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1965 DIGILAW 279 (KER)

OUSEPH v. PHILOMENA

1965-09-27

M.MADHAVAN NAIR

body1965
Judgment :- 1. Second appeal by defendants 9 and 12. The suit property belonged to Ouseph, who left behind him two sons, Ouseph (junior) and the 12th defendant. Defendants 1 to 11 are the legal representatives of Ouseph (junior). 2. For a decree obtained against the 12th defendant the plaintiff's mother purchased in court auction the 12th defendant's share in the property, and on 25121120 the plaintiff had symbolical delivery of possession thereof by court. She instituted this suit on 20121132 for partition of her moiety in the property thus obtained. The 9th defendant remained ex parte at the trial; and the 12th defendant contended the suit to be barred by limitation. The Munsiff over-ruled the contention and decreed the suit and that has been affirmed by the Subordinate Judge. Defendants 9 and 12 have come up in second appeal. 3. It must be said at the outset that in the share of the 12th defendant sold to the plaintiff's late mother, the 9th defendant is not shown to have any interest. The decree appealed against is only a preliminary decree in partition, declaring the moiety of the 12th defendant to have vested in the plaintiff and directing separation of the same. The 9th defendant cannot be aggrieved by the decree and is therefore incompetent to file this second appeal. 4. It is not disputed that the 12th defendant's moiety has been sold to the plaintiff by Court. That sale was confirmed on 19 111117. The contention is that the plaintiff's right to partition of the property arose on 19 111117, wherefore the suit instituted beyond 12 years of that date is barred by limitation. The contention obviously ignores the symbolical delivery of possession given by Court on 25121120. In Shripat Raoji Maruthi v. Dattatraya AIR. 1957 Nag. 24 where facts were almost identical, Hidayatullah, C. J. and Kotval J. held: "It is quite clear that if there had been no grant of symbolical possession the suit as filed would have been hit by Art.138, unless it was saved by S.16 of the Act. The question is whether by taking out execution of his decree and by an application under 0.21, R.95, Civil P. C., or in other words by obtaining symbolical possession, limitation for the suit was saved. The question is whether by taking out execution of his decree and by an application under 0.21, R.95, Civil P. C., or in other words by obtaining symbolical possession, limitation for the suit was saved. Alternatively, it is a matter for consideration whether in view of the grant of symbolical possession the present suit can be said to fall within Art.144. After the decision of their Lordships of the Privy Council in 'Radha Krishna v. Ram Bahadur. AIR. 1917 PC. 197 (2) there can be no manner of doubt that symbolical possession is also possession within the meaning of the Indian Limitation Act' In our opinion, the Court which holds an auction sale is not incompetent to put the purchaser into possession of what he has got. Order "21 does not make any distinction between sales of whole properties or shares in them, and the grant of joint possession is warranted not only by the practice of Courts but also by the existence of numerous authorities in support thereof. Indeed their Lordships of the Privy Council, when they placed symbolical possession on a par with ordinary and actual possession, were showing that joint possession, which is normally granted to purchasers of a fraction is good possession for the purposes of the Indian Limitation Act. In our opinion, Dhyanoba having obtained possession through the agency of the Court under his auction sale, was entitled to bring a suit under Art.144, or, alternatively, under Art.142, if he was either excluded from possession or was ousted from it. The suit was filed on the opening day of the Court after vacation, and S.4, Limitation Act applies. The suit is therefore within time." I am in respectful agreement with the above reasoning. The dictum in Sri Radha Krishna Chanderji v. Ram Bahadur AIR. 1917 P.C 197(2) is clear that as regards parties to the proceedings symbolical delivery of possession is as effective in law as actual delivery of possession. The Judicial Committee observed: "In the High Court and before their Lordships it was further argued that symbolical possession would not avail against the defendants, but that only actual dispossession would interrupt their adverse possession. The High Court, following a decision of the Full Bench in Jugobundhu Mukerji v.Ram Chandra Bysack (5 Cal. The Judicial Committee observed: "In the High Court and before their Lordships it was further argued that symbolical possession would not avail against the defendants, but that only actual dispossession would interrupt their adverse possession. The High Court, following a decision of the Full Bench in Jugobundhu Mukerji v.Ram Chandra Bysack (5 Cal. 584) held that symbolical possession availed to dispossess the defendants sufficiently, because they were parties to the proceedings in which it was ordered and given. This decision is one of long standing, and has been followed for many years. Their Lordships see no reason to question it..." The position is explained lucidly in Rajendra Narayan Bhanja Deo v. Choudhury Chintamani Mohapatra (AIR. 1939 Patna 151). Counsel for appellants relied largely on V. C. Thani Chettiar v. Dakshinamurthy Mudaliar (AIR. 1955 Madras 288). That ruling has gone to the extreme and held "...it is useful to examine the position and the rights of persons like the plaintiff who purchase a share of some of the coparceners of a Hindu family ...He does not even acquire any interest in the property sold." I have already expressed my dissent to that ruling. (Vide Ramakrishna Iyer v. Suppayya Udayar C1964 KLT. 931 at 939.) 5. Counsel contended that in the case of court-sale of undivided share a 'symbolical delivery of that share is incompetent. Order XXI R.95, C. P. C. provides: "Where the immovable property sold is in the occupancy of the judgment-debtor or of some person on his behalf and a certificate in respect thereof has been granted under rule 94, the Court shall, on the application of the purchaser, order delivery to be made by putting such purchaser in possession of the property." It makes no exception in the case of a court-sale of unseparated share of a co-sharer. It cannot be said that a delivery of possession made by the Court was incompetent. The 12th defendant was and is admittedly in possession of some of the items of the plaint schedule properties and the other items are in the possession of his co-sharers. The legal presumption of a co-sharer's possession being on behalf of all co-sharers applies well in the circumstances; and Order XXI R.95 in terms is then pertinent to the case. The ouster or discontinuance of possession of the plaintiff can only be after the date of delivery of possession to her by Court. The legal presumption of a co-sharer's possession being on behalf of all co-sharers applies well in the circumstances; and Order XXI R.95 in terms is then pertinent to the case. The ouster or discontinuance of possession of the plaintiff can only be after the date of delivery of possession to her by Court. The Courts below were therefore right in counting the period of limitation from the date of the symbolical delivery and finding the suit to be in time. 6. The second appeal fails and is dismissed with costs. Dismissed.