JUDGMENT Deoki Nandan, J. - This is a plaintiff's second appeal in a suit for possession. The plaintiff had, in Suit No. 383 of 1949, obtained a decree for ejectment against Hari Chand since deceased, the father of the defendants Nos. 1 and 2 and the husband of defendant No. 3 in the suit giving rise to the present appeal. That suit had been decreed by the trial court in the year 1950. The decree was confirmed on first appeal in the year 1952, and on second appeal, on the 19th January 1960, by this court. That decree was put into execution on 21st April, 1952; and it is the plaintiff's case that possession was delivered to him on 15th May, 1952. But Hari Chand entered into wrongful possession of the house during the plaintiffs absence and thereafter continued in possession with her permission, given for such time as he got alternative accommodation, but before he could do so, he died, and the defendants in the present suit refused to vacate the accommodation. Hence, the present suit for possession against them. 2. The defendants contested the present suit. They challenged the plaintiffs title, and set up Section 47 of the Civil P. C. and limitation as bars to the suit. 3. The trial court decreed the suit on the finding that possession had actually been delivered in the earlier suit and the claim was within limitation having regard to the date of the actual delivery of possession in execution of the decree in the earlier suit, viz. 15th May, 1952. 4. The lower appellate court has reversed the trial courts decree. It found that subsequent to the alleged delivery of actual possession, which was evidenced by the Dakhalnama and the Amins report the plaintiff had filed an exuction application on 17th October, 1963 (Ext. A-4), and having regard to the contents of that application, it cannot be said that the plaintiff had got actual possession over the house on 15th May, 1952; and that the delivery of possession said to have been taken on 15th of May, 1952 not being in accordance with law, it did not give rise to a fresh start of limitation, with the result that the present suit Cor possession was barred by time. 5.
5. While considering the question whether or not actual possession was delivered to the plaintiff on 15th of May, 1952 (1962); vide Dakhalnama and Amins report (Ext 5), in the light of the subsequent execution application dated 17th October, 1963 (Ext.. A-4), the lower appellate court appears to have lost sight of the fact that the subsequent execution application was dismissed on 28th March 1964 on the statement of the plaintiff that the application was not pressed. The result in law of such dismissal was that this application was as good as not made. It appeal's to me probable that the defendants being admittedly in possession, the plaintiff must have first tried to obtain possession by the simpler and cheaper device of execution of the decree in the suit No. 383 of 1949 which had been confirmed by this Court on 19th January, 1960, and the application for which was still within limitation, but realising that the decree having been already executed on 15th May, 1952, by the delivery of possession, the application for execution was not maintainable he got it dismissed as not pressed; and filed the suit giving rise to the present second appeal almost immediately thereafter on the 16th April, 1964. The finding of the lower appellate court that delivery of actual possession over the accommodation had not been completed in execution in suit No. 383 of 1949, is vitiated in law, by reason of its omission to consider the fact that the application for execution was made on 17th Oct. 1963 (Ext. A-4). Moreover, according to the own case of the defendant-respondents, no question relating to the execution, discharge or satisfaction of the decree in suit. No. 383 of 1949 could be gone into in the present suit. It could have been gone into only by the court executing that decree and it is obvious that the order of that court dated 28th March, 1964, dismissing the execution application in the suit No. 383 of 1949. 6. Learned counsel for the respondents strongly relied on the Full Bench decision of this court in Thakur Jang Bahadur v. Thakur Hanwant Singh; 63 Ind Cas 212, equivalent to AIR 1921 All 9 : (19 All LJ 469) (FB), which has been referred to and relied on in the judgment of the lower appellate court.
6. Learned counsel for the respondents strongly relied on the Full Bench decision of this court in Thakur Jang Bahadur v. Thakur Hanwant Singh; 63 Ind Cas 212, equivalent to AIR 1921 All 9 : (19 All LJ 469) (FB), which has been referred to and relied on in the judgment of the lower appellate court. That case can apply only if the delivery of possession made by the Amin on 15th May, 1952, is interpreted to be a symbolic one. A perusal of the Amins report and the Dakhalnama (Ext. 4) would, on the other hand, show that the Amin purported to deliver actual possession and threw out the goods of the judgment-debtor in suit No. 383 of 1949, from the entire accommodation except for a room which was locked, and even in respect of that room the Amin put his own lock so that the judgment-debtor could not have, in law, broken open the lock put thereon by the Amin. Even with regard to the goods so detained by the Amin, there is an order of the executing court dated 26th May, 1952, whereby the Amin was directed to deliver the goods to the judgment debtor and to submit his report by 31st May, 1952. There is a further entry in the order-sheet dated 31st May, 1952 which shows that the goods had been given to the judgment-debtor. A certified copy of the order-sheet containing these orders is Ext. A-10 on the record of the case. Since the delivery of possession was not symbolic but was actual, the decision relied upon by the learned counsel for the respondents has no application to the facts oi the present case. The ruling of the Supreme Court in Manikayala Rao v. Narasimhaswami, AIR 1966 SC 470 may also be noticed in this context. The Full Bench decision was noticed by the Supreme Court in this case, and it ruled (at page 474, para. 9) as follows: - "It seems to us that the question of adverse possession is one of fact. If the person against whom adverse possession is set up shows that he had in fact obtained possession, whether lawfully or not, that would interrupt any possession held adversely against him. The question is whether there was in fact an interruption of the adverse possession and not whether that interruption was justifiable in law.
If the person against whom adverse possession is set up shows that he had in fact obtained possession, whether lawfully or not, that would interrupt any possession held adversely against him. The question is whether there was in fact an interruption of the adverse possession and not whether that interruption was justifiable in law. Under the order for delivery of symbolic possession, whether it was legal or otherwise, Prakasalingam did obtain possession and this was an interruption of the adverse possession by the respondents. In respect of the present suit time under Article 144 must, therefore, commence from that interruption." The position in the present case is the same, and even if the Amin committed some illegality in the course of delivering actual possession, the fact remained that the plaintiff did get actual possession over almost the whole of the accommodation and that did interrupt the adverse possession claimed by the defendants in the present suit. 7. With regard to the claim of adverse possession made by the defendants in the present suit, there is one other aspect which cannot be ignored. Hari Chand, their predecessor-in-interest was a tenant in the house and suit No. 383 of 1949 was a suit between a landlord and tenant. At no point of time, before the filing of the present suit, did the defendants ever claim to be the owners of the house that is to say, a title adverse to the plaintiff. The lower appellate court was, in my view, clearly wrong in holding that the present suit was barred by limitation or that the defendant-respondents had prescribed title to the property in suit by adverse possession. 8. In the result, the appeal succeeds and is allowed with cost. The judgment and decree of the lower appellate court are set aside. The decree of the trial court for possession and recovery of damages in the sum of Rs. 245/- is restored with costs throughout.