 3rd defendant viz., O. S.89 of 1123. It was argued that the possession of the receiver, being the possession of the true owner, the plaintiffs had a subsisting title, even though they were not in actual possession. 5. Reliance was placed on the rulings reported in AIR. 1926 Calcutta 385, AIR. 1936 Oudh 387 and AIR. 1914 P. C. 243 for the proposition that the possession of a Receiver is the possession of the Court which appointed him and when a Receiver is in possession, his possession is the possession of the person who is found to be entitled to the property. In Eastern Mortgage and Agency Co. Ltd. v. Mahammed Fazlul Karim (AIR. 1926 Calcutta 385 at p. 392) the court observed: "The object sought by the appointment of a Receiver is the safeguarding of property for the benefit of those entitled to it. His possession is on behalf of and for the benefit of all the parties to the suit in which he is appointed, and is the possession of all the said parties according to their titles. The property in his hands is in custodia legis for the person who can make a title to it. The title of the real owner is in no way affected either in theory or principle by his appointment. The property in his hands is in custodia legis for the person who can make a title to it. The title of the real owner is in no way affected either in theory or principle by his appointment. He collects and receives the rents issues, and profits not upon his own title but upon the title of some persons, parties to the action." These observations relied on by the appellants do not help them, as they were not parties either to the proceedings under S.145 Crl. P. C., or to the suit in O. S.89/1123. 6. In Halsbury's Laws of England, Vol. 24, page 202, (Art. 362, it is stated that "the appointment of a Receiver does not save the rights of any persons, but the parties to the action in which the Receiver was appointed." At page 255 Art.489, it is stated: "Where the Court during the pendency of an action is in possession of property by a Receiver, the possession enures for the benefit of the party to the action, ultimately declared to be entitled, so that during such possession, time will run against, but not in favour of, a person who is a stranger to the suit." In Vol. XXXII, page 419 of the same Book, Art.683, it is observed: The possession by the receiver, though it necessarily displaces the possession of the owner or occupier to some extent for the purposes of the appointment, does not interfere with the rights and liabilities of the parties to the action in relation to strangers. It is not such an interruption of possession as prevents time running in favour of the defendant as against strangers to the action, though it does prevent it running in favour of strangers as against the party obtaining the appointment." Therefore I am not prepared to say that the possession by the Receiver was the possession of the plaintiffs although they may be true owners of the property. Secondly, there was a compromise decree in 0. S. No. 89/1123, and that decree was binding as between the parties to that suit. The person who was entitled to the property under the compromise decree must be deemed to have been in possession through the Receiver. I think, that the plaintiffs have not succeeded in proving that they were in possession of the property within 12 years before the date of the suit. The person who was entitled to the property under the compromise decree must be deemed to have been in possession through the Receiver. I think, that the plaintiffs have not succeeded in proving that they were in possession of the property within 12 years before the date of the suit. The view of the lower appellate Court is, therefore, correct and the appeal has to be dismissed. 7. In the result, this appeal is dismissed with costs. Dismissed.