Mahadevappa Dundappa Hampiholi v. Bhima Doddapa Maled Kutarnahatti

Macleod, C.J:— The plaintiff filed this suit for possession and mesne profits. The trial Court dismissed the suit and an appeal from that decree was dismissed with costs. The question is whether the defendants could succeed against the plaintiff who had obtained a decree for possession on the 28th February 1914. It was alleged that in execution of that decree the plaintiff was put in possession on the 5th February 1915. The learned Judge says “the main question, as was frankly stated by the learned pleader, is whether the possession delivered on the 5th February 1915 was symbolical possession or real possession,” and the learned Judge came to the conclusion that the possession was only symbolical.

In Mahadev Sakharam v. Janu Namji Hatle it was, decided by a Full Bench that merely formal possession of immoveable property by a purchaser at a Court sale cannot prevent limitation running in favour of the judgment-debtor where the latter remains in actual possession, and the property is not in the occupancy of a tenant or other persons entitled to occupy the same. Symbolical possession is not real possession nor is it equivalent to real possession under the Civil Procedure Code except where the Code expressly or by implication provides that it shall have that effect.

But in Radha Krishna v. Ram Bahadur it was decided by the Privy Council that symbolical possession is sufficient to interrupt adverse possession where the person setting up adverse possession was a party to the execution proceedings in which the symbolical possession was given. Their Lordships approved of the decision in Juggobundhu Mukerjee v. Ram Chunder Bysack This decision of the Privy Council appears to throw considerable doubt on the decision of this Court in Mahadev Sakharam v. Janu Namji Hatle which may, when the occasion arises, have to be reconsidered.

In my opinion in this case it cannot be said that the question of adverse possession arises in face of the plaintiff's decree of February 1914. That would put a stop to any adverse possession prior to the date of the decree, and even if that were not so, considering that the defendants were parties to the execution proceedings, the decision in Radha Krishna v. Ram Bahadur would be applicable. The plaintiff, therefore, would be entitled to succeed, and the appeal must be allowed and a decree passed for possession with costs throughout. There will have to be an inquiry with regard to mesne profits for the past three years before suit and also with regard to future mesne profits.

Shah, J.:— I agree.

Decree reversed.

J.G.R