Ahad Najar and Ors vs Pt. Ram Chand Raina and Others

J.N. Wazir, C.J.—This is Defendant's second appeal and arises out of the following circumstances;

The Plaintiff obtained a, decree against the Defendants for Rs. 350/- with, costs on 26-1-1990 In the execution of the decree the share of the

Defendants in the property described in the plaint was attached. One of the judgment-debtors Roost paid 1/3 share of the decrial amount to the

decree-holder and the execution continued against the other judgment-debtors for the balance of Rs. 55°/.- due from them. Their 2/5 share in the

house which was under attachment was auctioned and the decree-holder, after obtaining permission, of the Court, purchased that share in court

auction. Sale certificate was issued in the name of the decree-holder which was registered on 28 the Poh 200 It may be mentioned that the

judgment dilators had filed objections to the attachment of the property during execution proceedings which were dismissed. A suit was also filed

to set aside the sale which was dismissed. Auction purchaser made an application for possession of the 2/5 share which he had purchased in court

auction. Symbolic possession was given to the auction purchaser to the extent of 2/5 share of the house which he had purchased in auction.

The Plaintiff filed the present suit for potion by metes and bounds of his share to the ex-tent of 2/5 of the property described in that lain. The

Defendants resisted' the suit on the ground that the Plaintiff had never obtained pos-session of his share in the house and therefore his suit for

potion did not lie. It was further averred that no court auction had taken place of any portion of the house and' that the Plaintiff had not paid any

consideration for the property which was alleged to have been purchased by him in court auction. Various issues were raised by the trial court and

the important among them were (1) whether the Plaintiff has two shares out of five in the suit property and whether Plaintiff is entitled to that share

in the same and (2) whether Plaintiff is in joint possession of the suit property. Both the issues were decided in favour of the Plaintiff and his suit for

potion by metes and bounds was decreed against the Defendants. On appeal the District Judge affirmed the decree of the trial court and dismissed

the Defendants' appeal. The Defendants have now come up in further appeal to this Court.

In this appeal it is argued on behalf of the Appellants that the Plaintiff had never got symbolic possession of his share of the house and that his

suit for potion was not maintainable. It is further argued that the formalities for de-livery of symbolic possession were not complied with and

therefore no possession had passed to that Plaintiff. The learned Counsel for the Appellant has drawn my attention to Order 21, Rule 96, CPC

which reads as under:

Where the property sold is in the occupancy of a tenant or other person entitled to occupy the same 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 affixing a copy of the certificate of sale in

some conspicuous place on the property, and proclaiming to the occupant by beat of drum or] other customary mode, at some convenient place,

that the interest of the judgment-debtor has been transferred to the purchaser.

It is contended that the sale certificate was never affixed in some conspicuous place on the property and that there was no beat of drum

announcing that the interest of the judgment-debtors has been 'transferred to the purchaser and therefore the Plaintiff had not got possession of his

share in property. Reference was made to Clause (2) Rule 35 of Order 21, CPC which lays down.

Where a decree is for the joint possession of Immovable property, such possession shall de livered by affixing a copy of the warrant in soma

conspicuous place on the property and. proclaiming by beat of drum, or other customary mode at some convenient place, the substance of the

decree.

and it has been argued that delivery of possession under this rule also was not made inasmuch as a copy of the warrant was not affixed on the

property nor was the substance of ""the decree pro-claimed by any beat of drum. Rule 96 of Order 21, CPC has no application to the present case

as this rule applies only if the property is not in possession of the judgment-debtor but is in the occupancy of a tenant or other person entitled to

occupy the same. Therefore it was not necessary to affix a copy of certificate of sale in some conspicuous place on the property as required under

the above rule.

Rule 35(2) of Order 21, CPC provides for delivery of joint possession of immovable property and the formalities to be observed under this rule:

for delivery of such possession are that a copy of the warrant should be affixed in some conspicuous place on the property and' proclamation of

that substance of the decree is to be made by beat of drum or by other customary mode. There is no other provision for delivery of joint

possession to the purchaser of an undivided share in the property, except that contained in Rule 35(2) of Order 21, CPC The effect of delivery of

symbolic possession in execution in cases where such possession alone can be delivered is the same as actual transfer of possession from the

judgment-debtor to the decree-holder.

In Sarvi Begam v. Taj Begam AIR 1914 All 511 (1) it has been laid down that where an auction-purchaser purchases an undivided share in a

house, he should be given an effective possession under Order 21, Rule 35(2) and 95 and not under Rule 96. That next question for consideration

is whether the: formalities contained in Rule 35 (2) of Order 21 CPC have been complied' with or not in the present case. The learned Counsel for

the Appellants has argued that a copy of the warrant was not affixed in some conspicuous place on the property and that there was no

proclamation made by beat ' of drum in respect of the substance of the decree. We have it from the statement of the Plaintiff that a copy of the

order of the Court for delivery of symbolic possession was affixed on the property and! a proclamation was also made by beat of drum in regard

to the contents of that order.

My attention has been drawn to the endorsement made by the peon on the copy of the order in which it is stated that a copy of the summons was

affixed on the property. The mere fact that"" the word 'summons' has been used by the peon in his endorsement does not change the nature of the

warrant issued by the court for delivery of possession to the Plaintiff. If the, peon has described the warrant wrongly it would not, change, the

character of the warrant issued by the Court a

perusal of the order of the Court shows that it was warrant Issued for delivery of possession to the Plaintiff. According to the Plaintiff a copy of the

same was affixed on the property of which the possession was sought the evidence adduced by the Defendants does not show that the formalities

contained in Rule 33 (2) of Order 21, CPC were not complied with. From their evidence it appears that the property in dispute was never

attached and sold by auction. All this is a complete in view of the fact that objections were raised on regard to the attachment of the property

which was dismissed. Efforts were made for setting aside the sale by a separate suit, which was also dismissed.

In face of these facts it cannot be said that the suit property was never sold in auction and that the Plaintiff had not paid consideration for the same

it was for the Defendants to prove that the formalities required' by law were not complied with at the time of giving symbolic possession. In support

of this view reliance may be placed on Piara Ram v. Sohawa AIR 1928 Lah 910 in which it is laid down:

It must be assumed that a process, issued by the Court and accepted, by the Court as having been duly served, was served in the manner

provided by law and with all the formalities laid down for the service thereof. Therefore, the burden of proving that the formalities required by law

were not complied with at the time when formal possession was given to the Plaintiff is on the Defendant and not on the Plaintiff.

The Plaintiff in the instant case has proved that a copy of 'the warrant issued by the Court for delivery of possession of an undivided share in the

property was affixed on the property and that by beat of drum proclamation was made in regard to the contents of that warrant. The Plaintiff in

these circumstances was entitled to the decree for potion by metes and bounds of his share in the .house which he had purchased in Court auction.

This suit has been rightly decreed by the Courts below and I find no force in this second appeal .which is .dismissed but in view of the

circumstances of the case I leave the pies to bear their own costs in this Court.