Narayan, J.:— This is a second appeal by the defendants and it arises out of a suit for partition in which there was also an alternative prayer for recovery of possession in case the plaintiff was found to be out of possession. The plaintiff's case was that he had purchased three-fourths share in 4 bighas, 15 kathas and 15 dhurs of kaimi kast land in execution of a decree and that joint possession had been delivered to him on 23rd August, 1931. The whole of the remaining one-fourth share in the land was held by one Musammat Bahorna Kuer, a lady of the defendants' family, who is now dead leaving these defendants, as her heirs.
There were two sets of defendants in the suit, the first set being the heirs and descendants of Geyan Pathak against whom the plaintiff had obtained his decree, and the second set being the zarpeshgidars of a portion of the land sold. The claim was resisted by some of the defendants first party and they pleaded that the plaintiff had acquired no valid title by virtue of his alleged auction-purchase as the entire proceeding from the commencement of the suit till up to the auction sale was fraudulent. They also contended that the plaintiff had never obtained joint possession and that his claim was barred by limitation.
Both the courts concurrently found that the plaintiff had acquired valid title to three-fourth share in the property by virtue of the purchase at the auction, sale and that the proceedings were not vitiated by fraud. They overruled the plea of limitation and passed a decree for recovery of possession and partition.
The defendants have preferred this second appeal, and the only point urged in this appeal is that the courts below should have held that the suit was barred by limitation.
The suit as originally instituted was a simple suit for partition, but when the hearing of the suit was about to commence, the plaintiff filed a petition for the amendment of the plaint. The amendment was allowed, and the alternative prayer for recovery of possession was added. This amendment was sought and allowed more than twelve years after the date of delivery of possession, and it is contended that if in the circumstances of this case it was necessary for the plaintiff to seek such an amendment, then no decree for recovery of possession could be granted to the plaintiff as the claim for recovery of possession had not been made within twelve years from the date of delivery of possession. The date of the plaintiff's purchase is 17th March, 1930 and the date of delivery of possession is 23rd August, 1930. The present suit was instituted on 11th August, 1942. The courts below have held that the plaintiff had never got actual possession, but they were of the opinion that as the period of limitation would be reckoned from the date of delivery of possession, the present suit will be deemed to be within time. We are bound by the finding of the court below that the plaintiff had never got actual possession, and taking this finding to be correct, we have to decide whether the plaintiff's claim for recovery of possession and partition can be deemed to be in time. The delivery of possession which is said to have been effected on 23rd August, 1930 must be taken to be a mere symbolical delivery of possession, and the question, therefore, arises whether, where the judgment-debtor is in actual possession of the property and only symbolical possession is delivered to the execution purchaser, such delivery of possession would be available, to the execution purchaser for saving the period of limitation. There was once a conflict of opinion on this point and while the Full Bench of the Calcutta High Court in the case of Jagabandhu Mukherji v. Ramchandra Baisack held that symbolical possession as against the defendant to the suit or the judgment-debtor would be deemed equivalent to actual possession, the Full Bench of the Allahabad High Court in Jang Bahadur v. Hanumant and the Full Bench of the Bombay High Court in Mahadev Sakharam v. Janu Namji held that the mere delivery of formal or symbolical possession of immoveable property to a decree-holder in execution of a decree cannot prevent limitation running in favour of the judgment-debtor where the latter remains in actual possession and the property is not in the occupation of a tenant or other person entitled to occupy the same. But, in my opinion, after the decision of the Judicial Committee of the Privy Council in the case of Sri Sri Radha Krishna Chandraji v. Ram Bahadur there is no room for divergence of views on this point. The Calcutta case and the Privy Council case may be cases where the only delivery to which the decree-holders were entitled was symbolical, but their Lordships of the Judicial Committee laid down a rule of general application to the effect that “symbolical possession availed to dispossess the defendants sufficiently because they were parties to the proceedings in which it was ordered and given” and they expressed their agreement with the view that had been taken in the Calcutta case. Their Lordships expressly dissented from the view taken by the Bombay and the Allahabad High Court that where the judgment-debtor is in actual possession, limitation cannot run anew unless actual possession is delivered to the execution purchaser or the decree-holder as provided for by Order XXI, rule 35 or Order XXI, rule 95 of the Code of Civil Procedure. In another Calcutta case Jankinath Saha v. Baikuntha Nath Ghatak it was held that where in a mortgage suit immoveable property was sold in execution of the decree and the auction-purchaser was given not actual but symbolical possession and his suit for recovery of possession was brought within twelve years from the date on which he had obtained symbolical possession, his suit would be deemed to be within time. It seems that even the Allahabad High Court does not now adhere to the view which was put forward in the Full Bench case referred to above. The Allahabad case of Sitaram Dubey v. Sundar Prasad is a case in which the auction-purchaser of an undivided share in a joint property had obtained symbolical possession. Their Lordships held that if the judgment-debtor had continued in possession along with the other co-owners, limitation in respect of a suit to obtain actual possession by means of physical partition of the share purchased would run against the purchaser from the date of the delivery of formal possession. In another case of the same Court—Ramlallan Singh v. Haraknarain Ram it was held that the delivery of formal possession to the predecessor-in-title of the plaintiffs gave them a fresh starting point of limitation.
The Madras High Court took the same view in the case of Dharmala Kamayya v. Mahalakshmi.
The Full Bench of the Lucknow Chief Court in the case of Gulab Khan v. Ataudla held that in a case where the auction-purchaser has purchased a share in a property sold and has thereby become a: co-sharer with others, the only way of his getting a valid and effective delivery of possession is by getting delivery under Order XXI, rule 95 of the Code of Civil Procedure, and that such a delivery of possession to the decree-holder amounts to a dispossession of the judgment-debtor, and that if the auction-purchaser sues for recovery of actual possession, the date from which the time would begin to run would be the date on which he obtained delivery of possession under Order XXI, rule 95 of the Code of Civil Procedure.
This Court in Ram Prasad Ojha v. Bakshi Bindeshwari Prasad Sinha* had to deal with a case where the plaintiffs had brought a suit to recover possession of immoveable property basing their title on an auction purchase in execution of a mortgage decree and it had been alleged that they had failed to get possession from the defendants. The view taken was that Article 144 of the Limitation Act was applicable and that the possession of the defendants became adverse to the plaintiffs not from the date of the sale but from the date of the delivery of possession.
The true rule, therefore, deducible from the authorities is that where in execution of a decree, symbolical possession is delivered of immoveable property to the person entitled to possession thereof, and such a person brings a suit for recovery of actual possession, the symbolical possession will be deemed equivalent to actual possession as against the judgment-debtor or his representatives and the suit will be deemed to have been brought in time if it has been brought within twelve years from the date of the symbolical possession. In other words, it is now well established that the delivery of symbolical possession is the line of demarcation between possession precedent and possession subsequent.
This appeal is, therefore, without any merit and is dismissed with costs.
Agarwala, C.J:— I agree.
K.D
Appeal dismissed.