Narayan Prasad Panda vs Sreemati Adarmani Dasi and Others

Courtney-Terrell, C.J.—This second appeal arises out of a suit which was instituted on 29th January 1927, by the plaintiff to recover from defendant 1. two pies share of Taluk Panpur, tauzi No. 891, in the Balasore Collectorate. The suit was also for 12 karants odd share from defendant 2. The trial Court decreed the suit as against both defendants. Defendant 1 alone appealed to the District Judge, and it is with her case alone that we are concerned. The lower appellate Court held that the suit against defendant 1 was barred by limitation.

The facts are simple. The property originally belonged to one Kailash Chandra Kar, and in 1897 he mortgaged it to the plaintiff. In 1903 the plaintiff sued for a decree for sale on the mortgage, and in 1904, while the suit was pending, defendant 1 purchased the two pies share from the mortgagor Kailash Chandra Kar who was the owner of the equity of redemption. The purchaser, therefore, was bound by the doctrine of lis pendens. In 1909 there was a preliminary decree in the mortgage suit, and in 1910 there was a final decree for the sale of the mortgaged property. On 16th December 1911, the auction sale took place and the plaintiff purchased in the execution and on 18th January 1912 the sale was made absolute. On 29th January 1915 the plaintiff got delivery of possession. The suit was begun on 29th January 1927, exactly 12 years after'' the delivery of possession. The dispute between the parties came to a head by reason of the application of the plaintiff to register his name in the Land Registration Department. He was registered as proprietor in 1920-21, and on 23rd June 1922, defendant 1 applied to be registered as the proprietor of the two pies share which she had purchased in 1904. The result of that proceeding was that she was so registered in accordance with her petition, and the plaintiff''s name was expunged from the register of proprietors and accordingly he has been driven to the civil Court.

It is contended on behalf of defendant 1 and it was held by the lower appellate Court that the possession of defendant 1 became adverse to the plaintiff from the date of the confirmation of the sale on 18th January 1912, on ground that the plaintiff might have applied for immediate possession and did not do so and that the suit is, therefore, brought more than 12 years after the date when the plaintiff was entitled to possession. On the other hand, it is contended on behalf of the plaintiff that he did not get delivery from the Court until 29th January 1915 and that his suit being brought within 12 years is in time. The matter of when the adverse possession begins in circumstances of this kind has already been decided by a Bench of this Court in Ram Prasad Ojha and Others Vs. Bakshi Bindeshwari Prasad and Others, . The judgment of Noor, J. in that case is very clear, and dealing with a purchaser is pendens he observed as follows:

His position is no better than that of the mortgagor; he obtained the right, title and interest of the mortgagor subsequent to the passing of the mortgage-decree and, therefore, he was bound by the decree, the sale and the delivery of possession.

Now when once the Court put the plaintiff''s predecessor in interest in possession of the property and the defendant continued in possession of it in spite of this delivery of possession, it is then and then only that the possession of the defendant becomes adverse.

I would venture respectfully to agree entirely with the reasoning of the decision, and in the course of this case the authority which was cited by the lower appellate Court was considered. The learned Judge of the lower appellate Court felt himself bound by a decision of the Allahabad High Court in Narain Das v. Lalta Prasad (1899) 21 All 269. The Bench of this Court, which decided the case reported in Ram Prasad Ojha and Others Vs. Bakshi Bindeshwari Prasad and Others, , considered and disagreed with the judgment of the Allahabad High Court. We are bound by the decision of our own Court especially having regard to the fact that, speaking for myself, I think, the judgment of the learned Judges who decided the Patna case was correct. On this ground it is clear that the suit is not barred by limitation. The judgment of the lower appellate Court must be set aside and the judgment and the decree of the trial Court restored with costs throughout against defendant 1.

Saunder, J.

I agree.