Nagamalai Thevar v. Pandaram and another — 1977 DIGILAW 85 (MAD)

JUDGMENT: — The plaintiff, who lost in both the Courts below, is the appellant. He filed the suit for possession of the eastern 85 cents out of 1 acre 87 cents comprised in R.S., 126/3-A (called ‘Kalpullichanpatti Punjai’ in Vikraman-galam Village, Thirumangalam Taluk. The suit property is A schedule property which forms part of B schedule property. The appellant’s case was that the entire B schedule property belonged originally to Naga Thevar. The appellant had filed S.C. No. 312 of 1940 in the District Munsif Court, Thirumangalam for recovery of certain moneys due to him from Naga Thevar. After the death of Naga Thevar, pending that suit, his sons Chinnakannan alias Kaluva Thevar and Peyandi Thevar were added as his legal representatives. Subsequently, a decree was obtained in that suit and E.A. No. 87 of 1942 was filed for transmission of the decree to the original side for execution. Thereafter, the appellant filed E.P. No. 121 of 1942, and got the entire B schedule property attached in execution of the decree on 9th May, 1946. Subsequently, the property was brought to sale in E.P. No. 405 of 1952 and purchased by the appellant himself on 27th July, 1953, under the sale certificate, Exhibit A-1, subject to an othi under Exhibit B-12 dated 6th June, 1940 executed by Naga Thevar’s sons in favour of the second respondent’s mother Mayakkal over the western 1 acre out of the B schedule property. After obtaining the sale certificate, Exhibit A-1, the appellant filed E.A. No. 701 of 1956 for delivery under Order 21, rule 96, Civil Procedure Code and obtained delivery on 19th December, 1956, as seen from the delivery warrant and akthakshi Exhibit A-2. Subsequently, he got the patta Exhibit A-3, transferred in his name on 8th April, 1965. He claimed to be in possession of the property since the date of delivery and to have paid kist under Exhibits A-4 to A-6 and he alleged that -the respondents trespassed into the A schedule property and were raising crops and that he was, therefore, entitled to recover possession of the A schedule property with past mesne profits of Rs. 720 and future mesne profits. The suit was filed after the appellant had sent the notice Exhibit A-7 and had received the replies Exhibits A-8 and A-9 from respondents 1 and 2 respectively . 2. 720 and future mesne profits. The suit was filed after the appellant had sent the notice Exhibit A-7 and had received the replies Exhibits A-8 and A-9 from respondents 1 and 2 respectively . 2. The respondents admitted that the B schedule property belonged to Naga Thevar and that the A schedule property is part of the B schedule property and contended that the B schedule property devolved on Naga Thevar’s sons on his death. The respondents denied knowledge about the Court proceedings in S.C. No. 312 of 1940 and the execution petition filed on the basis of the decree passed in that suit and contended that the delivery alleged to have been taken on 19th December, 1956, was only a paper delivery and not actual delivery. The first respondent had purchased 25 acres in A schedule property from Naga Thevar’s son Markantan and others under Exhibit B-2 dated 8th May, 1957 and 18 cents in A schedule property from one Pandi son of Chinna Kannan Thevar under Exhibits B-3 dated 23rd December, 1957. The second respondent has purchased 64 cents under Exhibits B-11 and B-15. The respondents contended that they had purchased the entire A schedule property and that they have acquired title by adverse possession. The respondents further contended that the suit was bad for misjoinder of causes of action on the ground that they were in possession of specific extents of the A schedule property in pursuance of the separate sales in their favour, 3. Both the Courts below held that the delivery on 19th December, 1956, was only a paper delivery and not actual delivery and that the first respondent had acquired title to the property by adverse possession for over the statutory period. They also found that the first respondent, the purchaser under Exhibits B-2 and B-3, the second respondent, purchaser under Exhibits B-11 and B-15 and the second respondent as the heir of the mortgagee Mayakkal under Exhibit B-12 were in possession of specific portions of the A schedule property and that the suit was, therefore, bad for misjoinder of causes of action. In this view, both the Courts below dismissed the suit without going into the question of the quantum of mesne profits. 4. In this view, both the Courts below dismissed the suit without going into the question of the quantum of mesne profits. 4. There is no question of the suit being bad for misjoinder of parties and causes of action, for the othi, Exhibit B-12 has been executed only in respect of the western 1 acre out of the B schedule property and only the western 1 acre could be in possession of second respondent, the son of the mortgagee, and the first respondent could be in possession of only 42 cents out of the A schedule property by right of purchase under Exhibits B-2 and B-3, and the second respondent could be in possession of only 64 cents by right of purchase under Exhibits B-11 and B-15. Common questions of fact and law would have arisen even if separate suits had been filed and, therefore, the appellant could file a single suit against both respondents in respect of the A schedule property. Therefore, it is not possible to uphold the view of the Courts below that the suit is bad for misjoinder of parties and causes of action. 5. The title of Naga Thevar to the entire B schedule property has been admitted. The appellant has proved the purchase of the entire B schedule property under the sale certificate, Exhibit A-1 in pursuance of the decree obtained against the sons of Naga Thevar impleaded as the legal representatives of their father in S.C. No. 312 of 1940 on the file of the District Munsif’s Court. Tirumangalam. The appellant purports to have taken symbolical delivery of possession of the suit property on 19th December, 1956, as per the delivery warrant and akthakshi, Exhibit A-2. The suit having been filed on 7th July, 1967 within 12 years from the date of the symbolical delivery, if symbolical would arrest the running of adverse possession, the appellant would be entitled to recover possession, of the A schedule property. The learned Subordinate Judge has purported to rely upon the decision of the Supreme Court in Manikyala Rao v. Narasimhaswami1 in coming to the conclusion that symbolical delivery would not arrest the running of adverse possession. On the contrary, that decision is an authority for the position that symbolical delivery would arrest the running of adverse possession. The learned Subordinate Judge has purported to rely upon the decision of the Supreme Court in Manikyala Rao v. Narasimhaswami1 in coming to the conclusion that symbolical delivery would not arrest the running of adverse possession. On the contrary, that decision is an authority for the position that symbolical delivery would arrest the running of adverse possession. The learned Judges have observed at page 31 thus: “It is not in dispute that in order that the suit may be barred under the Article, the defendant must have been in uninterrupted possession for 12 years before the date of the suit. Now, in the present case that was not so. By the delivery of symbolical possession under the order of 6th November, 1939 the adverse possession of the defendant was interrupted. Time has, therefore, to commence to run from that date and so considered, the suit having been brought within 12 years of that date, it was not barred under that Article. That would follow from the case of Sri Radhakrishna Chanderji v. Ram Bahadur2, where it was held that delivery of formal possession also interrupted the continuity of adverse possession.” 6. The learned counsel for the respondents submitted that symbolical delivery of possession would arrest the continuity of adverse possession only in case where such possession could be given and not where actual delivery could be given under Order 21, rule 95, Civil Procedure Code but symbolical delivery alone was given under Order 21, rule 96, Civil Procedure Code. He submitted that the aforesaid decision of the Supreme Court in Manikyala Rao v. Narasimhaswami1 itself would show that that is the position of law. He relied upon the following observations made in that judgment at page 32 of the report — "Learned counsel for the respondents referred us to Mahadev Sakharan Parkar v. Janu Namji Hatle2 and Jang Bahadur Singh v. Banwant Singh3 to show that the delivery of symbolical possession does not avail the appellants (successors-in-interest of Sivayya who died pending appeal in the High Court). On behalf of the appellants it was said that these decisions are no longer good law in view of the judgment of the Judicial Committee in Sri Radhakrishna Chanderji’s case4. Apart however from the merits of their contention which, no doubt, deserve consideration, the principle of these cases does not seem to us to be applicable to the present case. On behalf of the appellants it was said that these decisions are no longer good law in view of the judgment of the Judicial Committee in Sri Radhakrishna Chanderji’s case4. Apart however from the merits of their contention which, no doubt, deserve consideration, the principle of these cases does not seem to us to be applicable to the present case. That principle was expressed in the case of Jang Bahadur Singh3 which is also clearly to be implied from the decision in the case of Mahadev Sakharan Parkar2 in these words — "If possession was delivered in accordance with law, that undoubtedly would, as between the parties to the proceedings relating to delivery of possession, give a new start for the computation of limitation and the possession of the defendants would be deemed to be a fresh invasion of the plaintiff’s right and a new trespass on the property. But if possession was not delivered in the mode provided by law, that delivery of possession cannot, in our opinion, give a fresh start to the plaintiff for computing limitation". "By the words ‘in accordance with law’ the learned Judges meant, in accordance with the Civil Procedure Code and not any other law. These cases dealt with an order of delivery of symbolical possession where an order for actual possession could have been made under the Code. Because of this, it has held that the order for delivery of symbolical possession did not interrupt the adverse possession of the defendant. That is not the case here. The only order for delivery of possession that could possibly be made under the Code in the present case was under Order 21, rules 35 (2) and 96 because the other members of the family whose share had not been sold were certainly entitled to remain in possession ......The result is that the suit was not barred whether Article 144 or Article 120 applied to it". 7. 7. It is not possible to agree with the learned counsel for the respondents that this decision of the Supreme Court lays down that where symbolical delivery was actually given in a case where actual delivery could have been given, it would not arrest the adverse possession, for in the earlier portion of the judgment the learned Judges observed, as extracted above, that by the delivery of symbolical possession under the order of 6th November, 1939 the adverse possession of the defendant was interrupted and that time has, therefore, to commence to run from that date and so considered, the suit having been brought within 12 years of that date, it was not barred under that Article. In making that observation, the learned Judges had relied upon the decision of the Privy Council in Sri Radhakrishna Chanderji v. Ram Bahadur4. The learned counsel for the respondents next relied upon the decision of V. Ramaswami, J., in Nagoor Rowthar v. Abdul Rahim5. In that case, the plaintiff as the assignee-decree-holder purchased certain items of properties including items 7 and 8 and he was found to have taken only symbolical delivery of those two items on 2nd December, 1938. Subsequently he filed the suit out of which the decision of V. Ramaswami, J., arose namely O.S. No. 453 of 1950, for recovery of possession of those two items and certain other items of properties alleging trespass by the second defendant in that suit so far as items 7 and 8 were concerned, and he obtained an ex parte decree against the second defendant on 22nd January, 1952. Thereafter, he filed E.P. No. 96 of 1964 for obtaining delivery of possession in execution of that decree and it was stated that he took delivery of possession on 4th May, 1964. The second defendant contended that he was not aware of O.S. No. 453 of 1950 and that the decree in that suit was obtained fradulently and the alleged delivery in the prior suit was false, fraudulent and legally void, and he claimed to have acquired title to those two items of properties by adverse possession for over 12 years before suit. The trial Court found that actual possession was taken and that the trespass alleged was true and decreed the suit. But on appeal, it was found that only symbolical delivery was taken and that the second defendant had acquired title by prescription. The trial Court found that actual possession was taken and that the trespass alleged was true and decreed the suit. But on appeal, it was found that only symbolical delivery was taken and that the second defendant had acquired title by prescription. It may be stated that the plaintiff in that suit himself admitted that these two items, namely, items 7 and 8 were in the possession of tenants, and therefore it was found that only symbolical delivery could have been taken by him. The view of the lower appellate Court was confirmed by V. Ramaswami, J., though it was found that the second defendant was a party to the suit in which the property was sold. But, having regard to the decisions which will be referred to presently, particularly of a Bench of this Court in Pethaperumal v. Chidambaram1 it is not possible to agree with this view of V. Ramaswami, J. 8. Sri Radhakrishna Chanderji v. Ram Bahadur2, arose out of a suit to recover possession of 150 bighas of land in Mouzah Nagdah in respect of which the plaintiffs had acquired such right in the land as could be sold under a decree in favour of mortgagees against two members of a joint Hindu family named Rudra Prakash Misser and Dharam Prakash Misser. The principal defendant in the suit, an idol represented by its shebaits, which was in actual possession through its tenants, claimed title to the land through the decree-holder-purchaser at an execution sale held under his decree in 1883, which had been obtained against the father of Rudra Prakash and Dharam Prakash, and it contended that it had better title derived from the father and it also relied on adverse possession. The idol proved that it had held the land through its tenants for many years before the suit. But the plaintiffs alleged effective interruption of their possession within 12 years before the suit. The plaintiffs received a sale certificate that they were entitled to all the Zamindari rights in 8 annas pucca of ‘Mouzah Nagdah’ and the land being in occupation by cultivating tenants they received formal possession after the due proclamation by beat of drum in 1898. But the plaintiffs alleged effective interruption of their possession within 12 years before the suit. The plaintiffs received a sale certificate that they were entitled to all the Zamindari rights in 8 annas pucca of ‘Mouzah Nagdah’ and the land being in occupation by cultivating tenants they received formal possession after the due proclamation by beat of drum in 1898. Their Lordships of the Privy Council have observed in that judgment thus — “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 Juggobandhu Mukherji v. Ramchandra Bysak3 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 or to hold that this Rule of procedure should now be altered”. 9. A similar view has been taken by a Bench of this Court in Kamayya v. Mahalakshmi,1 where the learned Judges have observed. "It is clear that the balance of authority is overwhelmingly in favour of the view that, in a case like this, a judgment-debtor, who is a party to the execution proceedings and is bound by the decree, is not entitled to deny that he was dispossessed, even though he was not actually evicted. We think that the rule laid down by the Privy Council is so worded as to be of general application and that we must follow it." The Privy Council decision referred to in that decision is the one rendered in Sri Radhakrishna Chanderji v. Ram Bahadur.2 10. The learned counsel for the respondents sought to rely upon the decision of a Bench of this Court in Pethaperumal v. Chidambaram.3 A reading of that decision shows that it is clearly against what has been contended for on behalf of the respondents in the present case. In that case, the property was admitted to be in the possession of tenants and delivery of possession was effected on 8th July, 1929 by proclamation and affixture. The plaintiffs alleged that subsequently one Vinayakam Ambalam trespassed into the properties in September, 1934 and was in unlawful possession. In that case, the property was admitted to be in the possession of tenants and delivery of possession was effected on 8th July, 1929 by proclamation and affixture. The plaintiffs alleged that subsequently one Vinayakam Ambalam trespassed into the properties in September, 1934 and was in unlawful possession. The suit for declaration and possession was filed on 8th July, 1941. The first two defendants in that suit were the sons and legal representatives of Vinyakam Ambalam and the other defendants were stated to be in possession of the properties as the tenants of these two defendants. It was contended in that suit before the High Court that symbolical delivery under Order 21, rule 96, Civil Procedure Code, was binding only against the parties to the suit and not against strangers and that in the case of the latter, their adverse possession was not interrupted by such delivery, and for that position decisions of the type illustrated by Juggobandhu Mukherji v. Ramchander Bysak,4 were referred to. The learned Judges have observed in paragraphs 11 and 12 thus: — "Mr. Viraraghavan had to admit that if in the present case delivery was effected under Order 21, rule 95 and khas possession had been obtained by the plaintiff, his suit could not be resisted by the appellant. Does it make any difference that the delivery is effected under Order 21, rule 96, as ‘paper possession’ is hardly justified and runs counter to the principle on which the provision is based? Symbolical possession obtained under Order 21, rule 96, is quite a different thing from paper possession, which might correctly describe only the possession obtained by a party who being entitled to actual possession, the judgment-debtor himself being in possession, obtains delivery of possession on paper without actual possession; or those cases where without complying with the requisites of the statute a false return is made as if they were complied with. Possession obtained by proclamation and affixture under Order 21, rule 96, is equivalent to real possession in those cases where the Code expressly or impliedly provides that it shall have that effect. On the finding of the lower appellate Court that the statutory requisites under Order 21, rule 96, have been followed the possession obtained by the plaintiff’s predecessor-in-title was real and was not invalidated by the non-impleading of the legal representatives of Alagu". On the finding of the lower appellate Court that the statutory requisites under Order 21, rule 96, have been followed the possession obtained by the plaintiff’s predecessor-in-title was real and was not invalidated by the non-impleading of the legal representatives of Alagu". "The other line of reasoning submitted by learned counsel for the appellant that a symbolic delivery of possession interrupted only the possession of the parties to the record and not strangers, also proceeds on a misapprehension as to the rule. The decision in Juggobandhu Mukherjee v. Ramachandra Bysak,4 accepted by the Privy Council in Thankur Sri Radhakrishna v. Ram Bahadur,5 lays down the rule that symbolic delivery of possession is binding against the parties to the record. But a legal representative of a party to the record is as much bound by every estoppel binding on his predecessor and if as we have held there was no legal obligation to implead the legal representatives at that stage, it is clear that these decisions are really adverse to the contentions raised by the appellant". This decision clearly lays down that symbolic delivery of possession is binding not only against the parties to the record but also against the legal representatives of a party to the record. In the present case, the first respondent claims to have purchased 25 cents out of the suit properties from Markantan, son of Naga Thevar who was the judgment-debtor in S.C. No. 312 of 1940 in execution of which decree the property was brought to sale in E.P. No. 405 of 1952 and purchased by the appellant under Exhibit A-1 subject to the othi under Exhibit B-12, and also from others under Exhibit B-2, dated 8th May, 1957. The first defendant claimed title to 18 cents of the suit lands by right of purchase from one Pandi, son of Chinnakannu Thevar under Exhibit B-3 dated 23rd December, 1957. As Markantan, one of the vendors of the first respondent under the sale deed Exhibit B-2 is the legal representative of Naga Thevar, the judgment-debtor in S.C. No. 312 of 1940 the symbolical delivery is clearly binding on the first respondent and would arrest his adverse possession. 11. As Markantan, one of the vendors of the first respondent under the sale deed Exhibit B-2 is the legal representative of Naga Thevar, the judgment-debtor in S.C. No. 312 of 1940 the symbolical delivery is clearly binding on the first respondent and would arrest his adverse possession. 11. No doubt in Tang Bahadur Singh v. Banwant Singh,1 it has been observed thus: — "The case of Kocherlakota Venkatakrishna Row v. Vadrevu Venkappa,2 is distinguishable from the present case having regard to the facts and circumstances of that case. The same remark applies to the case of Dhansingh v. Ganpat3. In these cases, possession had been delivered in the right mode having regard to the nature of the property. In this view, we hold that where possession has been delivered in accordance with the provisions of law, that is, in accordance with section 318 or 319 of the old Code, as the case may be, having regard to the nature of the property or under Order 21, rule 95 or rule 96 in each case regard being always had to the nature of the property and the mode in which possession ought in law to have been delivered, and such possession had been delivered, the auction purchaser gets a fresh start for the computation of limitation. But where such possession has not been delivered, the mere fact of formal delivery of possession is not available to him for saving the operation of limitation. In the present case, possession was hot delivered in the manner required by law and therefore the delivery of possession which took place on 20th November, 1903, could hot be of any help to the plaintiff as regards the saving of limitation". 12. But, this decision has been referred to in the decision of the Supreme Court in Manikyala Rao v. Narasimhasami,4 referred to above, where, as already stated, it has been observed that the delivery of symbolic possession would arrest the adverse possession of the defendants in the suit. 12. But, this decision has been referred to in the decision of the Supreme Court in Manikyala Rao v. Narasimhasami,4 referred to above, where, as already stated, it has been observed that the delivery of symbolic possession would arrest the adverse possession of the defendants in the suit. Having regard to that decision of the Supreme Court, and the decision of the Privy Council in Sri Radhakrishna Chanderji v. Ram Bahadur,5 which has been consistently followed, it is not possible to agree with the Courts below that symbolical delivery of possession effected on 19th December, 1956, as seen from Exhibit A-2 had not arrested the adverse possession of the first respondent and that the first respondent has prescribed title to the portions claimed by him by adverse possession. The Courts below had erred in law in holding so, and this court is, therefore, entitled to interfere in Second Appeal. The Second Appeal is, therefore, allowed with costs throughout payable by respondents 1 and 2. The appellant has not adduced any evidence regarding past profits. There will, therefore, be a decree only for possession with future mesne profits to be ascertained in separate proceedings under Order 20, rule 12, Civil Procedure Code. No leave.