Ramchandra Mahadeo Khondre vs Parasu Dattu Kadam and others

V.G. Wagle, J.—The point that arises in this appeal is whether the plaintiff''s suit filed in 1956 is barred under the provisions of Article 142 of the Limitation Act and also by reason of the conclusive nature of the order passed in execution proceedings under Order XXI, rule 103 of the Civil Procedure Code. The facts of this appeal are the following:

One Dadu Babaji Dari was the owner of the disputed property. Suit No. 533 of 1937 was filed by the original plaintiff against the said Dadu Babaji Dari to recover a debt owed by him. Exhibit 38 is the decree dated July 19, 1939 for Rs. 337-4-6 in favour of the present plaintiff. In execution of this decree, the disputed property was sold by Court in Darkhast No. 176 of 1944 on November 4, 1944. The property was of course sold subject to a mortgage which Dadu Babaji Dari had executed in favour of the plaintiff. But we are not concerned with this mortgage in this proceeding.

The sale was confirmed on December 7, 1944 and Exh. 45 is the sale certificate issued to the plaintiff dated December 13,1944. During the pendency of this proceeding, namely, the suit and the execution proceedings filed by Nikam for the recovery of the amount of money, Dari sold the disputed property to defendant No. 1 on June 27, 1940. This sale was challenged by plaintiff Nikam and one other creditor of Dari u/s 53 of the Transfer of Property Act on the ground that this was intended to defeat the creditors'' claims. The Appellate Court in Civil Appeal No. 118 of 1949 decreed the suit on February 16, 1951.

While this proceeding was pending, Miscellaneous Application No. 3 of 1945 was made by the present plaintiff to obtain possession of the property for which the sale certificate Exh. 45 was obtained by the plaintiff. One Yesabai, the mother of the present defendant No. 1, having obstructed the obtaining of possession by the plaintiff, application No. 32 of 1945 was filed by the plaintiff-purchaser to remove obstruction. Exhibit 67 is the order on this application dated April 9, 1945 by which plaintiff''s application was rejected and it was held that he was not entitled to immediate possession as against Yesabai. Plaintiff filed the present suit against the defendants on April 26, 1956. Three different sets of defendants put in written statements. Defendant No. 2 contended that he was in possession of the property from November 13, 1934 when he obtained a sale certificate from a Court for having purchased the property at a court auction. It was contended by him that the plaintiff''s suit as against him was barred. But it was not contended by defendant No. 2 in the written statement that he was in possession of the property at the date of the suit. What was urged was that defendants Nos. 3 to 12 out of whom Nos. 11 and 12 were the tenants were in possession of the disputed property. In fact, the claim made by defendant No. 2 was that the possession was really of defendants Nos. 3 to 10 and that their claim had materialised into title in their favour.

Defendants Nos. 3 to 10 adopted this contention of defendant No. 2 that they were in possession of the disputed property for a period of more than 12 years next before suit openly as of right and that, therefore, they had become owners of the property. It was also urged by them that this suit which was really brought to get over the order dated April 9, 1945 in the execution proceedings denying possession to the plaintiff was not brought within one year as required under Article 11A of the Limitation Act and that, therefore, plaintiff had lost his right to contend that he was entitled to possession of this property as against the defendants. The contentions of defendant No. 1 were also similar. He denied that he was in possession. He denied all knowledge of the deed of sale in his favour and he stated that it was defendants Nos. 3 to 10 who were in possession of the property adversely to the plaintiff for a period of more than 12 years and that, therefore, they had become owners. In the alternative, it was pleaded by defendant No. 1 that in view of the fact that the suit was filed more than one year after the order was passed on April 9, 1945, plaintiff''s claim was barred. The trial Court dismissed plaintiff''s suit. The appellate Court, however, set aside this dismissal and decreed plaintiff''s suit.

Mr. Chitale, who appears for the appellants- original defendants Nos. 1 to 10, urged three points in this case. The first point was that under the provisions of Article 142 of the Limitation Act, the present suit was barred because the plaintiff did not allege and prove that he was dispossessed within 12 years next before the suit. Article 142 of the Limitation Act requires that the suit by a plaintiff for possession of immovable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession, must be filed within 12 years from the date of dispossession or discontinuance. This postulates that the plaintiff must allege possession and he must also prove that within 12 years next before the suit, he was dispossessed or, in other words, that he was in possession of the disputed property within 12 years next before suit. Reliance was placed by Mr. Chitale upon the decision of the Privy Council in Dharani Kanta Lahiri Chowdhuri v. Gabar Ali Khan (1912) 17 C W N 389 (PC). This was a suit filed by a landlord against the tenant for ejectment. The defence was that the plaintiff-landlord was not at any time in possession of the suit property from 1815 onwards, and that the suit was, therefore, barred by time. Concurrent findings of the lower Courts were to the effect that plaintiffs had entirely failed to prove that they were ever in possession of any of the lands in suit or that they were dispossessed by the defendants. Their Lordships of the Privy Council accepted the concurrent findings of the High Court and the Officiating Subordinate Judge and observed as follows (p. 394):

The suit is one for the ejectment of persons who admittedly were at the date of suit in possession of the seven puras of land from which it is sought to eject them. It lay upon the Plaintiffs to prove not only a title as against the Defendants to the possession, but to prove that the Plaintiffs had been dispossessed or had discontinued to be in possession of the lands within the 12 years immediately preceding the commencement of the suit.

Mr. Chitale urged that this was the law laid down by the Privy Council in respect of a suit for possession filed by a plaintiff. Mr. Chitale urged that in this decision their Lordships of the Privy Council have clearly laid down that in every case where plaintiff comes to Court seeking possession, he must prove that he was in possession of the suit property within 12 years next before suit. It was then urged by Mr. Chitale that the suit being filed on April 26, 1956, the plaintiff must prove that he was in possession of the property some time during the 12 years next before April 26, 1956. This not having been done by the plaintiff, his suit must fail.

Mr. Shrikhande, who appeared on behalf of respondents Nos. 1 to 8, urged that to a suit of the nature filed by the plaintiff, the relevant Article of the Limitation Act would be either Article 137 or 138. If at the date when the plaintiff became the purchaser of the property at a court-auction persons other than the judgment-debtor are in possession, then the suit is governed by Article 137. If, however, at the relevant date the judgment-debtor is in possession, then the suit is governed by Article 138 of the Limitation Act. Mr. Shrikhande''s argument was that if there are one or two articles, one general and the other specific, then the specific article must prevail in preference to the general article. There is no doubt that Article 137 or 138 would be specific articles covering the present case. The two articles read as follows:

Description of suit

Period of limitation

Time from which period begins to run

Like suit by a purchaser at a sale in execution of a decree, when the judgment-debtor was out of possession at the date of the sale.

Twelve years.

When the judgment-debtor is first entitled to possession.

Like suit by a purchaser at a sale in execution of a decree, when the judgment-debtor was in possession at the date of the sale.

Twelve years.

The date when the sale becomes absolute.

The plaintiff satisfies the requirements of the first column both in Article 137 and also in Article 138 in the alternative. Plaintiff''s case is that in spite of the dealings with the property by the judgment-debtor in 1940, the possession of the properties remained with the judgment-debtor all the time. The delivery of possession and the passing of the property were only cloaks intended to defeat the claims of the creditors. In support of this contention Mr. Shrikhande referred to the judgment, Ex. 50, in Civil Appeal No. 118 of 1949 dated February 16, 1951. In this judgment, the sale was held inoperative against the claims of the creditors. In fact, a finding is given that the delivery of possession was only a cloak. Mr. Shrikhande urged that this fact specifically found in Civil Appeal No. 118 of 1949 is clear enough to show that there was no change of possession at any time so far as this property is concerned. It may be that some show of passing of possession was made by the parties so as to make others believe that the possession of the property was with defendant No. 1.

Mr. Shrikhande, therefore, urged that whether the property was in fact with defendant No. 1 or whether it was with the judgment-debtor, the whole transaction of 1940 being intended to defeat the creditors would have no bearing upon the rights of the creditors. Article 138, therefore, was, according to Mr. Shrikhande, the only article applicable to the present case. The plaintiff became the purchaser when the sale was confirmed on December 7, 1944. It may even be that this confirmation may relate to the date of sale which was November 4, 1944. Plaintiff filed the suit on April 26, 1956. According to the second and the third columns of Article 138, the suit ought to be filed within 12 years of the date when the sale became absolute. The date April 26, 1956 being within 12 years from November 1944, the suit was well within time. Mr. Shrikhande, therefore, urged that there was no substance in the argument that the suit was barred by time.

The question really depends upon whether Article 138 or 142 would apply. Mr. Chitale urged that there is ample authority to show that the Article that would apply even in case where the auction-purchaser files a suit would be Article 142, and not Article 138. In this connection, Mr. Chitale referred to the decision of the Madras High Court in P. Natesa Nattar Vs. J.G. Daniel (Died) and Others, . In this decision, it was held by the Madras High Court that where an auction-purchaser at a sale held in execution of a simple mortgage decree obtained by the mortgagee is obstructed by a third person in taking delivery of possession and the auction-purchaser, who is a decree-holder himself, files a suit for possession against the third person he must establish his possession within the period of 12 years before the suit. To such a case Article 142 applies. The auction-purchaser cannot rest his case on his title alone. If he fails to prove such possession his suit must be held to be barred by time. In that case, the Division Bench of the Madras High Court held that the plaintiff must show in such cases that he or his predecessor-in-title had exercised the rights of ownership by being in possession within 12 years next before suit. Mr. Chitale urged that the Madras High Court thereby decided that the Article that would apply to a suit filed by a purchaser at a court-sale would be Article 142, and not Article 138. I can only say that the question which Article applied, whether Article 138 or 142, does not seem to have been debated before the Court and it seems to have been conceded by the plaintiff in this case that Article 142 would apply and the case seems to have been considered on that basis.

Mr. Chitale, however, mainly relied upon the decision of the Privy Council in Dharani Kanta Lahiri Chowdhuri v. Gabar Ali Khan (1912) 17CWN 389 (P C), in support of his contention that the Article that was applicable was 142. The facts, however, which appear to have been stated at page 390 in the arguments of the counsel show that the suit in that case was for ejectment and the appellants alleged wrongful dispossession. From this statement of fact, it is clear that the appellants-plaintiffs had claimed dispossession by the defendants and there would be no dispute with regard to this proposition of law that when a plaintiff comes to Court on the ground that he was dispossessed, the Article that would apply would be Article 142. To such facts, Article 142 of the Limitation Act would apply. The facts of the Privy Council case, therefore, are somewhat different from the facts of the present case.

It was then urged by Mr. Chitale that one consequence necessarily follows upon a purchase being effected at a court-sale, namely, that the title that is taken by the purchaser at the court-auction is subject to all the infirmities to which the judgment-debtor''s title was subject. If, therefore, the judgment-debtor was not in possession of the property at the time the sale was effected by the Court, then the plaintiff takes it with notice that a person other than the judgment-debtor is in possession of the property and that the said claim might even be adverse to the claim of the judgment-debtor. Briefly stated, the case could be put that the plaintiff''s suit as an auction-purchaser has to be judged on the same merits as a suit by the judgment-debtor filed at the time when the auction-purchaser files the suit. The infirmity that is obtainable against the judgment-debtor if he had filed a suit would effectively be available to the third parties against the auction-purchaser. In this view of things, Mr. Chitale urged that the possession of third parties for a period of 12 years immediately next before the filing of the suit would be an impediment whether considered under Article 142 or under Article 137 of the Limitation Act, even if the latter Article would apply. Mr. Chitale''s argument, therefore, was that the plaintiff cannot escape proving that he or his predecessor-in-title were in possession of the property within 12 years next before suit. On facts, Mr. Chitale urged that by the sale deed of June 27, 1940, Dadu Dari not only sold the property to defendant No. 1, but he also delivered possession to defendant No. 1. If this fact of delivery of possession be held proved as against Dadu Babaji Dari, it would equally be held against the plaintiff in the instant case. If, therefore, a third party was in possession since 1940, then a suit brought in 1956 would not be within a period of 12 years from the date - somebody other than Dadu Dari was in possession of the property. Mr. Chitale, therefore, urged that whether Article 137 applied or Article 142 applied, the infirmity would be the same, namely, that in the instant case, plaintiff failed to prove that he or his predecessor-in-title were in possession of the property at any time during 12 years next before suit.

In deciding the question whether plaintiff has proved that he or his predecessor-in-title were in possession of the property within 12 years next before the suit, a reference to the facts has to be made. The first fact to be noticed is that the sale that was effected in favour of defendant No. 1 by a deed dated June 27, 1940 was made inoperative as against the creditors by the appellate Court in Civil Appeal No. 118 of 1949 on February 16, 1951. This was a suit to which both defendant No. 1 and defendant No. 2 were parties. This was a suit u/s 53 of the Transfer of Property Act to set aside a sale on the ground that it was in fraud of creditors. It was held to be in fraud of creditors and the normal consequence that would follow from this decision is that possession would not be lawful as against creditors when obtained under such a deed. But whether lawful or unlawful, possession would be a matter of fact and so far as adverse possession is concerned, such a possession would also be considered as factual possession to support a claim for title by adverse possession. But in deciding Civil Appeal No. 118 of 1949, the learned Assistant Judge came to the conclusion that even the transfer of possession was a mere cloak to defraud the creditors. In effect, the decision was that possession was only nominal and was not in fact transferred. This decision would lead to the inference that defendant No. 1 or his guardian was not put in possession of the property at any time in 1940. This fact that possession had not been transferred by Dari to defendant No. 1 is well supported by the written statements of both defendant No. 1 and defendant No. 2. The person most vitally concerned in regard to this possession is defendant No. 1. The deed was in his favour. The deed was executed during his minority but the suit was filed after he attained majority and he himself claims in the present suit that he was never in possession of the suit property. This fact supports the reasoning adopted by the learned Assistant Judge in disposing of Civil Appeal No. 118 of 1949 that the transfer of possession was a cloak. If a person to whom the property is alleged to have been transferred states that he obtained no interest in the property and that he was not in possession of the property, then it would be reasonable to hold that the defendants failed to prove that defendant No. 1 was in possession of the property. An inference can, therefore, arise that the possession continued to be with the original vendor, namely, Dadu Babaji Dari the defendant in Civil Suit No. 533 of 1937.

This factual state of affairs is also admitted to be correct by defendant No. 2 in his written statement, although in the evidence that was given by him, he altered this position a little and contended that possession was with defendant No 1. The written statement of defendant No. 1 and the judgment in Civil Suit No. 533 of 1937 can only lead to one inference that defendant No. 1 was never in possession of this property. The defendants could not, therefore, put forward the claim of defendant No. 1 that possession was lost to Dari since 1940.

The next question is about the possession of defendant No. 2. Exh. 64 was produced by defendant No. 2 to show that he had become the purchaser of the disputed property at a court-sale held some time in 1934 and that the sale certificate was issued to him on November 13, 1934. Defendant No. 2 therefore, took up a contention in the written statement that since he was in possession from 1934 onwards, the plaintiff''s suit was barred. Plaintiff, however, produced Exh. 58 dated February 14, 1939 to show that the sale certificate given to defendant No. 2 was cancelled on that date. No claim can therefore, be made by defendant No. 2 that he had a right to be in possession of the property from 1934 onwards. In any case, his right to possession of the property was refused from and after February 14, 1939 when by the order of which Exh. 58 is a certified copy, the sale certificate was cancelled. His written statement was clearly to the effect that defendants Nos. 3 to 10 were in possession of the property from 1925 onwards. It is also to the effect that defendants Nos. 3 to 10 did not claim under defendants Nos. 1 and 2. The obvious inference that arises is that defendant No. 2 was never in possession of the suit property, so as to claim it as against the plaintiff. Since defendant No. 2 was not in possession, no claim on his behalf could be pressed to defeat the claims of the plaintiff under Article 142 of the Limitation Act.

The last question about possession is the claim of defendants Nos. 3 to 10. Although in the written statement a claim was made by defendants Nos. 3 to 10 that they were in possession to the exclusion of all other persons as owners for a period of more than 12 years, no one went into the box to prove their claim. Beyond the allegation in the written statement there is nothing on record to show that defendants Nos. 3 to 10 were ever in possession of this property or that they claimed this property at any time. From this discussion it is obvious that none of defendants Nos. 1 to 10 were in possession of the disputed property adversely to the original vendor Dadu Babaji Dari so as to defeat the claims of the present plaintiff. This discussion also shows that even if any of the defendants were in possession, they were in possession on behalf of the original vendor-judgment-debtor Dadu Dari and, therefore, Article 138 of the Limitation Act would apply to the facts of this case. The suit having been filed within 12 years from the date the sale became absolute, the suit is not barred by time.

I have already pointed out that in neither of the two decisions cited by the learned counsel for the appellants, namely, Dharani Kanta Lahiri Chowdhuri v. Gabar All Khan (1912) 17 C W N 389 (P C) and P. Natesa Nattar Vs. J.G. Daniel (Died) and Others, , has the point been specifically considered whether Article 137 or 138 applied or 142 applied. Mr. Shrikhande, however, referred to the decision in Ningappa Awwappa Vs. Danappa Sharnappa and Others, , wherein Lokur J. specifically dealt with the bar of limitation on the basis that the Article that would apply to an auction-purchaser when the judgment-debtor was out of possession would be 137. I have, of course, to mention that in that case no attempts seem to have been made by the other side to contend that the Article that would apply would be Article 142. Attempt was, however, made to show that the Article that would apply would be 144, but the learned Judge proceeded on the basis that to a suit filed by an auction-purchaser, when the judgment-debtor was out of possession at the date of the sale, Article 137 would apply. Since on facts I have held that the judgment-debtor was in possession when the sale became absolute and the sale did not become absolute more than 12 years before the filing of the suit, it is not necessary to consider this question any further.

The next point that was urged by Mr. Chitale was that the provisions of Order XXI, rule 103 have to be carefully scrutinised and applied to the instant case. His argument on this point was two-fold. The suit which is obviously not brought within one year from the date of the order refusing possession to the auction-purchaser, is barred by reason of Article 11-A of the Limitation Act. The second phase of this argument was that even if nobody except Yesabai was a party to the proceedings in execution, the claim of the plaintiff was barred as against the defendant also because Article 11-A of the Limitation Act was specific and clear. The relevant words of Article 11- A of the Limitation Act are that a suit by a person against whom an order has been made under the Code of Civil Procedure, 1908, upon an application by the purchaser of such property sold in execution of a decree, complaining of obstruction to the delivery of possession has to be brought within one year from the date of the order. The argument advanced by Mr. Chitale was that this Article 11-A has to be read along with the words of rule 103 of Order XXI of the Civil Procedure Code. This Rule reads as follows:

Any party not being a judgment-debtor against whom an order is made under rule 98, rule 99 or rule 101 may institute a suit to establish the right which he claims to the present possession of the property; but subject to the result of such suit (if any), the order shall be conclusive.

A plain reading of this Rule would show that in a particular contingency, the order obtained under rule 98, rule 99 or rule 101 would not be conclusive, but that if such contingency did not occur, then the said order would be conclusive. If this were the only meaning to be given to Order XXI, rule 103, then the consequences of not filing a suit as contemplated by Order XXI, rule 103 would be that the order in the summary proceedings taken under Order XXI, rule 99, namely, refusing possession to the purchaser as against the obstructor, would be conclusive. In other words, the plaintiff would not be able to displace the possession of the obstructor in any proceedings or by a suit. In the instant case, such a position does not help the defendants. In dealing with the question of limitation, regarding plaintiff''s case either under Articles 137, 138 or 142, I discussed the question of possession of the property and I held that neither defendant No. 1, nor defendant No. 2 was in possession of the property. Yesabai never claimed to have a right to possession and she is now dead. Even if, therefore, the order under Order XXI, rule 103 would become conclusive, that would only assist the possession of defendant No. 1 or the possession of Yesabai. I am not going into the question whether Yesabai was contesting the proceedings on her behalf or on behalf of defendant No. 1, who was her minor son. I will assume for the purpose of this argument that the claim was made by Yesabai on behalf of defendant No. 1. The utmost that could be said in regard to the effect of the conclusiveness of the order under Order XXI, rule 103 would be that the plaintiff would not be able to prove his claim for possession as against the right of defendant No. 1 to be in possession. But as I have already pointed out, defendant No. 1 denies that he was ever in possession of the property. If defendant No. 1 does not claim possession of the property, then the order holding that he was in possession even if it becomes conclusive is of no effect so far as the plaintiff is concerned. It cannot be held that defendant No. 1 was in possession of the property, nor does it debar present plaintiff from claiming possession from defendants other than defendant No. 1. Mr. Chitale, therefore, had to urge that in such cases where an application to remove obstruction made by the auction-purchaser is rejected and it is held that somebody else is in possession of the property, the plaintiff''s suit has to be to obtain a declaration for his immediate possession of the property. The emphasis of the argument was not so much upon the conclusiveness of the order under Order XXI, rule 103, but upon the cause of action to the plaintiff under Order XXI, rule 103.

It was urged that since plaintiff had to file a suit to establish his claim to immediate possession of the property and under Article 11-A of the Limitation Act, this suit had to be filed within one year, then irrespective of the question as to against whom it is filed, such a suit, if filed, more than one year after the order, was barred under the Article. Mr. Chitale contended that whether any of these defendants had objected or not, since the plaintiff''s suit on a cause of action was barred under Article 11-A after one year from the order passed in execution proceedings, the same could not be proceeded with not only against the original party in whose favour the order was passed in execution, but also against the others from whom possession was claimed by the plaintiff.

Mr. Shrikhande urged that one effect of holding that to every suit by an auction-purchaser against whom an adverse order is passed that somebody else was entitled to be in possession of the property, the limitation of one year applies under Article 11-A would lead to negativing the claim for possession by a person either under Article 137, 138, 142 or 144. Under these four Articles, a period of 12 years with a particular starting point has been given to a plaintiff seeking possession. If Article 11-A were to apply, then this period of 12 years would necessarily be restricted to one year only. The argument advanced by Mr. Shrikhande on this point was that there was no obligation upon a purchaser who wanted possession and who was obstructed by a third party to file an application to remove obstruction. He could sit tight upon his claim and file a suit at any time within 12 years for possession of the property. If, therefore, this option was available to the purchaser either to file an application for removal of obstruction immediately after the obstruction is offered or to ignore the obstruction altogether and wait for normal period of limitation for 12 years for filing the suit, then it stands to reason that if he applies, he does not lose his right to the full period of 12 years, except as otherwise provided by statute. Of course, the specific claim against the person in whose favour the order was passed by the executing Court would certainly be governed by Article 11-A and the result of not filing the suit would result in conclusiveness of the order in his favour under Order XXI, rule 103. But in respect of a person who had neither obstructed nor had an order in his favour, the normal period of limitation of 12 years would be available to the plaintiff.

This question further turns round on the point as to who are the necessary parties to a suit filed as provided in Order XXI, rule 103. If there was an obligation upon the purchaser to anticipate an obstruction to his possession or to imagine who were likely to obstruct his possession, then it would be possible to hold that the purchaser who files a suit upon an obstruction must not only make the obstructor a party but should also make others, who are interested in obstructing, parties to the suit. But, of course, such indefiniteness could never be expected in respect of such a suit; and the provisions of Order XXI, rule 103 of the CPC read with Article 11-A of the Limitation Act would only cover the ease of an obstructor in whose matter an adverse order is passed. The right which the plaintiff claims is certainly to get immediate possession, but the conclusiveness of the order would only be in favour of the obstructor who had received the order from the executing Court in his favour. An order received by an obstructor could not be taken advantage of by persons other than the particular obstructor who was a party to the proceeding. Necessarily, therefore, it must follow that the persons who were also likely to obstruct the claim of the purchaser but who had in fact not obstructed the claim, are not necessary parties to the suit contemplated under Order XXI, rule 103.

Mr. Chitale referred to a decision of the Sind Court in Mathradas v. Khemchand A I R. 1948 Sind 95. The learned Judges were in this suit concerned with a question whether persons other than the one obstructing the delivery of possession could he joined as party defendants or whether the suit would be bad for multifariousness. It appears that the decree-holder-auction-purchaser who was obstructed and against whom the order was made, brought a suit under Order XXI, rule 103 against the mother of the judgment-debtor who obstructed the delivery of possession and also joined her sons in occupation of the property as defendants. It was held by the Sind Court that the suit was not bad on the ground of multifariousness. Although the question of parties was considered in this case, the specific point.before me was not before the learned Judges. The question before the learned Judges was whether in addition to the obstructor who had obtained, an order in his favour, other persons could also be made parties, and the decision was that they could be made parties without, affecting the suit by reason of multifariousness. The point in the instant case, however, is materially different. The point that arises in this case is whether persons other then the obstructor must also be made parties on the ground that they are also interested in denying the claim of the plaintiff, so that an ultimate conclusion could he reached that if such a suit were not filed as provided for under Article 11-A of the Limitation Act within one year, then such a claim by the plaintiff against those other persons who had not obstructed would also be barred. This decision of the Sind Court does not touch this point at all and the reason is not far to seek. The suit provided for under Order XXI, rule 103 is by a person against whom an order for possession has been passed to prove his right, to immediate possession of the property.

Advisedly, the mention of defendants to this suit has not been made in Order XXI, rule 103. There arc a number of decisions on the point whether the order passed under Order XXI. rule 99 has to be necessarily set aside in such a suit and the consensus of opinion is to the effect that this particular order which would be otherwise conclusive except for the filing of the suit has not to be set aside. In ether words, except for the fact that a suit has to be filed within one year to establish the right, there is no connection between the order that is passed and the suit that is to he filed. If this be so, then the question of parties can be considered on a, different footing altogether. If a person brings his suit to establish his right to immediate possession of the property, then whether the suit is hide only against the obstructor or the obstructor and others is a matter of little consequence. Whether the suit is filed against the obstructor or the obstructor and others, the suit is one to establish an immediate right to possession of the property, and by making the obstructor a party, the person in whose favour the order is passed is also brought before the Court, so that it cannot be urged that the order was passed behind his back. The decision given by the bind Court is, therefore, proper on this hypothesis that the suit need not necessarily be against the obstructor only but the cause of action in the suit should be to establish the present right to possession. Every suit, therefore, brought within one year, in which the right denied to the plaintiff in execution is claimed would, be a suit as contemplated by Order XXI, rule 103.

Another decision on which reliance was placed by AIR 1938 300 (Nagpur) In the case of a similarly situated purchaser who had filed a suit not only against the obstructor but also against the judgment-debtor, Niyogi J. of the erstwhile Nagpur High Court held that the suit would not be bad for multifariousness. This case stands on the same footing on which the Sind decision stands, namely, that if persons other than the obstructor are made parties to a suit contemplated under Order XXI, rule 103, the suit does not cease to be under that provision nor does such a suit become bad for multifariousness. The questions specifically raised before me did not arise in any of these two decisions. Considering the consequence which is provided for under Order XXI, rule 103, it is clear that advantage of the non-filing of a suit within one year would only be taken by a person in whose favour the order under Order XXI, rules 98, 99 and 101 was passed. I have earlier pointed out that it would be too much to expect a purchaser who has been obstructed by one person to anticipate that others would also be interested in obstructing him and that, therefore, to make those persons also parties to the suit. No plaintiff could be left to speculate to find out persons who would also be interested in denying his right. In other words, the suit in such case would be a suit against the world and that is not what is contemplated under Order XXI, rule 103. There is, therefore, no substance in this contention that persons other than the obstructor who are likely to dispute the title of the purchaser are also necessary parties to the suit under Order XXI, rule 103, so as to make such a suit against them barred, if filed after one year in view of Article 11-A of the Limitation Act.

In this connection, a reference may be made to a decision of the Madras High Court in Kotrike Venkata Ramiah Chetty Vs. Chinna Pulliah and Another, . This was an uncommon suit. The plaintiff in this suit became a purchaser at a court-auction. The sale was confirmed and full satisfaction was entered on the decree. When this plaintiff attempted to obtain possession of the property, he was obstructed. An order was passed by the Court that the obstructor was entitled to continue in possession. Plaintiff then brought this suit against the mortgagee-decree-holder for recovery of money on the ground of failure of consideration. One reasoning adopted by the plaintiff appeared to be that since the auction-purchaser was held not entitled to possession as against the obstructor, the auction-purchaser had lost all rights in the property. The consideration, therefore, having failed, ho applied for the return of the purchase price. In dealing with the question whether this cause of action was a sound one, the learned Judge of the Madras High Court observed as follows (p. 42):

This argument in my opinion misses the real spirit and purpose of the provision in role 103. The order does, no doubt, become conclusive, but only as between the parties to it, unless displaced by the result of the suit to be instituted by the party against whom the order is made. That does not mean that as against persons who are not parties to the order it can be hold up by the party against whom it is made, as in this ease is being done by the plaintiff, as conclusively proving the absence of any title in himself in the property in question and as affording him a cause of action on the basis of such want of title.

Mr. Shrikhande''s argument on the strength of this decision of the Madras High Court was that so far as the auction-purchaser''s title is concerned, it was kept intact in spite of the order for possession to the contrary passed by the executing Court. If such a title had not been touched by the order, then necessarily it must follow that the title was capable of being enforced even to get possession as against persons other than the obstructor after one year and as against the obstructor during the course of one year by filing a suit.

The result is that the plaintiff''s claim is not barred either under Article 11-A or under Order XXI, rule 103 as against defendants Nos. 3 to 10 and also defendants Nos. 11 and 12. So far as defendants Nos. 1 and 2 are concerned, I have already held that they disclaim possession and that they were not in possession. There is, therefore, no impediment to the plaintiff''s claim for possession by anything done by defendants Nos. 1 and 2.

Lastly it was urged by Mr. Chitale that defendants Nos. 3 to 10 were adversely in possession of the property for more than 12 years openly as of right. None of defendants Nos. 3 to 10 led evidence to show that they were in possession. As far as actual possession is concerned, I have already held that whoever was in actual possession of the property was holding the same on behalf of the original judgment-debtor Dadu Babaji Dari. There is no proof at all of defendants Nos. 3 to 10 or defendants Nos. 11 and 12 being adversely in possession of the property as of right at any time. The defendants, therefore, also failed to prove that a claim by adverse possession has materialised in favour of defendants Nos. 3 to 10 or defendants Nos. 11 and 12 or incidentally through defendants Nos. 3 to 10 in favour of defendants Nos. 1 and 2.

In the result, the appeal fails and is dismissed with costs.