Varghese Joseph v. Mathew Thomas. — 1967 DIGILAW 151 (KER)

Judgment :- 1. This motion is by the petitioners (who will hereafter be referred to as the plaintiffs), whose application for permission to sue as paupers has been rejected by the Court below. 2. The facts are thus: The predecessor-in-interest of the 1st defendant had, in execution of the hypothecation decree in O. S. No. 173 of 1108 on the file of the Munsiff, Changanacherry, obtained by him against Kunnappally tarwad, purchased the plaint schedule properties on 17101113 and taken delivery of them on 16121116. Though the plaintiffs' father, who was no party to those proceedings, obstructed the delivery, he was overruled and delivery was effected on 16121116. The dispute as to possession survived the delivery proceedings and ultimately culminated in M. C. No. 13 of 1119 (1943) before the Sub-Divisional Magistrate, Kottayam, under S.128 of the Travancore Criminal Procedure Code, which corresponded with S.145 of the Indian Code. The Magistrate, by his order dated 28101946 expressed inability to decide as to the party in possession and therefore ordered continuance of attachment of the properties and the receiving order "until a competent Court has determined the rights of the parties thereto or the person entitled to possession thereof." On the eve of expiry of three years after the Magistrate's order, the 1st defendant instituted O. S. No. 65 of 1125 on the file of the District Court, Kottayam, against the plaintiffs' predecessor for declaration of title and recovery of possession from the receiver. That suit was tried by the Subordinate Judge, Kottayam, who found title and possession of the properties with the 1st defendant. The plaintiffs took the matter in appeal before this Court (in A. S. No. 218 of 1959) which, by the judgment, Ext. D2, dated 23101963, left the question of title open between parties, and found the delivery of 1116 aforesaid to be real. A fresh suit to determine the rights of the parties thus became inevitable; for a mere delivery by Court, as has been observed by the Privy Council in Karan Singh v. Raja Bakar Ali Khan 9 I. A. 99 will not give a title, and, as observed by me in CRP. No. 351 of 1967 since reported in 1967 KLT. 667, will not affect the title of the true owner who was no party thereto. No. 351 of 1967 since reported in 1967 KLT. 667, will not affect the title of the true owner who was no party thereto. On 5-2-1964, the plaintiffs presented this application for permission to sue as paupers for declaration of their title to the property and for recovery thereof from the receiver. The Principal Subordinate Judge, Kottayam, held: "Under 0.33 R.5(d) (i), 'where the suit appears to be barred by any law the court shall reject an application for permission to sue as a pauper.' The petitioner was examined as P. W.1. He would admit that he has no fresh evidence other than what his father had tendered in the prior suit. The court has power to reject an application for permission to sue in forma pauperis where the claim is prima facie barred by limitation or is res judicata etc. But in considering the question whether the applicant has a cause of action or not, the court has to look only to the allegations made by the applicant, and cannot enter to the merits of the claim. It is open to the court to consider not only the allegations contained in the plaint, but also the facts appearing in the examination of the applicant. It has come out in the deposition of the petitioner that he has no evidence worth the name to be adduced; and the same contentions were raised and agitated by his father in the prior suit. Therefore. I find that this petition is not maintainable. It is hence, dismissed." The prior suit referred to being O. S. No. 65 of 1125 which left open the right (title) to the properties, there cannot be a bar of res judicata. The Subordinate Judge has riot indicated the law that bars a re-agitation of the question which has teen expressly left open in a prior suit. The plaintiffs went in appeal before the District Judge, Kottayam, who dismissed the appeal with costs, observing: "This suit was plainly filed on account of the following observations in Ext. The Subordinate Judge has riot indicated the law that bars a re-agitation of the question which has teen expressly left open in a prior suit. The plaintiffs went in appeal before the District Judge, Kottayam, who dismissed the appeal with costs, observing: "This suit was plainly filed on account of the following observations in Ext. D2 judgment: 'In the inconclusive nature and discussion of the evidence on the question of title, I think it proper in the interest of justice to leave open the question of title to the suit properties." The above observations only mean that the question of title was alone left open and does not, as the appellants' learned counsel contended, mean that the question of subsisting title was also left open. If so, the finding of fact, that the respondent got actual delivery in 1116, would have no meaning at all and his suit would not have been decreed and the appeal filed by the appellants' father would not have been dismissed with costs. I am, therefore, justified in taking the view, on account of the findings of fact in Ext. D2 judgment which, I may repeat, are binding upon the appellants, that they have prima facie no subsisting title which in turn means that the substantive relief of possession which they claim in the present suit, is pinna facie time barred." It is absurd to think that when this Court left open the question of title to the suit properties, it meant something other than subsisting title. The facts of the case show unambiguously that what was relevant in the suit was only subsisting title. In the context of the challenge to a delivery proceeding had in execution of a decree by a person claiming title to the properties no judge could have reasonably thought that any antecedent but non-subsisting title would have been the thing considered and left open for decision in another suit. 3. Encouraged apparently by the above-quoted observation of the District Judge, counsel for the respondents-defendants contends that the suit is barred under Art.142 of the Limitation Act, in as much as the plaintiffs' dispossession was on 16-12-1116/31-7-1941 and their present application is dated 5 21964. 3. Encouraged apparently by the above-quoted observation of the District Judge, counsel for the respondents-defendants contends that the suit is barred under Art.142 of the Limitation Act, in as much as the plaintiffs' dispossession was on 16-12-1116/31-7-1941 and their present application is dated 5 21964. This contention, I am afraid, ignores the fact that the properties had been in possession of a receiver appointed by the Sub Divisional Magistrate, Kottayam, since 1943 till after the institution of the present pauper petition. If the receiver's possession was possession of the rightful owner and if ultimately in this suit the plaintiffs are found to have title to the properties, it cannot then be said that the plaintiffs were out of legal possession since 1943, or that the defendants were in possession beyond 1943. 4. It then becomes necessary to consider the nature and effect of possession by a receiver appointed under S.146, Crl. P. C., (which corresponds with S.129 of the Travancore Criminal Procedure Code, 1067). In Rajah of Venkatagiri v. Isakapalli Subbiah ILR. 26 Mad. 410, 415, Benson and Bhashyam Ayyangar JJ. have observed: "In the present case the Magistrate acted in due course of law and, either because he found that neither party was in possession or because he was unable to satisfy himself as to which of them was then in possession, he has simply attached the property. Such attachment operates in law for purposes of limitation simply as detention or custody of the property by the Magistrate who, pending the decision by a Civil Court of competent jurisdiction, holds it merely on behalf of the party entitled, whether he be one of the actual parties to the dispute before him or any other person. For purposes of limitation the seizin or legal possession will, during the attachment, be in the true owner and the attachment by the Magistrate will not amount either to dispossession of the owner, or to his discontinuing possession. In each of the present suits, the plaintiff claims as the true owner and as being in legal possession the physical possession by the Magistrate being one on behalf of the true owner and prays for a declaration of his title, as against the defendant (the plaintiff in the other suit) who denies his title and claims the property as his own. Under S.146, Criminal Procedure Code, the Magistrate is bound to continue the attachment and have statutory possession of the lands for purposes of continuing the attachment until a competent Civil Court determines the rights of the parties to the dispute before him or the person entitled to the possession of the lands and he cannot deliver the property to any of the parties or other person without an adjudication by a Civil Court. During the continuance of the attachment, the legal possession for purposes of limitation will constructively be in the person who had the title at the date of the attachment and such tills cannot be extinguished by the operation of S.28 of the Limitation Act, however long such attachment may continue." When a Magistrate attaches property and appoints a receiver to hold it, the property passes into legal custody exercised by the Magistrate through his representative and the observations quoted above apply to it. 5. In Brojendra Kishore Roy Choudhury v. Sarojini Ray 20 C. W. N. 481 the facts were similar to those of the present case. "The plaintiffs claimed title to the disputed property by purchase at a sale in execution of a mortgage decree. They took possession, but were resisted by the defendants and a breach of the peace became imminent. Proceedings were consequently instituted under S.145 of the Criminal Procedure Code, but as the Magistrate was unable to satisfy himself as to which of the parties was in possession of the subject of dispute, he attached it under S.146 of the Criminal Procedure Code, until a competent court should determine the rights of the parties thereto or the persons entitled to possession thereof." Consequent thereon the plaintiffs instituted the suit for declaration of title and recovery of possession and it was contended to be barred by limitation. Asutosh Mookerjee and Beachcraft JJ. observed: "In the words of Lord Morris in Khagendra Narain v. Matangini 17 I. A. 62:17 Cal. 814 the Magistrate is in the position of a stake-holder, or as was said in Rama Swamy v. Muthu Swamy ILR. 30 Mad. Asutosh Mookerjee and Beachcraft JJ. observed: "In the words of Lord Morris in Khagendra Narain v. Matangini 17 I. A. 62:17 Cal. 814 the Magistrate is in the position of a stake-holder, or as was said in Rama Swamy v. Muthu Swamy ILR. 30 Mad. 12, when the property is attached it passes into legal custody and during the continuance of the attachment such custody must be held to be for the benefit of the true owner....The plaintiff may have been deprived of possession, but he cannot aptly be said to have been dispossessed, or, to have discontinued possession within the meaning of Art.142 of the Indian Limitation Act. Dispossession implies the coming in of a person and the driving out of another from possession. Discontinuance implies the going out of the person in possession and his being followed into possession by another. These elementary principles are deducible from the decisions of the Judicial Committee in Agency Company v. Short 13 App. Cas. 793 and Secretary of State v. Kristomani 29 I. A. 104. To the same effect is the observation of Baron Parke in Smith v. Lloyd 9 Exch. 562 that to make the statute of limitation applicable, there must be both absence of possession by the person who has the right and actual possession by another, whether adverse or not, to be protected. It follows, that if the seisin or legal possession is, during the attachment, in the true owner, the attachment cannot be deemed to amount to either dispossession of the owner or the discontinuance of his possession. We must accordingly hold, as was done in Raja of Venkatagiri v. Isakapali ILR. 26 Mad. 410,415 that Art.142 has no application to a suit of this description..." Adopting the ratio in the above precedents, I hold that the possession of a receiver appointed by the Magistrate under S.146, Criminal Procedure Code, is possession on behalf of the true owner of the properties. It follows that the period of possession by the receiver cannot be reckoned as one of discontinuance of possession by the plaintiffs before the real owner of the properties is ascertained by the Court, which has yet to be done in the suit sought to be instituted. It follows that the period of possession by the receiver cannot be reckoned as one of discontinuance of possession by the plaintiffs before the real owner of the properties is ascertained by the Court, which has yet to be done in the suit sought to be instituted. If ultimately title is found with the plaintiffs all the possession of the receiver has to be found to have been on their behalf, entitling them to all the profits collected by the receiver. The argument that the suit is barred by limitation under Art.142 of the Limitation Act which reckons the period of possession by the receiver as period of discontinuance of possession by the plaintiffs who claim title to the properties presupposes the decision in the suit to be in defendant's favour, which cannot be sustained now. The finding of the Courts below that the suit is obviously barred by limitation is unsustainable. I discharge the same. 6. As the other questions arising on the application, inclusive of the pauperism of the plaintiffs, have not been adverted to by the Courts below, the application has to be remitted to the Court of first instance for fresh disposal in accordance with law. The costs of this Civil Revision Petition must follow the result of the application. Order accordingly.