Bisheshwar Pratap Narayan Sahi and Others vs Chandreshwar Prasad Narayan Singh

Dawson-Miller, C.J.—These are two appeals from an order passed by the Subordinate Judge of Muzaffarpnr in March last in two applications heard before him for restitution u/s 144, Civil P.C., in which the respondents Chandreshwar Prasad Narain Singh and Ashrafi Singh were the applicants and the appellants were the opposite parties. The applications arose out of a suit numbered 112 of 1920, brought by the appellants as plaintiffs against the respondents and others as defendants claiming possession of certain properties known as the Sarsund estate. Before the suit the properties had been placed in the possession of a Receiver by the Court pending the determination of the rights of the claimants. The appellants succeeded in their suit in the trial Court and got possession, but on appeal to this Court the judgment was reversed and the title of respondents was declared. The respondents then applied to the Subordinate Judge for restitution claiming possession of the properties. The applications were granted by the Subordinate Judge and the present appeal is from his order. The properties claimed are described in four schedules numbered 1 to 4 in the plaint in the suit of 1920 and it will be convenient to refer to them as so described.

In order to understand the nature of the dispute in the present proceedings it is necessary to state the surrounding circumstances. The last male holder of the estate, Babu Krishna Pratap Inder Narain Singh died many years ago whilst a minor and unmarried. He was succeeded by his mother and after her death by his grandmother Mt. Mulukrani Kuer who died on the 9th March 1908. On her death the succession to the estate re-opened and several claimants asserted a right to the estate. A scramble for possession of Schedules 2 and 3 properties ensued which resulted almost immediately in proceedings u/s 145, Criminal P.C., in consequence of a police report, dated 24th March 1908, that a breach of the peace was apprehended.

In the result the Subdivisional Officer of Sitamarhi in May 1908 held that nobody was in actual possession and attached the properties mentioned in Schedules 2 and 3 u/s 146 of the Code and a Receiver was appointed by the Court pending disputes between the parties. In 1911, in a suit numbered 176 of 1911, Asharfi Singh sued Chandreshwar Prasad and the appellants and others for possession of the properties in Schedules 1 and 2, and in that suit a Receiver was appointed by the Court of the properties in Schedule 1 in the year 1915. Thus all the properties in Schedules 1 to 3 were placed in the hands of a Receiver not later than 1915. In 1919 Asharfi and Chandreshwar entered into a compromise whereby Asharfi acknowledged Chandreshwar''s right to the properties in Schedules 1 and 2 and Chandresh war acknowledged Asharfi''s right to the properties in Schedules 3 and 4 and the suit was dismissed. Nothing appears to have been determined in that suit as to the rights of Chandreshwar and the present appellants inter se. They were co-defendants. The Receiver appointed in that suit remained in possession until 13th September 1920 when he was discharged, but was re-appointed on the following day by the Court in suit numbered 112 of 1920 out of which the present proceedings arise. With regard to the properties in Schedule 4, these have all along been in possession of Asharfi Singh and there is no longer any dispute as to their possession.

In suit No. 112 of 1920 the appellants sued Asharfi Singh and Chandreshwari and others to recover possession of all the properties set out in the four schedules asserting a title by inheritance as bandhus of the last male owner. Asharfi in that suit asserted a claim as being the nearest surviving agnate of the last male holder. He also claimed as mukarraridar under a grant from Mulukrani Kuer of the properties in Schedules 3 and 4, whilst Chandreshwar claimed as the adopted son of Krishna Kishore Narain Singh, deceased, who, at his death, was the nearest agnate of the last male holder. The appellants succeeded in their suit in the trial Court and were awarded possession of the properties by the decree of the Subordinate Judge dated 6th February 1923, and on 27th February the Court of Wards got possession on their behalf, some of them being minors, of the properties in the first three schedules.

Asharfi Singh and others of his family and Chandeshwar Prasad Narain Singh, each, entered appeals to the High Court against the decision of the trial Court, and thereafter in 1924 they petitioned the Court to appoint a Receiver over the properties pending the appeal. A Receiver was appointed over the properties in Schedule 3 whilst the properties in Schedules 1 and 2 were directed to remain in the hands of the Court of Wards, the Court considering that they were thereby sufficiently protected. On appeal the High Court, by its decree dated 13th April [Vide AIR 1927 Pat. 61] set sidee the judgment of the trial Court and declared the title of Chandreshwar and Asharfi in priority to the appellants. The questions for decision in the suit appear from the following passage taken from the judgment of this Court on appeal

The claim is resisted by Chandreshwar Prasad cited an defendant 25 in this action (appellant in F.A. No. 39 of 1923) as also by Asharfi Singh and others cited as defendants first party (appellants in F.A. No. 132 of 1923), Chandreshwar Prasad claims to have been adopted by Krishna Kishore Narain Singh on 11th June 1905 in dattak form; and it is conceded that he is entitled to succeed to the estate in suit provided he makes good his assertion that he was so adopted by Krishna Kishore. The defendants first party allege that they are agnatic relations of Krishna Pratap Inder Narain Singh and they claim to be his nearest heirs, They rely upon a pedigree which shows that Tanu Jha had two sons, Banwari Jha and Bhugirat Jha, and that they are the direct male descendants of Banwari Jha. The plaintiffs do not deny that the defendants first party arc the direct male descendants of Banwari Jha but they deny that Banwari was the son of Tanu Jha. They do not deny that the defendants first party, would have a better claim than they, provided they made good their assertion that they are the agnatic relations of Krishna Pratab Inder Narain Singh.

The High Court found that Asharfi Singh and the others associated with him in that appeal had established their case that they were the gotias of Krishna Pratap Inder Narain Singh and entitled to succeed to the estate in preference to the plaintiffs in that suit (the present appellants). The Court also found that Chandreshwar Prasad had established the validity of his adoption by Krishna Kishore Narain Singh and was entitled to succeed in preference to all the other parties.

The present respondents, Chandreshwar Prasad and Asharfi Singh, thereupon applied be the Judge of the trial Court for restitution u/s 144, Civil P.C., claiming that by virtue of the decision of the High Court on appeal in which their title had been declared they ought to be put in possession of the properties the subject of the suit. Asharfi Singh claimed possession of the properties in Schedules 3 and 4 by reason of the compromise effected between himself and Chandreshwar in suit No. 176 of 1911 and this was not opposed by Chandreshwar. The applications were opposed by the appellants who contended that under due judgment of the High Court on appeal no decree for delivery of possession bad been made in favour of the applicants who were not in possession of the properties before the suit, and that the most that could be ordered by way of restitution was that the properties should be put back into the possession of the persons who held them before the trial Court''s decree was executed, namely, the Receiver. They further contended that as Chandreshwar had brought no suit to recover possession within 12 years of the attachment of the properties by the criminal Court and as the suit of 1911 brought by Asharfi was dismissed, their claim was barred by limitation. This point, however, as appears from the judgment of the learned Subordinate Judge, was not pressed in argument before him.

The Subordinate Judge held that as the trial Court''s decree had been set aside by the High Court the applicants were entitled to be restored to the same position which they would have occupied but for such decree. Strictly speaking, restitution in such a case would mean replacing the properties in the hands of the Receiver, but as the title of the applicants thereto had been declared by the High Court,.and as the learned Judge considered that the possession of the Receiver was the possession of the Court for the benefit of the person entitled thereto he held that the applicants were entitled to possession by way of restitution. He accordingly ordered possession to be given to them.

In appeal before us it is argued that Section 144, Civil P.C., does not entitle the Court to do more than restore the property to the possession of the Receiver, for restitution cannot be made to a party who was not in possession before. It is further argued that as Chandreshwar has not brought any suit to recover possession within 12 years of the death of Mulukrani Kuer when his title became vested, his claim to possession is now barred by Article 141, Schedule 1, Lim, Act. These questions seem to me to depend upon whether or not Chandreshwar must be deemed to have been out of possession since the death of Mulukrani Kuer. If he was in possession, then the statute would not run against him, for there would be no necessity for him to assert his right to that which he already had. Where disputes arise between claimants as to possession of immovable property and the property is placed in the bands of a Receiver by the Court pending the determination of the question of title the Court takes possession through its Receiver on behalf of the party who may ultimately establish his title and from the moment the title is determined the possession must be deemed to have been the possession of the lawful owner whose title has been established. Nor do I think it makes any difference whether the property is attached by the Magistrate under the provisions of the Code of Criminal Procedure or placed in the possession of a receiver appointed by the civil Court. In Dwijendra Narain Roy Vs. Joges Chandra De and Others, , the matter is dealt with in the judgment of Mookerjee, J., as follows:

When the Court has appointed a Receiver and the Receiver is in possession, his possession is the possession of the Court, and the possession of the Court by its Receiver is the possession of all parties to the action according to their titles: Re Butler [1863] 13 Ir. Ch. Rule 456, Bertrand v. Davies [1862] 31 Beav. 429, Moir v. Blacker [1890] 26 Ir. 375, Re Ind. Coopc and Co. [1911] 2 Ch. 223. The property passes into legal custody as the receiver is in the position of stake-holder, and such custody is for the benefit of the true owner:: Brajendra Kishore v. Abdul Razac [1915] 22 C.L.J. 283, Ramasawmy v. Mathurasamy [1906] 30 Mad. 12, Khagendra v. Matangini [1890] 17 Cal. 814, Rao Karan v. Rajah Baker Ali [1882] 5 All. 1, Jagat Tarani v. Naba Gopal [1907] 34 Cal. 305.

The Court accordingly held in that suit that the successful plaintiff was not entitled to mesne profits from the defendant during the period that the Receiver had been in possession. Again in the earlier case of Sarat Chandra Maiti v. Bibhabati Debi AIR 1921 Cal. 584, the same learned Judge, after reforming to Brajendra Kishore v. Abdul Razac [1915] 22 C.L.J. 283 says:

That case is an authority for the proposition that when a property is attached u/s 146, Criminal P.C., it passes into legal custody, and during the continuance of the attachment, such custody is for the benefit of the true owner. If the true owner was in fact in possession when the attachment was effected, his possession in the eye of the law is not interrupted. If, on the other hand, the wrongdoer was in possession at the time when the attachment took place, the affect of the attachment is to interrupt his possession and, from the moment of attachment the possession of the rightful owner revives in the eye of law. Those results are deducible from the decisions of the Judicial Committee in Agency Co. v. Short [1888] 13 A.C. 793, Secretary of State v. Krislomani Gupta [1902] 29 Cal. 518 and Kumar Basanta Ray v. Secretary of State AIR 1917 P.C. 18. The intervention of the public authorities for the preservation of peace, operates in the same way as the vis major of the floods, and the constructive possession of the land is thereafter if any where, in the true owner. While the Collector holds possession for the benefit of the rightful owner, no possession on the part of the wrongdoer, can by legal fiction, be deemed to continue so as to be available towards the ultimate acquisition of title against the true owner. From this standpoint, no question of limitation really arises because less than twelve years elapsed between the confirmation of the rent sale on 18th February 1904 and the attachment by the Magistrate on 28th September 1912. If during the attachment, the seisin or legal possession is in the true owner, the attachment does not amount to either dispossession of the owner or the discontinuance of his possession.

The case of Baikuntha Nath Chattoraj Vs. Prosannamoyi Debi, was not the case of a Receiver and it does not appear to me to have any bearing upon the present point. In my opinion the cases reported in the Calcutta Law Journal correctly state the law on the subject.

The argument on behalf of the appellants is that if the property is merely restored to the Receiver as they contend it should be, then they may be able to prove hereafter that they in fast had possession of the properties before the Receiver was appointed and that it is not material at this stage, if Section 144, is strictly complied with by putting the Receiver in possession, to determine this question of fact. It may be here stated that the appellants have appealed to His Majesty in Council from the High Court''s decision against them in their suit of 1920 and that appeal is now pending and since the decision of the Subordinate Judge under appeal before us the property has again been placed in the possession of a Receiver pending the appeal to the Privy Council. We are, however, concerned only with the state of affairs as it existed at the date when the order now under appeal was passed. The appellants, however, urge that in the circumstances there is no immediate hurry to decide the question of earlier possession and the point would only arise if their appeal to His Majesty in Council should fail. They contend that if they can establish their possession before the Receiver was appointed and if Chandreshwar''s title has become extinguished by his failure to sue for possession within 12 years of Mulukrani''s death in 1908 then they would have a better right than Chandreshwar. It is clear, however, that they cannot set up a title by adverse possession over 12 years for whatever possession they may have had in the beginning, assuming it can be proved, came to an end when the Receiver was appointed of the properties in Schedules 2 and 3 in 1908 and of those in Schedule 1 in 1915; nor have they since that date had possession except for a short period. It is equally clear that Article 141 has no application against the reversioner already in possession and if I am right on the authority of the cases above cited in holding that the possession of the Receiver in a case like the present as to be deemed the possession of the rightful owner then Chandreshwar has not lost his title by omitting to bring a suit within 12 years of the death of Mulukrani Kuer even if the appellants have proved possession before the appointment of the Receiver.

It was contended, however, that the Indian decisions should not be followed as they conflict with the views expressed in certain English cases which it is argued go to show that a Receiver of immovable property does not take possession at all and, therefore, there was no disturbance of the appellants'' possession assuming that they could prove it. In Skip v. Harwood [1747] 3 Atk. 564 Lord Hardwicke, L.C., says:

A decree for a Receiver... is provisional only for the more speedy getting in of a party''s estate and securing it for the benefit of such person who shall appear to be entitled and does not at all affect the right.

In Vine v. Raleigh [1883] 24 Ch. D. 238 Chitty, J., says:

A Receiver does not receive the rents and profits by virtue of any estate or title that is vested in him. He is merely the officer of the Court to collect the rents upon the title of some persons parties to the action.

I can find nothing in these decisions which conflicts with the view already expressed; but the appellants also rely upon a dictum of James, L.J., in ex-parte Evans In re Watkins [1880] 13 Ch. D. 252. In the course of argument the learned Lord Justice remarked:"A Receiver of land never takes actual possession; he only receives the rent." That may be true in the case of leasehold lands which were the subject then under discussion. It is equally true of the proprietor of such lands. The actual possession is with the tenants. The question there was between the rights of a judgment-creditor who had obtained a transfer of a legal mortgage of leasehold lands belonging to his debtor and the rights of the trustees in bankruptcy of the debtor. Before the bankruptcy the judgment-creditor had obtained from the Court an order for the appointment of a Receiver of the rents of the land. The Court of appeal held that the appointment of a Receiver in the suit of the judgment-creditor was such a delivery in execution by lawful authority of mortgaged lands within the meaning of Section 1, Act 27, and 28 Vict. C. 112, as to render the judgment-creditor a secured creditor within the meaning of the Bankruptcy Act, 1869, in respect of the judgment-debt as well as the mortgage-debt. It is clear from the judgment that the Receiver and through him the judgment-creditor is regarded as having got actual delivery.

In none of these cases is there to my mind anything which conflicts with the view already expressed. In my opinion the Subordinate Judge was right in directing possession to be made over to the respondents and these appeals should be dismissed with costs.

Mullick, J.

I agree. The respondent Chandreshwari Prasad Narayan Singh is in possession of the properties in Schedules 1 and 2 and the respondent Asharfi Singh is in possession of the property in Schedule 3, having been appointed Receivers by the High Court pending the disposal of appeals Nos. 17 and 18 of 1926 by the Privy Council.

Mr. Pugh asks that we should modify the orders of the Subordinate Judge in the appeals now before us aud declare that the Receiver will hold subject to any rights which his client Biseswar Pratap Narayan Sahi may have acquired by adverse possession since 1908. He says that even if the Privy Council affirms the finding that his client has no title by inheritance he may hereafter be able to make out a title by continuous possession since the death of Mt. Mulukrani Kuer.

It is true that by reason of Article 120, Lim. Act, it is no longer open to Chandreshwar Prasad to bring a suit for declaration of his title; but his title has in fact been declared in Suit No. 112 of 1920 in which he was a defendant and Biseswar Pratap Narayan Sahi was a plaintiff and the Subordinate Judge was justified in making restitution to Chandreshwar Prasad of the properties in Schedules 1 and 2 and to Asharfi of the property in Schedule 3 in which Chandreshwar Prasad had admitted the title of Asharfi in the course of Suit No. 176 of 1911.

Even if Biseswar Pratap Narayan can prove that he got possession in 1908 the subsequent entry of Mr. Stevens, the Receiver appointed in 1908 by the Magistrate u/s 146, Criminal P.C., and of Mr. Moore, the Receiver appointed by the civil Court in 1911 put an end to the illegal possession of Biseswar Pratap Narayan and restored the possession of the true owner Chandreshwar Prasad Narayan. Biseswar Pratap Narayan could not be heard to say that he was in adverse possession against anyone during the occupation of the successive Receivers since 1908.

It was useless, therefore, for the Subordinate Judge to attempt to safeguard any further the title of Biseswar Pratap Narayan.