Mahadevappa Dundappa Hampiholi vs Bhima Doddappa Maled

Norman Macleod, C.J.—The plaintiff filed this suit for possession and mesne profits. The trial Court dismissed the suit and an appeal from that decree was dismissed with costs. The question is whether the defendants could succeed against the plaintiff who had obtained a decree for possession on the 28th February 1914. It was alleged that in execution of that decree the plaintiff was put in possession on the 5th February 1915. The learned Judge says "the main question, as was frankly stated by the learned pleader, is whether the possession delivered on the 5th February 1915 was symbolical possession or real possession," and the learned Judge came to the conclusion that the possession was only symbolical.

In Mahadev Sakharam v. Janu Namji I.L.R (1912) Bom. 373: 14 Bom. L.R. 115., it was decided by a Full Bench that merely formal possession of Immovable property by a purchaser at a Court sale cannot prevent limitation running in favour of the judgment-debtor where the latter remains in actual possession, and the property is not in the occupancy of a tenant or other persons entitled to occupy the same. Symbolical possession is not real possession nor is it equivalent to real possession under the CPC except where the Code expressly or by implication provides that it shall have that effect.

But in Thakur Sri Sri Radha Krishna Chanderji Vs. Ram Bahadur, , it was decided by the Privy Council that symbolical possession is sufficient to interrupt adverse possession where the person setting up adverse possession was a party to the execution proceedings in which the symbolical possession was given. Their Lordships approved of the decision in Juggobundhu Mukerjee v. Ram Chunder Bysack I.L.R (1880) Cal. 584. This decision of the Privy Council appeals to throw considerable doubt on the decision of this Court in Mahadev Sakharam v. Janu Namji I.L.R(1912) Bom. 373: 14 Bom. L.R. 115. which may nave, when the occasion arises, to be reconsidered.

In my opinion in this case it cannot be said that the question of adverse possession arises in the face of the plaintiff''s decree of February 1914. That would put a stop to any adverse possession prior to the date of the decree, and even if that were not so, considering that the defendants were parties to the execution proceedings, the decision in Thakur Sri Sri Radha Krishna Chanderji Vs. Ram Bahadur, would be applicable. The plaintiff, therefore, would be entitled to succeed, and the appeal must be allowed and a decree passed for possession with costs throughout. There will have to be an inquiry with regard to mesne profits for the past three years before suit and also with regard to future mesne profits.

Shah, J.

I agree.