Jawala Parshad and others vs Jiwan Ram and others

Chopra, J.—This was a suit by respondent to obtain possession of certain land on the allegations that he had previously been put in possession of it by order of Court in execution of a decree against the appellants, and that he had subsequently been dispossessed by them. The defendants denied that the plaintiff had ever obtained possession and set up adverse possession of their own. On 25.3.1998 Ram Chand plaintiff brought a suit against Baru, Kishen Lal and Jai Ram for possession of the land now in dispute and also some other property and finally succeeded in getting a decree in his favour of 27-11-1992 from the High Court, Patiala. The decree was put into execution and the judgment-debtors having refused to appear and their crop having been found to be standing on the land formal possession was delivered to the decree-holder on 25-2-1993 by Girdawar Qanungo in the presence of the patwari and Lambardar of the village, who were all present on the spot. The judgment-debtors were ordered to give Batai for the crop that had already been sown to the decree-holder and vacate the land after the harvest. The fact of the delivery of symbolical possession was proclaimed in the village by beat of drum. Ram Chand brought the present suit alleging that Kishen Lal and Jai Ram defendants had again taken forcible possession of the land and that they should be ejected therefrom. Kalu and Wazir Singh tenants of the first two defendants were also impleaded as defendants. Ram Chand transferred his rights to Jiwa Ram who was, on his application, joined as a plaintiff on 29-9-2004. On the death of Jai Ram defendant his son Jawala Parshad was substituted in his place. The plaintiff''s claim was resisted by the defendants and they took various pleas but we are now concerned with only one of them, namely, that the delivery of symbolical possession to the plaintiff in 1993 was not equivalent to actual possession and therefore it did not put an end to their adverse possession. The trial Sub-Judge found in favour of the defendants and dismissed the suit as time barred. But on appeal the learned District Judge reversed the finding and holding the suit to be within time decreed the same. This is defendants appeal.

It is strenuously contended by B. Daya Kishen, the learned counsel for the appellant, that symbolical possession given to the plaintiff in 1993, when actual possession ought to have been delivered could not have the effect of interrupting the adverse possession. Warrants were placed on a conspicuous place of the property. It is urged that symbolical possession awarded without strictly observing the provisions of O. 21 B. 36, Civil P. C., was a nullity and did not give a new start of limitation for institution of the suit. Reliance in support of his argument has been placed on AIR 1937 350 (Lahore); AIR 1924 301 (Lahore) ; Jauhri Lal v. Peman, 55 I. C. 19 : (A. I. R. 1920 Lah. 473); Mahadeo v. Janu Namji, 36 Bom. 373: (14 I. C. 447); AIR 1936 749 (Lahore) Nidhi Ram v. Parsa Ram, A. I. R. 1923 Lah. 693 : (74 I. C. l) and AIR 1933 427 (Lahore) .

B. Lachhman Das, the learned counsel for the respondent, has very ably taken us through a wealth of case law on the point and he contends that even symbolical possession delivered in execution of decree for possession is equivalent to actual possession as against the judgment-debtor and effectively vests the property in the decree-holder so as to give him fresh cause of action for recovery of actual possession from the judgment-debtor. He further urges that the defendants being parties to the execution proceedings were not entitled to question the legality of the procedure adopted in those proceedings. He, therefore, maintains that inspite of technical irregularities, if any, committed in the delivery of possession the continuity of the adverse-possession of the defendants was broken on 25.2. 1993.

A study of the various authorities on the disputed point reveals that there was once a conflict of opinion of different High Courts in India. While a Full Bench of the Calcutta High Court in Juggobhundhu v. Ramchunder, 5 Cal. 584: (5 C. L. R. 548), had held that a symbolical possession as against the defendants to the suit would be deemed equivalent to actual possession, Full Bench of the Allahabad High Court in Thakur Jang Bahadur Singh and Another Vs. Thakur Hanwant Singh, ) and Full Bench of the Bombay High Court in Mahadeo v. Janu, 36 Bom. 373: (14 I. C. 447); held to the contrary that mare delivery of formal possession in execution of a decree cannot give fresh start of limitation to the decree-holder because it does not put an end to the prescription claimed by the judgment-debtor, who continued to remain in actual possession of the property. The controversy, however, seems to have been concluded by the authoritative dictum given by their Lordships of the Privy Council in Radha Krishna v. Ram Bahadur, A. I. R. 1917 P. C. 197, that symbolical possession availed to dispossess the defendant sufficiently because he was a party to the proceedings in which it was ordered and given. Their Lordships expressly dissented from the view taken by the Bombay and Allahabad High Courts, and expressed their agreement with the view of the Full Bench of the Calcutta High Court. It is no doubt true that in the Privy Council case as also in Calcutta case the decree-holder could only get symbolical possession of the property decreed but their Lordships laid down a rule of general application which has since been unanimously adopted by all the High Courts in India to be equally applicable to a case where the decree-holder was entitled to actual possession but had in fact only got a formal possession.

The Calcutta High Court has uptill now consistently followed the view laid down by its Full Bench. In Jogendra Krishna Chaudhury Vs. Joy Shib Chaudhury, , it was held that:

In a suit for possession when the plaintiff has been given symbolical possession in execution of a decree, if the defendant is bound by the decree, the symbolical possession delivered against him amounts to action... The plaintiff is entitled to base his cause of action from the date of delivery of symbolical possession.

In Harpal Kurmi and Others Vs. Mohan Kurmi and Others, , the Allahabad High Court appears to have changed its previous view and come in line with the Calcutta High Court by holding that a formal possession even in a case where actual possession was the appropriate method of relief amounted to actual delivery and was sufficient to interrupt adverse possession.

The Bombay High Court had to deliver judgment on the point once again in Mahadevappa v. Bhima Doddappa (A. I. R. 1922 Bom. 27 : 46 Bom. 710). Macleod C. J. delivering judgment in the case observed that the subsequent decision of their Lordships in Radhakrishna v. Ram Bahadur, A. I. R. 1917 P. C. 197, appeared to throw considerable doubt on the decision of their High Court in Mahadeo v. Janu, 36 Bom. 373 : (14 I. C. 447), and held that symbolical possession was sufficient to interrupt adverse possession of the person who was a party to the execution proceedings. It was further remarked that the view previously taken by that Court might, when occasion arose, have to be reconsidered. The two High Courts that had favoured a contrary view appear to have, since the dictum of their Lordships, adopted the consistent and more salutary view of the Calcutta, High Court.

The High Court of Dharmala Kamayya and Others Vs. Bhimarasetti Mahalakshmi, , considered the case law on the point and held that the balance of authority was overwhelmingly in favour of the view that a judgment-debtor who was a party to the execution proceedings, and was bound by the decree, was not entitled to deny that he was dispossessed even though he was not actually evicted. In a more recent judgment of this High Court Addepalli Satyanarayana Vs. Munnaluri Rama Rao and Others, , a similar view was taken and it was observed that symbolical delivery of possession of property through Court amounts to momentary interruption of the enjoyment of the judgment-debtor.

The matter was very recently considered by the Patna High Court in Ramanand Pathak and Others Vs. Bindhachal Tewari and Others, , and it was observed that a symbolical possession delivered to a person entitled to actual possession was equivalent to actual possession and that his subsequent suit within 12 years from the date of symbolical possession cannot be held to be time barred.

The Lahore High Court generally, except in a few cases that are relied upon by the learned counsel for the appellant, preferred to follow the Calcutta view. In AIR 1926 35 (Lahore) ) only symbolical possession had been given to the decree-holder although the decree provided for actual possession. Jai Lal J. relying upon some of the authorities referred to above and a judgment of the Lahore High Court in Jauhrilal v. Peman, 68 I. C. 182 (Lah.) observed:

The ratio decidendi in the judgments referred to above, which support the contention of the appellant, is that symbolical possession given in circumstances in which actual possession ought to have been delivered is not a nullity. The delivery of such possession even erroneously amounts to delivery of actual possession so far as the judgment-debtor and his representatives are concerned. The possession in this case was obtained through the Court and by process of law and the judgment-debtor must be deemed to be a party to and present at the proceedings in which it was taken. In the eye of the law, therefore, the delivery of symbolical possession to a decree-bolder, even in cases in which actual possession should have been given, puts an end to the adverse possession of the judgment-debtor and effectually vests the property in suit in the decree-holder so as to give him a fresh cause of action for recovery of actual possession from the judgment-debtor.

The view taken by Jai Lal J. was approved by a Division Bench consisting of Tek Chand and Bhide JJ. in AIR 1935 612 (Lahore) . The whole case law was once again discussed in AIR 1941 357 (Lahore) Lah. 428, and it was observed that where a suit for possession is decreed and the decree-holder is given symbolical possession, the continuity of adverse possession of the judgment-debtor is broken by the symbolical possession.

Against all this volume of authorities, the learned counsel for the appellant relies upon Sardar Khan v. Abdulla Khan, A. I. R. 1921 Lah. 301: (71 I. C. 885) and AIR 1937 350 (Lahore) AIR 1924 301 (Lahore) was mainly based on the previous view of the Bombay and Allahabad High Courts and the contrary view or the Privy Council authority was not considered in the judgment. In AIR 1937 350 (Lahore) the principle laid down in the same Bombay Full Bench case Mahadeo v. Janu, 36 Bom. 373: (14 I. C. 447) was followed and Radha Krishna v. Ram Bahadur, A. I. R. 1917 P. C. 197 was distinguished. Jauhri Lal v. Peman, 55 I. C. 19: (A. I. R. 1920 Lah. 473) was also relied upon but it was not brought to the notice of the Court that the judgment had been reversed on Letters Patent Appeal in Jauhri Lal v. Peman, 68 I. C. 182 (Lah.) AIR 1937 350 (Lahore) was cited in support of the opposite view before the Division Bench in AIR 1941 357 (Lahore) and was not looked upon with approval. Otherwise also the case is distinguishable from the facts of the present case. In that case the decree-holder was entitled to actual possession and there was no justification for giving him symbolical possession. The learned Judge appears to hold the view that a mere symbolical possession would be equally effective where that was the only possible thing that could be done. In the present case, as has already been observed, some crop of the judgment-debtor was standing on the land when the Qanungo went to deliver possession to the decree-holder. The decree or the order did not direct that the crop should also go to the decree-holder along with the land, nor did it specifically mention the date on which the possession was to be delivered. Under the circumstances, the course open to the qanungo was to refer the matter back to the Court for necessary instructions or to deliver only symbolical possession to the decree-holder. He adopted the latter course because he was not in a position to deliver actual possession. The learned counsel for the appellant has not been able to satisfy me that actual possession could, under the circumstances, be transferred to the decree-holder. The case relied upon, for all these reasons is not of much help to him.

The true position of law on the point, deducible from the overwhelming authorities, is that where in execution of a decree symbolical possession is delivered of immovable property to the person entitled to possession thereof, the symbolical possession should be deemed equivalent to actual possession as against the judgment-debtor, and a subsequent suit by the decree-holder for actual possession instituted within 12 years from the date of the symbolical possession must be deemed to be within time. To hold otherwise would be destructive of all respect for law and authority of Court.

The second objection of the learned counsel to the effect that non-fixation of a copy of the warrants in some conspicuous place on the property renders the execution proceedings and the delivery of symbolical possession a nullity is also not acceptable. His contention is that the procedure laid down by O. 21, B. 36, Civil P. C. is mandatory and that it must be strictly observed while delivering symbolical possession to the decree-holder. In support of his argument he relies on the same judgment of Abdul Rashid J. in AIR 1937 350 (Lahore) nd some other cases, namely, Jauhrilal v. Raman, 55 I. C. 19: (A. I. R. 1920 Lah. 473), Harnam Singh v. Banta Singh, A. I. R. 1933 Lah. 427: (145 I. C. 345) and AIR 1936 749 (Lahore) Jauhrilal v. Raman, 55 I. C. 19: (A. I. R. 1920 Lah. 473), as already observed, was reversed on Letters Patent Appeal in Jauhrilal v. Raman, 68 I. C. 182 (Lah.). In this case a similar contention which was that failure to comply with the provisions of O. 21, R. 36 was a fatal defect was raised. The Division Bench reversing the judgment came to the conclusion that the defect could not render the proceedings a nullity and repelled the contention. In Harnam Singh v. Banda Singh, A. I. R. 1939 Lah. 427: (145 I. C. 345), the original decree which was executed, was for symbolical possession and it is therefore distinguishable. In AIR 1936 749 (Lahore) actual possession was expressed to be given to the decree-holder by the patwari while the decree only provided for joint possession and it was observed that the procedure prescribed by O. 21, R. 35 (2) must have been strictly followed. The case, for this reason, is clearly distinguishable. My reasons for not adopting the view taken in AIR 1937 350 (Lahore) which was mostly based on the above noted authorities, have already been given.

The defendants, who were party to the decree and the execution proceedings, can hardly be allowed in this suit to take objection as to the irregularity committed in those proceedings. The mere fact that they intentionally absented themselves at the time the possession was delivered does not entitle them now to take up objections that could have been taken in those proceedings. I am, therefore, of the considered opinion that technical irregularities committed in delivery of symbolical possession, in a case where the decree provides for actual possession, are not very material as between the parties to the proceedings, and that such formal possession, inspite of the irregularities, is as effectual as a complete transfer of possession from one party to another. It gives a fresh start of limitation to the decree-holder for getting actual possession of the property. In this view I am supported by a number of authorities such as Dhan Singh v. Ganpat, 24 I. C. 850: (A. I. R. 1914 Nag. 14), Jauhrilal v. Raman, 68 I. C. 182 (Lah.) AIR 1926 35 (Lahore) , AIR 1935 612 (Lahore) and Mahomed Sadiq Ali v. Punjab National Bank, A. I. R. 1941 Lah. 367: (I. L. R. (1941) Lah. 428).

The judgment of the learned District Judge, based as it is on well-recognised principle of law, is upheld and the appeal is dismissed with costs.