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Advocates
  • Tek Chand and H.L. Sarin
  • Shamair Chand and F.C. Mital
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  • Kapur, J.
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Advocates
  • Tek Chand and H.L. Sarin
  • Shamair Chand and F.C. Mital
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  • Kapur, J.
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Smart Summary

Reported Opinion: Kapur, J. — Second Appeal (appeal dismissed)

Factual and Procedural Background

This second appeal was brought by the defendants against a judgment and decree dated 12 July 1952 of the District Judge, Karnal, affirming the trial court's decree in favour of the plaintiffs.

The operative facts as stated in the opinion:

  • On 5 August 1944 Chaman Lal sold 39 bighas 14½ biswas of land to Asa Ram, Paras Ram and Dalip Singh for Rs. 10,000.
  • Chaman Lal's sister's son, Sham Sarup, brought a suit for preemption which was decreed on 8 November 1944. On 18 November 1944 Sham Sarup sold his rights under that preemption decree and the land to Gainda Ram and Ladli Parshad (the present plaintiffs) for Rs. 15,000 (Exhibit P.1).
  • Sham Sarup deposited Rs. 10,000 (the decretal amount) on 8 December 1944; the amount was withdrawn by the vendees, Asa Ram and others.
  • Gainda Ram and Ladli Parshad applied for execution on 5 March 1945 (Exhibit D.4) but that application was dismissed on the ground that the preemption decree was a personal decree and could not be transferred, relying on Mehr Khan v. Ghulam Rasul.
  • On 15 June 1945 Sham Sarup issued execution; a warrant of possession was issued on 16 June 1945. On 24 June the bailiff reported (Exhibit P.4) that actual physical possession of part and symbolical possession of the rest had been given.
  • Proceedings followed: the court asked the judgment-debtors to show cause (13 July 1945); they filed objections (10 August 1945) admitting possession had been taken and seeking compensation for standing crop and manure; on 13 October 1945 Sham Sarup requested the file be consigned to the Record Room and the execution proceeding was dismissed as unsatisfied (Exhibit D.2 / D.9).
  • Sham Sarup took out a further execution on 14 February 1949 (warrant issued 17 February 1949); that execution was dismissed as unsatisfied on 12 July 1952.
  • Separately, on 31 July 1945 Chhoto (wife of Chaman Lal) brought a preemption suit which was decreed (15 July 1946) and she took symbolic possession (18 August 1946). The present plaintiffs successfully appealed (allowed 1 February 1947) and thereafter obtained possession (actual in part and symbolic for the rest) on 13 April 1947 under procedures including Section 144 read with Section 47. Asa Ram and others later obtained restitution by order of the executing court (30 July 1947) and physical possession on 5 August 1947 (Exhibit D.8).
  • On 13 December 1948 the plaintiffs sued for possession relying on Exhibit P.1. The defence contended (inter alia) that: the sale was not of the property but only of a right to execute the decree (which could not be transferred); Sham Sarup had never obtained possession; Section 47 C.P.C. barred the suit; and the 13 October 1945 order operated as res judicata.
  • Both the trial court and the District Judge decreed the plaintiffs' suit; the District Judge held the defendants were trespassers, the 13 October 1945 order did not operate as res judicata against the plaintiffs, and that Sham Sarup (or the plaintiffs) had obtained actual physical possession of part and symbolic possession of the rest. The defendants appealed; Kapur J. heard the second appeal and delivered the opinion summarised here.

Legal Issues Presented

  1. Whether, under Order XX, rule 14(1)(b) C.P.C., title to the preempted property vests in the preemptor upon payment of the purchase money into court.
  2. Whether a transferee from such a preemptor (who acquired rights by sale) is a "representative" of the preemptor within the meaning of Section 47(1) C.P.C. and thereby barred from bringing a separate suit.
  3. Whether the plaintiffs had obtained such actual or symbolical possession as to dispossess the judgment-debtors and thereby avoid the bar of Section 47.
  4. Whether a subsequent statement by the preemptor (Sham Sarup) asking that an execution file be consigned to the Record Room and the execution be dismissed binds the transferees (the plaintiffs) and defeats their title or possession.
  5. Whether the earlier executing-court order (dated 13 October 1945) operates as res judicata to bar the plaintiffs' claim.

Arguments of the Parties

Appellants' (Defendants') Arguments

  • Primary reliance on the bar of Section 47 C.P.C.: appellants contended that Sham Sarup's suit and any rights derived from it were subject to Section 47 and that the plaintiffs are "representatives" of Sham Sarup within Section 47(1), thus barring their separate suit.
  • Submission that Sham Sarup, without obtaining actual possession, had no title to the preempted property and therefore could not transfer title to the plaintiffs.
  • Submission that Exhibit D.2 (order of 13 October 1945) operated as res judicata and prevented the plaintiffs from pursuing the present suit.
  • Argument that any statement made by Sham Sarup (requesting execution be consigned to the Record Room/dismissed as unsatisfied) should affect or extinguish subsequent claims based on the same decree.

Respondents' (Plaintiffs') Position as Recorded in the Opinion

  • The plaintiffs relied on Exhibit P.1 (the sale deed from Sham Sarup) to show they acquired not only the right to execute the decree but also Sham Sarup's right, title and interest in the land.
  • They maintained that they obtained actual physical possession of a part of the property and symbolical possession of the rest (matters reflected in executing-court reports and orders), and that such possession was adequate to dispossess the judgment-debtors.
  • They contended that any statement or action by Sham Sarup made after he had transferred his rights could not bind them.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court in This Opinion
Mehr Khan v. Ghulam Rasul, I.L.R 2 Lah. 282 Held that a decree for preemption is not capable of transfer so as to enable the transferee to obtain possession in execution. Was relied on by the executing court to dismiss the plaintiffs' early execution application; the opinion recognises that order but treats that finding as relating to execution and not as placing the plaintiffs within Section 47's prohibition if they otherwise had title and possession.
Ramasami Pattar v. Chippan Asari, I.L.R 24 Mad. 449 at p. 463 Held that title could not pass unless a document executed in accordance with Section 54, Transfer of Property Act, was executed. The court observed that the words added in Order XX, rule 14(1)(b) supersede that opinion and that title accrues on payment into court without necessity of a registered document.
Nadir Ali Shah v. Mali, I.L.R 5 Lah. 486 Interpreted the words of Order XX, rule 14 to mean that title vests in the preemptor on payment of the purchase money. Used as supporting authority to hold that Sham Sarup's title accrued on deposit and that he could pass title to the plaintiffs.
Hadyat Ullah v. Ghulam Mohammad, 73 I.C. 444 Held that title of the preemptor accrues from the date of payment into court after the decree. Relied upon (through Nadir Ali Shah) as an earlier authority recognising accrual of title on payment into court.
Fateh Chand v. Moti Singh, A.I.R 1935 Lah. 523 Held similarly that title vests in the preemptor from the date of payment. Added to the body of authority supporting title accrual upon deposit under Order XX, rule 14.
Mohammad Saddiq v. Ghasi Ram, A.I.R 1946 Lah. 322 Full Bench view that title vests in the preemptor from the date of payment. Invoked to strengthen the proposition that payment confers title on the preemptor.
Ram Lal v. Harpal, A.I.R 1929 All. 237 Division Bench view that under Order XX, rule 14(b) the title of the preemptor accrues from the date of deposit. Used to support the conclusion that Sham Sarup acquired title on deposit and could pass it to the plaintiffs.
Ram Kali v. Gowardhan Lal, A.I.R 1935 Lah. 612 Recognised that symbolical possession is effective between parties as actual physical possession for dispossessing the judgment-debtor. Relied on to hold that the plaintiffs' symbolical possession (plus part actual possession) was sufficient to dispossess the judgment-debtors.
Mohammad Saadat Ali Khan v. Punjab National Bank, A.I.R 1941 Lah. 357 Held symbolical possession by the decree-holder is sufficient to break continuity of adverse possession of the judgment-debtor and binding on transferees from the judgment-debtor. Used to support the effectiveness of the plaintiffs' symbolical possession against the defendants.
Gokal Chand v. Sundar Singh, A.I.R 1949 E.P. 282 Same view taken by this court (effectiveness of symbolical possession). Invoked to show precedent in this court aligning with the view that symbolical possession can be sufficient.
Subbarya Goundan v. Samiappa Goundan, A.I.R 1946 Mad. 529 Division Bench held Section 47 is not a bar where symbolical possession obtained by decree-holder amounts to actual possession vis-à-vis judgment-debtor and his representatives. Applied to support the conclusion that plaintiffs' possession prevented Section 47 from operating as a bar to their suit.
Adyanth Ghatak v. Krishna Prasad Singh, A.I.R 1949 P.C. 124 Privy Council held symbolical possession of property in occupation of a tenant of the judgment-debtor effectively terminates the possession of both judgment-debtor and tenant. Relied upon to bolster the conclusion that symbolical possession extinguished the defendants' possession for purposes of this dispute.
Radha Krishna Chendarji v. Ram Bahadur, 22 C.W.N. 330 Affirmed view that symbolical possession can terminate a prior occupier's possession. Also cited as supporting authority for the effect of symbolical possession.
Bank of Upper India Ltd. v. Robert Hercules Skinner, I.L.R 1942 Lah. 686 P.C. Held that an acknowledgment or admission by a party made after he had parted with all his interests does not bind the purchaser. Applied to hold that Sham Sarup's later statement (after transfer) could not bind the plaintiffs and did not defeat their possession or title.

Court's Reasoning and Analysis

The court's legal analysis proceeded in a sequence reflecting the issues raised:

  1. Interpretation of Order XX, rule 14(1)(b) C.P.C.: The court focused on the phrase “whose title thereto shall be deemed to have accrued from the date of such payment.” Noting prior contrary authority (Ramasami Pattar) that required a registered document, the judge observed that the words now in the rule supersede that view and cited a series of decisions (Lahore and Allahabad authorities) holding that the preemptor's title vests on payment into court. Applying those authorities, the court concluded Sham Sarup's title accrued upon deposit of the decretal money, so he had a transferable title which he conveyed by Exhibit P.1.
  2. Effect of Section 47(1) C.P.C. and the meaning of "representatives": Section 47(1) bars separate suits between parties to the decree (or their representatives) concerning execution, discharge or satisfaction of the decree, leaving such questions to the executing court. The court observed that what is barred are questions relating to execution, discharge or satisfaction. The earlier executing-court order (Exhibit D.3) had held the decree incapable of transfer and therefore the transferee could not execute. The judge reasoned that if a person cannot execute a decree then Section 47's bar does not place him within the definition of "representatives" for the purpose of the statute. Thus, the mere fact that the plaintiffs derive from Sham Sarup did not automatically render them representatives barred by Section 47; particularly, because by Exhibit P.1 they had acquired title and possession independent of an executing-court remedy.
  3. Possession: The court reviewed the execution history and the executing-court reports showing that actual physical possession of a portion and symbolical possession of the remainder had been taken by the decree-holder (Sham Sarup) and/or the plaintiffs. The District Judge's factual finding that possession had passed to the plaintiffs was affirmed. The court relied on several precedents establishing that symbolical possession is effective between parties, sufficient to dispossess the judgment-debtor and to interrupt continuity of adverse possession. The defendants' admission (in their compensation application) that possession had been taken was also treated as corroborative. On that basis, Section 47 was held not to bar the plaintiffs' suit.
  4. Effect of Sham Sarup's later statement withdrawing execution: The court applied the principle in Bank of Upper India Ltd. v. Robert Hercules Skinner that an acknowledgment or admission made by a party after he had parted with all his interests does not bind the purchaser. The judge concluded that Sham Sarup's statement (requesting the file be consigned and the execution dismissed for the time being) could not prejudice the plaintiffs who had acquired title and possession prior to that statement; moreover, in any event the possession already taken could not be undone by that statement.
  5. Res judicata and earlier executing-court orders: While an executing-court order that the decree was incapable of transfer would operate as res judicata in proceedings inter se, the judge distinguished between the scope of execution remedies and the plaintiffs' suit founded on title and possession acquired by transfer from the preemptor. He held that the earlier order did not prevent the plaintiffs from suing in respect of their title and possession as established in the record.
  6. Synthesis: Combining these points the court concluded (expressly listing holdings) that deposit confers title on the preemptor; a transferee under such circumstances is not a "representative" within Section 47(1); the plaintiffs had obtained sufficient possession (actual in part, symbolical in the rest); defendants' admissions supported that finding; and Sham Sarup's later statement did not affect the plaintiffs' rights.

Holding and Implications

APPEAL DISMISSED.

Holding (core rulings as stated in the opinion):

  • On deposit of decretal money under Order XX, rule 14 of the C.P.C., the preemptor acquires title to the preempted property.
  • A transferee from such a preemptor (purchaser under Exhibit P.1) is not a "representative" of the preemptor within the meaning of Section 47(1) C.P.C. for the purpose of invoking the Section 47 bar to a separate suit.
  • The plaintiffs had obtained actual possession of a portion of the property and symbolical possession of the remainder, which sufficed to dispossess the judgment-debtors.
  • It was found by the learned judge that possession had passed to the plaintiffs and that the defendants admitted possession had passed (in their compensation application).
  • Accordingly, Section 47 C.P.C. could not be held to bar the plaintiffs' suit.
  • Any statement by Sham Sarup after he had parted with his rights could not bind the plaintiffs.

Direct consequences and implications:

  • The decree and judgment of the courts below in favour of the plaintiffs were affirmed; the defendants' second appeal was dismissed with costs throughout.
  • The decision determines the rights of the parties in this litigation: the plaintiffs' title and possession claims (as found by the courts below and affirmed) succeed; the defendants remain dispossessed and are treated as trespassers in respect of the portions so possessed.
  • The opinion does not, on its face, announce or characterise the creation of any novel broader precedent beyond applying and aligning existing authorities: the judgment applies established principles about accrual of title on deposit under Order XX, rule 14 and about the legal effectiveness of symbolical possession and the limits of Section 47. The opinion therefore confines its outcome to the direct effect on these parties and the legal holdings set out above.

Disposition: Appeal dismissed (costs awarded to respondents).

Show full summary ...

    Ram Singh And Others v. Gainda Ram And Others

    Kapur, J.:— This second appeal is brought by the defendants against a judgment and decree of Mr. Sansar Chand Bhandari, District Judge, Karnal, dated the 12th July, 1952 affirming the decree of the trial Court decreeing the plaintiffs' suit.

    2. The facts of this case are rather complicated and may be stated at some length, Chaman Lal sold 39 Bighas 14½ biswas of land on the 5th August, 1944 to Asa Ram, Paras Ram and Dalip Singh for a sum of Rs. 10,000. Chaman Lal's sister's son Sham Sarup brought a suit for preemption which was decreed on the 8th of November 1944 and on the 18th of November he sold his rights to Gainda Ram and Ladli Parshad, the present plaintiffs, for a sum of Rs. 15,000 by a document, Exhibit P. 1. The sale was of the land, that is 39 Bighas 14½ biswas with all rights appurtenant thereto and of the rights which Sham Sarup had in the preemption decree. He stated in the sale deed “I transfer all rights that I possess under the decree” and it was also stated in the sale deed that the possession which Sham Sarup bad, had been delivered and actual physical possession might be obtained by execution. Prior to this sale on the 8th December, 1944 Sham Sarup had deposited the amount mentioned in the decree, that is, Rs. 10,000 which was withdrawn by the then vendees Asa Ram and others. On the 5th of March 1945, Gainda Ram and Ladli Parshed applied for execution of the decree which is shown by Exhibit D. 4, but this application was dismissed on the ground that the preemption decree was a personal decree and could not be transferred. Reliance was there placed on Mehr Khan v. Ghulam Rasul . I.L.R 2 Lah. 282., where it was held that a decree for preemption is not capable of transfer, so as to enable the transferee to obtain possession of the preempted property in execution.

    3. On the 15th of June, 1945, Sham Sarup took out execution, and warrant for possession was issued on the 16th June. On the 24th June, the bailiff made a report Exhibit P. 4 that actual physical possession of a part and symbolical possession of the rest had been given. On the 13th of July, 1945 the court issued an order, Exhibit D.9, to the judgment-debtors, to show cause why actual physical possession of the rest should not be given, and the judgment debtors showed cause. On the 10th of August, 1945, they filed objections in which it was admitted that such possession had been taken, and compensation was asked for on account of the crop which was standing and for manure and also it was stated that physical possession of the rest could not be taken because judgment-debtors' crop was standing. Sham Sarup on the 13th October, 1945, made a statement “for the present the file be consigned to the Record Room” and the order of the court was “according to the statement of the decree-holder dismissed as unsatisfied.”

    4. On the 14th February, 1949, Sham Sarup took out another execution. Warrant was issued on the 17th February, 1949, but again it was dismissed as unsatisfied on the 12th July, 1952.

    5. Another litigation was started on the 31st July, 1945, Chhoto wife of Chaman Lal brought a suit for preemption in regard to the sale by her husband which was decreed on the 15th July, 1946, and on the 18th August, she took symbolical possession by Asa Ram and others executing a lease in her favour. An appeal was taken against this decree by the present plaintiffs Ladli Parshad and Gainda Ram which was allowed on the 1st February, 1947 and the suit of Chhoto was dismissed. Ladli Parshad and Gainda Ram applied under Section 144 read with section 47 of the Civil Procedure Code for restitution, and on the 13th April, 1947 actual possession of a part and symbolical possession of the rest was taken by them. On the 9th May, 1947 Asa Ram and others made an application under sections 47 and 144 of the Civil Procedure Code for restitution and this application was allowed on the 30th July, 1947 by an order of the executing Court, Exhibit D.14 Thus Asa Ram and others obtained possession “by way of restitution of the land,” and obtained actual physical possession on the 5th August, 1947, which is clear from Exhibit D.8

    6. Gainda Ram and Ladli Parshad then brought a suit for possession on the 13th December, 1948 on the basis of their title under the deed of sale Exhibit P. 1. The defence was that there was no sale of property, but there was mere transfer of a right to execute the decree and as that right could not be transferred it was void, that Sham Sarup never obtained possession, that section 47 of the Civil Procedure Code is a bar to the suit and that Exhibit D. 2, order dated the 13th October, 1945, operated as res judicata. Both the courts below decreed the suit. The District Judge has held that defendants Nos. 1 to 3 were no longer judgment-debtors but were trespassers and therefore the suit could be brought; that the order dated the 13th October, 1945, did not operate as res judicata that Sham Sarup had obtained actual physical possession of a part of the property and symbolical of the rest and on these grounds he affirmed the decree of the trial court.

    7. Mr. Tek Chand for the appellants had in the fore-front of his arguments placed the bar of Section 47 to the maintainability of the present suit and has submitted that as Sham Sarup's suit would be barred under Section 47 the suit of the plaintiffs should also be barred because they are representatives within the meaning of that word as used in Section 47(1) of the Civil Procedure Code. But this argument is unsustainable. By the deed of transfer. Exhibit P. 1, Sham Sarup transferred to the plaintiffs not only the right to execute the decree but also his right, title and interest in the property, that is, 39 bighas 14½ biswas and therefore the plaintiffs obtained by this transfer not only the right to execute but also the ownership of the land in dispute.

    8. An objection was taken by Mr. Tek Chand that without getting possession Sham Sarup had no title in the property preempted and therefore he had nothing which he could pass by the sale deed to the plaintiffs. In Order XX, rule 14(1)(b) it is provided:—

    “14(1) Where the court decrees a claim to preemption in respect of a particular sale of property and the purchase money has not been paid into court, the decree shall

    (a) ****

    (b) direct that on payment into court of such purchase money, together with the costs (if any) decreed against the plaintiff, on or before the pay referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase money and the costs (if any) are not so paid, the suit shall be dismissed with costs.”

    9. The question arises then as to what is the meaning of the words “whose title thereto shall be deemed to have accrued from the date of such payment.” It had been held in Ramasami Pattar v. Chippan Asari . I.L.R 24 Mad. 449 at p. 463., that title could not pass unless there was a document executed in accordance with section 54 of the Transfer of Property Act. These words which I have mentioned and which were added in this rule supersede the opinion expressed by the Madras High Court and therefore the result is that a title of pro emptor accrues on payment of the purchase money and no registered document is necessary to effect that. A Division Bench of the Lahore High Court in Nadir Ali Shah v. Mali . I.L.R 5 Lah. 486., held that these words clearly show that the title to the property vests in the preemptor on payment of the purchase money. Reliance in that case was placed on a judgment of Campbell, J. in Hadyat Ullah v. Ghulam Mohammad . 73 I.C 444., where it was held that the title of the preemptor shall be deemed to have accrued from the date of payment into court of the purchase money after the decree. Another Division Bench of the Lahore High Court in Fateh Chand v. Moti Singh . A.I.R 1935 Lah. 523., took the same view, and a Full Bench of that court in Mohammad Saddiq v. Ghasi Ram . A.I.R 1946 Lah. 322., held that the title vests in the preemptor from the date of payment. The same view was taken by the Allahabad High Court in Ram Lal v. Harpal . A.I.R 1929 All. 237., where a Division Bench held that under Order XX, rule 14(b), the title of the pre-emptor to the property accrues from the date of the deposit. Thus the title of Sham Sarup accrued to the pre-empted property from the date of payment and therefore he had a right to sell the proparty, and could pass a good title to the property by executing Exhibit P. 1.

    10. The second question which arises in connection with this part of the case isr Whether the plaintiffs could be held to be the representatives within the meaning of Section 47, Civil Procedure Code, of Sham Sarup. Section 47(1) runs as follows:—

    “47(1). All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.”

    11. What is barred by Section 47(1) is the decision of any question which arises between the parties to the suit or their representatives and which relates to the execution, discharge or satisfaction of the decree. On the 15th June, 1945 in a proceeding which was inter se an order was passed Exhibit D.3 in Which it was held that the present plaintiffs could not execute the decree against the judgment-debtors of Sham Sarup on the ground that the decree was incapable of being transferred as it was a personal right. Reliance there was placed on Mehr Khan v. Ghulam Rasul. That order itself would operate as res judicata irrespective of whether that order is right or wrong. The finding that the decree in favour of Sham Sarup was incapable of transfer and therefore the present plffs., had no right to execute would place the present plffs. outside the definition of the word “representatives” and that is also clear from the wording of Section 47 of the Code. What is barred is “all questions in regard to execution, discharge or satisfaction”, and if a person cannot execute a decree section 47 cannot be bar and therefore in my opinion he cannot be a representative within the meaning of that word. The bar of section 47 which was pleaded therefore would on this ground alone be not applicable to the respondents, the plaintiffs.

    12. The next question is whether any possession was taken by the plffs., and what was the nature of that possession. I have at a previous place given the history of the case in the execution department. That shows that actual physical possession of a portion and symbolical possession of the rest was taken. The finding of the District Judge on this point is also in favour of the plffs. Symbolical possession is as effective between the parties to the proceedings as actual physical possession and is sufficient to dispossess a party to the proceedings and effectuates the passing of possession from one to the other. It was so held in Ram Kali v. Gowardhan Lal . A.I.R 1935 Lah. 612.. In Mohammad Saadat Ali Khan v. Punjab National Bank . A.I.R 1941 Lah. 357., Din Mohammad, J. held that the symbolical possession by the decree-holder is sufficient to break the continuity of adverse possession of the judgment-debtor and it is binding on the transferee from the judgment-debtor. In this court also the same view has been taken in Gokal Chand v. Sundar Singh . A.I.R 1949 E.P 282.. In Subbarya Goundan v. Samiappa Goundan . A.I.R 1946 Mad. 529., a Division Bench held that Section 47 is not a bar to the suit as the symbolical possession obtained by the decree-holder amounts to actual physical possession so far as the judgment-debtor and his representatives are concerned and therefore the suit brought by the purchaser is not barred under Section 47. The Privy Council in Adyanth Ghatak v. Krishna Prasad Singh . A.I.R 1949 P.C 124., held that symbolical possession of property found to be in occupation of a tenant of the judgment-debtor effectively terminates the possession of both the judgment-debtor and the tenant. The same view was taken by their Lordships in Radha Krishna chendarji v. Ram Bahadur . 22 C.W.N 330..

    13. Besides this there is the fact that the defendants asked for compensation on the 10th August, 1945 in the executing court after the report of the possession was made. Taking all these facts into consideration I am of opinion that the possession had passed to the plffs., and therefore section 47 cannot be held to be a bar.

    14. The next question raised by Mr. Tek Chand was that Sham Sarup had made a statement as a result of which the execution was dismissed as unsatisfied. Merely because Sham Sarup, who at that time had no rights left as he had sold his ownership in the property to the plffs., stated something which may or may not mean anything, cannot take the rights of the plffs. In the Bank of Upper India Ltd. v. Robert Hercules Skinner . I.L.R 1942 Lah. 686 P.C., it was held that an acknowledgment made by a party after he had parted with all his interests would not bind the purchaser. Applying that principle anything which was done by Sham Sarup after he had parted with his rights would not be binding on the plffs. Even if what was stated by Sham Sarup was binding on the plffs. it cannot effect the merits of this case as the possession that had already been taken by the plffs., could not thereby be wiped out and it could not be said that there was no possession merely because Sham Sarup had stated that he did not want to proceed with the execution application and asked that it be dismissed for the time being. I therefore hold that—

    (1) On deposit of decretal money the preemptor gets title to the property preempted under Order XX, rule 14 of the Civil Procedure Code.

    (2) A transferee from such a preemptor is not a representative within the meaning of the word “representative” as used in section 47 of the Civil Procedure Code.

    (3) the plaintiffs had obtained actual possession of a portion of the property in dispute and symbolical possession of the rest and it was a sufficient dispossession of the judgment-debtors.

    (4) it has been actually found by the learned judge that possession had passed to the plaintiffs.

    (5) there was an admission of the defendants that possession had passed in the application which they made for compensation.

    (6) under these circumstances Section 47 cannot be a bar to the bringing of the present suit by the plffs.; and

    (7) any statement made by Sham Sarup is not a statement made on behalf of the plffs., as at that time Sham Sarup had no title in the property.

    15. I would therefore dismiss this appeal with costs throughout.

    16. Appeal dismissed.

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    Comments

    Ram Singh And Others v. Gainda Ram And Others
    (Nov 12, 1952)