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Case Number

First Appeal No. 180 of 1947

Attorney(S)

D.N. Awasthy and Y.P. Gandhi
K.S. Thapar and D.K. Mahajan
for Respondent No. 3

Judges

Hon'ble Mr. Justice Jiwan Lal Kapoor
Hon'ble Mr. Justice Ranbir Chand Soni

Acts

Article appli-cale is Article 144 of the Limitation Act.
Order VII, Rule 7 of the Code of Civil Procedure.
Section 65 of the Code of Civil Procedure
CIVIL PROCEDURE CODE
Article 138 of the Limitation Act
Order XXI, Rule 36
Order XXI, Rule 95

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This appeal was brought by the plaintiff Abdul Basit against a judgment and decree of the Subordinate Judge, Delhi (dated 24 February 1947) which dismissed his suit for possession and for mesne profits (para 1).

Relevant facts (concise and limited to those appearing in the opinion): The house bearing No. 2181 was originally purchased by Abdul Alim (defendant No.1) and his two brothers (para 2). Abdul Alim mortgaged his share by two mortgages (26 July 1928 for Rs. 5,000 and 2 May 1929 for Rs. 4,000) in terms that included delivery of possession to the mortgagee and payment of profit at specified rates (paras 2–3, 9). After a partition, the whole house fell to Abdul Alim (August 1930), substituting this house for earlier mortgaged property (para 3).

In earlier proceedings Abdul Alim was held liable in account proceedings; execution led to sale of Abdul Alim’s right, title and interest, purchased by Abdul Basit on 8 July 1939 and confirmed on 16 August 1939 (certificate dated 2 November 1939). The plaintiff relied on Section 65 of the Code of Civil Procedure for vesting of title (para 4).

Mohammad Saeed (mortgagee) sued on 1 August 1940; mortgagee rights were later acquired by Mohammad Rafi. That suit resulted (after appeals and a Full Bench reference on the nature of the mortgage) in a preliminary decree for sale dated 3 December 1945 (paras 7, 13).

Abdul Basit brought the present suit on 28 June 1944 claiming possession and mesne profits (para 8). The trial Court dismissed the suit on two grounds: (i) that the suit was not maintainable unless the plaintiff paid into Court the amount of the mortgage decree (in favour of Mohammad Rafi), and (ii) that the plaintiff’s title had not been perfected because he had not obtained symbolical possession after confirmation of sale (para 8). Abdul Basit appealed (para 8).

Subsequent events (after the trial judgment but before and during appeal) included: Mohammad Rafi’s purchase in execution on 22 May 1950 (para 9); and an independent suit by Abdul Basit (2 June 1950) in which an arbitrator and subsequently a decree (18 August 1950) declared Abdul Basit to be the real owner of the mortgagee rights — making him owner of both the mortgagee rights and the equity of redemption (para 16).

Legal Issues Presented

Whether the Appellate Court should take into consideration facts and changes which came into existence after the trial Court's decision but before or during the appeal (explicitly framed by the opinion) (para 11).
Whether the plaintiff's suit for possession was maintainable without paying into Court the amount of the mortgage decree (an issue decided by the trial Court and addressed on appeal) (para 8, 12).
Whether an auction-purchaser's title to immovable property (purchased at Court sale) becomes perfect only upon obtaining symbolical/actual possession, or whether the title vests on confirmation of sale under Section 65 and the provisions of Order XXI (paras 13–14).
The applicability of the Limitation Act (Article 138 and Article 144) to an auction-purchaser's claim for possession, and whether time runs from confirmation of sale or from taking symbolical possession (para 14).

Arguments of the Parties

Appellant (Abdul Basit) — principal arguments presented in the opinion

The appeal court should consider events and facts that came into existence after the trial Court's decision (para 11, drawing on authorities quoted in para 17–20).
Under Section 65 of the Code of Civil Procedure and the scheme of Order XXI, an auction-purchaser's title vests on confirmation of the sale and does not depend on obtaining symbolical possession; therefore the absence of symbolical possession did not prevent perfection of his title (paras 13, 22).
Under Article 138 of the Limitation Act the time for suit by an auction-purchaser begins to run from the date the sale becomes absolute; Article 144 applies when symbolical possession is obtained (para 14 — this is attributed to appellant's advocate as reported in the opinion).

Respondents / Trial Court position (as reported in the opinion)

The trial Judge held the suit not maintainable by the plaintiff without his paying into Court the amount due under the mortgage decree (para 8).
The trial Judge held that the plaintiff's title had not been perfected because he had not taken symbolical possession after confirmation of sale (para 8).
The trial Judge relied on earlier Lahore decisions (e.g., Ram Chand v. Jana; Ram Chand v. Gopal Singh) to support the view that an auction-purchaser's title may be perfected by taking symbolical possession in the specific contexts of those cases (para 14).
In the appeal proceedings Mohammad Rafi (defendant No.3) admitted through his counsel that he had no rights left in the property (para 21), effectively removing one ground for dismissal relied upon by the trial Judge.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Lachmeshwar Prasad Shukul v. Keshwar Lal, 1940 F.C.R. 84	That an appeal is a rehearing and facts or changes occurring after the decision under appeal may be taken into consideration.	Authoritative basis for the proposition that the present appeal must be decided in light of facts arising after the trial judgment (para 11, 20).
K.C. Mukherjee v. Mt. Ram Ratan Kuer, 63 Ind. App. 47 (P.C.) (and Quilter v. Mapleson (1883) 9 Q.B.D. 672)	Principle that a court administers the law as it stands at the date of hearing; cited in support of considering intervening events.	Referred to in the discussion of why appellate courts may consider events occurring during pendency; supports treating the appeal as a rehearing (para 17–18).
Patterson v. State of Alabama (1934) 294 U.S. 600; Lawrence P. Mills v. Green (1895) 159 U.S. 651	U.S. Supreme Court authority that appellate courts may take notice of events happening during pendency of appeal; such events may be proved by extrinsic evidence.	Used by the opinion (through citation in Lachmeshwar) to support taking account of post-judgment events when deciding the appeal (para 19–20).
Saknaram v. Hari, 6 Bom. 113; Sangili v. Mooken, 16 Mad. 350; Rustomji v. Purshotam Das, 25 Bom. 606; Balkishen v. Kishan Lal, 11 All. 148; Chinta Haran v. Radha Charan, 37 Ind. Cas. 962; Ram Ratan Sahu v. Bishun Chand, 11 Cal. W. N. 732; Narayan v. Mt. Tulshi, 80 Ind. Cas. 607; Rai Charan v. Biswa Nath, 20 Cal. L. J. 107; Nuri Mian v. Ambica Singh, 44 Cal. 47; Dera Sadh Bishnois v. Basti Ram, 42 Pun. L. R. 168	Illustrative Indian authorities where courts took cognizance of events occurring during the pendency of suits or appeals.	Collectively cited as supporting examples of the principle that appellate courts may consider events occurring since the decision under appeal; used to justify taking later facts into account (para 20).
Order VII, Rule 7 of the Code of Civil Procedure	Procedural provision referenced in the context of taking notice of events post-filing.	Referenced in support of the general procedural principle that subsequent events may be considered (para 20).
Raj Kishen v. Radha Madhub, 21 W.R. 349 (Cal); Khushal v. Bhimabai, 12 Bom. 589; Shivaram v. Ravji, 7 Bom. 254	Under the prior (1859) Code, purchaser's title became complete on confirmation of sale as against judgment-debtor and his representatives.	Used to show historical practice that title vests on confirmation; supports present interpretation of Section 65 (para 22).
Mulla, Code of Civil Procedure (referenced), p.265	Statement that under present Section 65 an auction-purchaser can maintain suit for possession against a third party after confirmation even though certificate has not been issued, provided produced by decree time.	Adopted to support the conclusion that title vests on confirmation of sale and is not postponed until grant of certificate; assists in overturning the trial Judge on symbolic possession point (para 22).
Ram Chand v. Jana, A.I.R. 1921 Lah. 236	Decision relied upon by the trial Judge (context: co-sharers; Order XXI, Rule 36)	Noted as a case relied on below by the trial Judge, but the appellate court distinguished it on facts and did not accept it as laying down a general rule applicable to the present dispute (para 14).
Ram Chand v. Gopal Singh, A.I.R. 1930 Lah. 914	Single Bench decision suggesting auction-purchaser obtained perfect title from date of obtaining symbolical possession in the specific facts of that case.	Identified by the trial Judge; the appellate court regarded the observations as obiter and fact-specific and therefore not binding for the present matter (para 14).
Full Bench decision of the Lahore High Court (opinion dated 9 October 1945)	Determined the nature of the mortgage(s) (anomalous mortgage) and whether the security extended to the whole house.	Led to a preliminary decree for sale (3 December 1945) in the mortgage suit and was part of the procedural history relied upon in the opinion (para 13).

Court's Reasoning and Analysis

The Court's analysis proceeded in identifiable steps, each grounded in materials contained in the record and authorities cited in the opinion.

Consideration of subsequent events: The Court first addressed whether it could and should take into account events occurring after the trial judgment but before or during the appeal (para 11). It relied on the Federal Court decision in Lachmeshwar Prasad Shukul v. Keshwar Lal (1940 F.C.R. 84) and supporting authorities to conclude that an appeal is a rehearing and that facts and changes occurring after the decision under appeal may be considered when deciding the appeal (paras 11, 17–20). Consequently the appeal must be decided in the light of facts which came into existence after the trial Court's decision (para 20).
Effect of subsequent decree and admissions: Because Abdul Basit was later declared owner of the mortgagee rights and the equity of redemption (by arbitration award and decree dated 18 August 1950) and because Mohammad Rafi (defendant No.3) admitted in the appeal that he had no rights left (para 21), the Court held that one of the principal grounds on which the trial Court dismissed the suit (i.e., non-maintainability without payment of the decretal amount to the mortgagee) had, as a matter of fact, vanished. The Court therefore treated that ground as no longer available to the defendants (para 21).
Title perfection and symbolic possession: The Court next examined the trial Judge's finding that the plaintiff's title was not perfected because he had not taken symbolical possession after sale confirmation. The Court analysed Order XXI (Rules 92, 94 and 95) and Section 65 of the Code of Civil Procedure (paras 13, 22). It explained:
- Under the Order XXI scheme: Rule 92 makes sale absolute if no objections or objections are dismissed; Rule 94 concerns the grant of a sale certificate specifying property sold; Rule 95 allows an auction-purchaser, after sale becomes absolute and certificate granted, to apply for possession (para 22).
- The Court concluded that an auction-purchaser's title becomes perfect not from the date of getting symbolical possession but from the date when the property is sold and confirmed — this vesting is provided for under Section 65 (para 22).
- It cited Mulla's commentary that under Section 65 the purchaser's title vests immediately after sale confirmation and that an auction purchaser can maintain a suit for possession against a third party after confirmation even if the sale certificate is not yet issued, provided the certificate is produced at or before decree (para 22).
The Court therefore found the trial Judge in error on this point (para 14, 22).
Limitation argument and reliance on Ram Chand cases: The appellate reasoning addressed the trial Judge's reliance on two Lahore decisions (Ram Chand v. Jana; Ram Chand v. Gopal Singh) which were cited to support the requirement of symbolical possession. The Court observed that the facts of those cases were materially different (e.g., cases of co-sharers or partition and the taking of symbolical possession in that factual matrix) and that the observations in at least one of them were obiter. The Court therefore disagreed with the trial Judge's conclusion that symbolic possession was required as a general rule in the present circumstances (para 14).
Resulting evaluation: Because (a) subsequent events vested the mortgagee rights in Abdul Basit and Mohammad Rafi conceded he had no rights remaining (para 21), and (b) the trial Judge was incorrect in holding that the purchaser's title depended on obtaining symbolical possession (paras 13–14, 22), the Court concluded the appeal should succeed on the possession claim. The Court limited relief to a decree for possession and ordered that parties bear their own costs (para 25).

Holding and Implications

Holding:

The appellate Court ALLOWED the appeal, set aside the decree of the trial Court, and DECREED the plaintiff's suit for possession (only). The Court ordered that the parties bear their own costs (para 25).

Implications / Consequences (as stated or directly deduced from the opinion):

The appeal court applied the established principle that an appeal is a rehearing and may take into account events occurring after the trial Court's decision (paras 11, 20), which in this instance meant that subsequent adjudications vesting mortgagee rights in the appellant were relevant to the appeal's outcome (para 21).
The Court concluded that an auction-purchaser's title vests on confirmation of sale under Section 65 of the Code of Civil Procedure and need not await symbolical possession or the issuance of a sale certificate to be able to maintain a suit for possession against third parties (paras 13, 22). This was the legal basis on which the trial Court's finding on symbolic possession was overturned (para 14, 22).
The direct practical effect: Abdul Basit obtained a decree for possession; the prior trial dismissal was set aside; and each party was ordered to bear its own costs (para 25).
The opinion did not expressly announce any broader policy changes beyond applying cited authorities and statutory provisions; it corrected the trial Court's legal conclusions as applied to the facts of this case (paras 13–14, 21–25).

Judge Soni delivered the primary opinion (paras cited). Another judge recorded concurrence ("I agree.") (para 16).

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Hafiz Abdul Basit v. Abdul Alim And Ors

1. This is an appeal brought by the plaintiff against a judgment and decree of Mr. A. N. Bhanot, Subordinate Judge, Delhi, dated the 24th February 1947, dismissing his suit for possession and for mesne profits.

2. The facts which have given rise to this appeal are rather complicated but it is only necessary to give some of the relevant facts. The house in dispute which bears No. 2181 was purchased by Abdul Alim defendant No. 1 and his two brothers Abdul Hafiz and Abdul Matin who are not parties to the present proceedings. On the 26th July 1928 Abdul Alim mortgaged his share of the house and some other property to Mohammad Saeed for Rs. 5,000/-. This mortgage was with possession the terms of which are given in a Full Bench decision of the Lahore High Court which is printed at page 51 of the supplementary paper book and they are as follows :

"I have now mortgaged with possession the entire aforesaid property for Rs. 5,000/-. I agree to pay profit at the rate of Re. 1/- per cent, per mensem and the mortgage-money within two years.....Having removed my proprietary possession over the mortgaged property I put the mortgagee in possession thereof by executing a separate lease for Rs. 50/- on account of profit on the mortgage-money. The conditions are:

1. I will pay profit to the mortgagee accord ing to lunar months and secure receipts from him.

2. I will pay the principal mortgage-money in the lump within the period specified above any time I like and redeem the mortgaged property.

3. If I fail to pay the amount of profit monthly and it falls in arrears for three successive months. I will pay it to the mortgagee at the rate of Rs. 1/4/- per cent, per mensem instead of Re. 1/- per cent, per mensem from date of the first default till its entire payment. In case of non-payment of the profit for three successive months the mortgagee shall be entitled either to cancel the period specified in the deed and recover in supersession of the agreement the entire amount of the mortgage-money and profit due to him in the lump in the first place from the aforesaid mortgaged property and in case of deficiency from me and my other movable and immovable property together with costs of the Court or to maintain the period specified in the deed and recover only the entire profit in arrears by that time at the rate of Rs. 1/4/- per cent, per mensem together with costs of the Court from me and my property of every description.

4. * * * * *

5. If on account of default on my part the mortgagee is compelled to bring a suit I will pay him profit at the rate of Rs. 1/4/-per cent, per mensem on the principal mortgage-money after the passing of the decree till payment of the entire amount due.

3. On the 2nd May 1929 another mortgage was created by Abdul Alim on his share of the house alone for a sum of Rs. 4,000/-, the terms of which were similar. There was a partition of family property between the three brothers and in August 1930 the whole of this house fell to the share of Abdul Alim and therefore under the terms of the mortgage it became substituted for the mortgaged property which was mortgaged under the two deeds of mortgage referred to above.

4. Abdul Alim defendant No. 1 was a partner in a business with some other persons and on the 30th January 1937 in a final decree for accounts passed by Mr. Ijaz Ahmad, Senior Subordinate Judge, he was held liable for a sum of Rs. 39,000/-, but appeal being taken to the High Court at Lahore the amount was reduced to Rs. 6,000/- and costs. Execution was taken out and the right, title and interest of Abdul Alim was purchased by Abdul Basit, the plaintiff, on the 8th July 1939. The sale was confirmed on the 16th August 1939 and a sale certificate was issued but it bears the date 2nd November 1939. Thus under Section 65 of the Code of Civil Procedure the plaintiff got vested in him the right, title and interest of Abdul Alim defendant No. 1.

5. Three sets of suits were brought by Man-zooma Khatoon, the wife of Alim, in regard to her right of dower but we are not concerned with those litigations. I may only mention that they all ended against the claim made by Man-zooma Khatoon.

6. Under Order XXI, Rule 95 Abdul Basit on the 26th June 1943 applied for possession of the house. This was dismissed by the executing Court as barred by time and an appeal taken to the District Judge and a second appeal to the Lahore High Court ended against Abdul Basit.

7. On the 1st August 1940 Mohammad Saeed brought a suit to enforce the mortgage. The defendants in that suit were Abdul Alim and Abdul Basit. While this suit was pending Mohammad Rafi purchased the mortgagee rights of Mohammad Saeed for a sum of Rs. 10,000/-and he was substituted in his place. This suit was dismissed on the 1st June 1943. On an appeal being taken to the High Court it was held that the mortgages were valid, that the security under the mortgages was of the whole house and that the house could be sold in execution as the mortgage was an anomalous mortgage. I may state that this last question as to what was the nature of the mortgage had to be referred to a Full Bench* which gave its opinion on the 9th October 1945 and a preliminary decree for sale was passed on the 3rd December 1945 for Rs. 13,256/4/- with interest at 12 per cent, and the payment was to be made by the 3-6-1946. An appeal was sought to be taken to the Privy Council but it did not materialize as the printing fees were not paid although leave had been granted and these proceedings finally came to an end on the 27th December 1948.

8. The suit out of which this appeal has arisen was brought by Abdul Basit on the 28th June 1944. In this suit he claimed possession of the house in dispute and a decree for mesne profits of Rs. 3,240/-. After two amendments the finally amended plaint was filed in Court on the 26th February 1946 and is printed at page 30 of the printed paper book. Several pleas were taken by the defendants who were Abdul Alim defendant No. 1, his wife Man-zooma Khatoon defendant No. 2 and Mohammad Rafi the mortgagee defendant No. 3. It is not necessary to refer to these various pleas and I need only give the decision of the trial Court by which the suit was dismissed. The learned Judge decided two issues against the plaintiff. The first one was that the suit was not maintainable by the plaintiff without his paying into Court the amount of the mortgage decree which had been passed in favour of Mohammad Rafi and the second point decided against the plaintiff was that he could not obtain possession as his title had not been perfected because of the fact that he did not take symbolical possession after the sale had been confirmed in his favour. The plaintiff has come up in appeal to this Court.

9. Mohammad Rafi defendant No. 3 took out execution in his mortgage decree and purchased in execution the house in dispute on the 22nd May 1950 which is shown by a sale certificate which has been placed on the record of this appeal.

10. After the dismissal of the suit while the appeal was pending in this Court Abdul Basit brought a suit on the 2nd June 1950 for a declaration that he was the real owner of the mortgagee rights and that Mohammad Ran who was his brother-in-law was merely a 'benami-dar.' The matter was referred to an arbitrator who gave an award on the 9th July 1950 holding that the real owner of the mortgagee rights was the plaintiff Abdul Basit and Mohammad Raft was only a 'benamidar.' On the 18th August 1950 a judgment and decree followed on this award, and as a result of this Abdul Basit, the present plaintiff appellant has become the owner of the mortgagee rights and he was already the owner of the equity of redemption.

11. The first question to be decided is whe ther for the decision of the appeal we should take into consideration subsequent facts which have come into existence after the decision of the suit and before the appeal or we are con fined to the facts as they were presented to the trial Court. It has been held by the Fede ral Court in -- 'Lachmeshwar Prasad Shukul v, Keshwar Lal', 1940 F.C.R. 84, that the appeal is a rehearing and the facts and changes in the law which have come into existence since the appeal was filed should be taken into considera tion for the purpose of deciding the appeal. In

-- 'K.C. Mukherjee v. Mt. Ram Ratan Kuer', 63 Ind. App. 47 (P.C.), the report of the argu ments shows that -- 'Quilter v. Mapleson', (1883) 9 Q.B.D. 672, was referred to, and Lord Thankerton observed that the duty of a Court is to administer the law of the land at the date when the Court is administering it. The learned Chief Justice at page 87 of the report '1940 F.C.R. 84' stated as follows:

".....but, with regard to the question whe ther the Court is entitled to take into account legislative changes since the decision under appeal was given, I desire to point out that the rule adopted by the Supreme Court of the United States is the same as that which I think commends itself to all three members of this Court. In -- 'Patterson v. State of Alabama', (1934) 294 U.S. 600, at p. 607, Hughes C. J. said:

In -- 'Lawrence P. Mills v. Green', (1895) 159 U.S. 651, Gray J., in delivering the opinion of the nine Judges of the Supreme Court of the United States, affirmed the doctrine that it is not only in the power, but it may sometimes be the duty of a Court of Appeal to take notice of events which have happened during the pendency of the appeal and that such events when not appearing on the record may be proved by extrinsic evidence. As illustrations of cases in India in which the Court has taken cognizance of events since the filing of a suit or appeal, reference may be made to -- 'Saknaram v. Hari', 6 Bom. 113 and -- 'Sangili v. Mooken', 16 Mad. 350, where upon the death of a party to a suit for partition during the pendency of an appeal, the Court was obliged to alter the shares and allotments. In -- 'Rustomji v. Pur-shotam Das', 25 Bom. 606, the Court varied the decree of the first Court by reason of events which had happened during the pendency of the appeal. So also in -- 'Balkishen v. Kishan Lal', 11 All. 148. This principle has been applied in -- 'Chinta Haran v. Radha Charan', 37 Ind. Cas. 962, -- 'Ram Ratan Sahu v. Bishun Chand', 11 Cal. W. N. 732 and -- 'Narayan v. Mt. Tulshi', 80 Ind. Cas. 607. The same was held in -- 'Rai Charan v. Biswa Nath', 20 Cal. L. J. 107, -- 'Nuri Mian v. Ambica Singh', 44 Cal. 47, and -- 'Dera Sadh Bishnois v. Basti Ram', 42 Pun. L. R. 168. See also Order VII, Rule 7 of the Code of Civil Procedure. Therefore this appeal will have to be decided in the light of facts which came into existence later, that is, after the suit was decided by Mr. Bha-not.

12. The learned Judge held" that the suit was not maintainable and a conditional decree in favour of the plaintiff on his paying decretal amount in Court could also not be passed loses all force because of the subsequent decree which has come into existence. Abdul Basit has been declared to be the owner of the mortgagee rights as well as of the equity of redemption. Mohammad Rafi is a party to the appeal and his counsel has admitted that he has no rights left in the property and therefore one of the grounds on which the suit was dismissed by the learned trial Judge vanishes and even if on the facts as they were before the trial Court, the judgment is correct, on which I give no opinion, the plea 011 which that point was decided is no longer available to the defendants.

13. The next point on which the judgment went against the plaintiff was that his title was not perfected until he obtained symbolical possession of the property. In my opinion the learned Judge was in error in this point. The scheme of Order XXI of the Civil Procedure Code shows that under Rule 92 the sale becomes absolute if no objections are filed or if the objections are dismissed. Rule 94 provides for the grant of a certificate specifying the property sold to the auction-purchaser and it has to bear the date when the sale became absolute. Under Rule 95 an auction-purchaser after the sale has become absolute and sale certificate granted can apply tor possession of the property purchased, and there are other provisions in later rules which deal with the question as to what is to happen if any obstruction is placed or caused in his getting possession. It is true that the auction-purchaser in this case, Abdul Basit, did not get symbolical or actual possession, but the title of an auction-purchaser becomes perfect not from the date of his getting symbolical possession but from the date when the property is sold. This is provided for under Section 65 of the Code of Civil Procedure. Under the Code of 1859 a purchaser of immovable property at a Court-sale could not maintain a suit for possession against a third person unless he obtained a certificate of sale, but even under that Code as against the judgment-debtor and his representatives the purchaser's title became complete on the confirmation of the sale, see -- 'Raj Kishen v. Radha Madhub', 21 W.R. 349 (Cal), -- 'Khushal v. Bhimabai', 12 Bom. 589, and -- 'Shivaram v. Ravji', 7 Bom. 254. Under the present section, however, as has been stated by Mulla at page 265 of his Code of Civil Procedure, an auction-purchaser can maintain a suit for possession against a third party after the sale is confirmed even though no certificate has been issued, provided it is produced at or before the passing of the decree. The reason is that the property under the present section vests in the purchaser immediately after the sale is confirmed by the Court and vesting is not postponed until after the grant of the certificate.

14. Another argument which has been put forward by appellant's advocate is that under Article 138 of the Limitation Act the time begins to run against an auction-purchaser, when the suit is brought against a judgment-debtor in possession, from the date when the sale becomes absolute and when symbolical possession has been obtained the Article appli-cale is Article 144 of the Limitation Act. Two rulings have been relied upon by the learned trial Judge. The first is -- 'Ram Chand v. Jana', A.I.R. 1921 Lah. 236 (2). That was a case of co-sharers and the matter was under Order XXI, Rule 36 of the Civil Procedure-Code, and the second one is also a Single Bench case -- 'Ram Chand v. Gopal Singh', A.I.R. 1930 Lah. 914, where no doubt it was said that an auction-purchaser purchasing judgment-debtor's share in joint property obtained a perfect title from the date of obtaining sym-

bolical possession followng such sale. But the suit was for possession by partition by the purchaser of a share of the house and the question was whether the time begins to run from the date of the confirmation of sale or of the date of taking symbolical possession which was in fact taken. The facts were quite different and the observations of the learned Judge were obiter. With great respect I am unable to agree that these observations lay down the rule correctly for reasons which I have already stated. I am therefore of the opinion that the finding of the learned Judge on this point is erroneous.

15. For reasons that I have stated above I would allow this appeal, set aside the decree of the trial Court and decree the plaintiff's suit for possession only, but in the circumstances of this case the parties will bear their own costs throughout.

Soni, J.

16. I agree.

Hafiz Abdul Basit v. Abdul Alim And Ors

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant (Abdul Basit) — principal arguments presented in the opinion

Respondents / Trial Court position (as reported in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Hafiz Abdul Basit v. Abdul Alim And Ors

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