Prankrishna Mistri vs Haimabala Das and Others

H. Deka, C.J.—This appeal is by the defendant No. 1, against whom a decree for eviction was passed on the basis of a declaration of title of the plaintiff. The same plot of land was the subject-matter of the suit between the same parties in Title Suit No. 68 of 1946 of the Munsiff''s court at Barpeta. The decree obtained in that suit was put into execution and'' the possession obtained through Court by the plaintiff on 10-6-1950. There was actually no removal of the hut belonging to the defendant on the date of execution of the decree and though the writ of possession was served and possession obtained through the Nazir on demarcation by the Lot Mandal, -- the hut belonging to the defendant was allowed to stand. The present suit therefore, was instituted on 6th February 1952 for removal of the hut belonging to the defendant, who claims to possess the land by virtue of his own title.

It is found as a fact that the plaintiff is entitled to the suit land for which the decree was originally passed in the Title Suit No. 68 of 1946. Therefore the only point that was agitated by the defendant apart from the question of title, was the question of limitation.

Both the courts have concurrently held that the suit was within time and there was no adverse possession by which the defendant''s title matured. It is found as a fact that possession was given to the plaintiff decree-holder on 10th June 1950 of the identical plot of land but the hut belonging to the defendant was not demolished.

Mr. Patliak appearing for the appellant has contended before me that since Order 21, Rule 35(1) of the CPC entitles the decree-holder to get khas possession, -- any possession short of taking actual possession is no possession in the eye of law. The relevant clause runs as follows :

Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.

Mr. Pathak though conceded that it has been unanimously held by the courts below that symbolical possession is good possession against the defendant, -- ho contends that this view applies only to cases where the decree-holder was entitled to symbolical possession, as contemplated under Rules 35(2) and 36 of Order 21, CPC and not to cases where the decree-holder is entitled to factual possession. He however, has not been able to lay his hands on any decision of any court which would support his contention. On the other hand, the case of Ramanand Pathak and Others Vs. Bindhachal Tewari and Others, fully supports the plaintiff''s contention that even where the decree-holder is entitled to khas possession but takes only symbolical possession, the symbolical possession operates as khas possession as against the defendant. The relevant observation by their Lordships runs as follows:

The true rule, therefore, deducible from the authorities is that where in execution of a decree, symbolical possession is delivered of immovable property to the person entitled to possession thereof, and such a person brings a suit for recovery of actual possession, the symbolical possession were to be deemed equivalent to actual possession as against the judgment-debtor or his representatives and the suit will be deemed to have been brought in time if it has been brought within twelve years from the date of the symbolical possession, In other words, it is now well established that the'' delivery of symbolical possession is the line of demarcation between possession precedent and possession subsequent.

I am unable to uphold Mr. Pathak''s contention that where symbolical possession is not prescribed and if symbolical possession alone is taken, that is no possession in the eye of law, at least for the purpose of breaking the continuity of possession of the judgment-debtor. It has been found by both the courts below that there was taking of symbolical possession by the plaintiff about two yours before the institution of the suit, and in my opinion that operates as a breach to the continuity of possession of the defendant and there was no adverse possession for the statutory period as contemplated under Article 144 of the Indian Limitation Act. The result therefore, is that this appeal is dismissed with costs.