The plaintiff resisted the execution of a decree for possession of the suit lands, and, having had an order made against him, under O. 21, R. 98, instituted the present suit under R. 103 “to establish the right which he claims to the present possession of the property,” failing which the right would have been lost under the terms of the rule. The plaintiff who based his case both on possession and on title, alleged that the conveyance, executed by him in 1899, in favour of the 1st defendant never took eftect, and that, if it did, he had acquired a title by adverse possession before the date of the order against him under R. 98. The District Munsif dismissed the suit on the ground that the title passed to the 1st defendant by the conveyance of 1899. The Subordinate Judge allowed the appeal and decreed the suit, holding that the plaintiff, having, as he found, been in possession at the date of the order under R. 98, could not be ousted in execution of a decree to which he was not a party, and that under the Rule the Court was concerned with possession only.
The view that in a suit of this kind the Court has merely to ascertain whether the plaintiff was in possession at the date of the order against him under R. 98 is based on a misconception of the scope of this rule. If he was, then the Court ought not to have passed the summary order against him under R. 98 but ought to have dismissed the decree-holder's application against him under R. 99. The effect of the order having been made under R. 98 was to oblige him to sue under R. 103 on pain of losing his right; whereas if the application had been dismissed under R. 98, the decree-holder would have had to institute the suit under the like penalty. The suit referred to in the rule, by whichever party instituted, is a suit to establish the right which he claims to the present possession of the property. In a suit by the decree-holder, if it were shown that the defendant was in possession at the date of the order under R. 99, the decree-holder could only succeed by proving his title, because a person in the actual possession has a possessory title against the world and can only be dispossessed by the true owner, and those claiming under him. So too in the present suit, if it be found that the plaintiff was in possession at the date of the summary order against him under R. 98, he is entitled to succeed by virtue of that possession, unless the defendant (decree-holder) proves a subsisting title, carrying with it the right to present possession.
The object of these provisions is to secure the speedy settlement of questions of title raised in execution, as explained by the Privy Council in Sardhari Lal v. Ambika Pershad(1) with reference to the similar procedure prescribed with regard to claim petitions; and this is effected byrequiring the unsuccessful party in the summary proceedings to file a suit within the year to establish his right on pain of losing it.
In support of the Subordinate Judge's view reliance has been placed on the tact that the suit referred to in R. 103 is a suit to establish the right which he claims to the present possession of the property; whereas the suit referred to in R. 63 is a suit to establish the right which he claims to the property in dispute. This does not show that a suit under R. 103 is concerned only with the question of actual possession at the date of the summary order. The suit is to establish the right which the plaintiff claims to the present possession of the property, and this right may be established, without showing that the plaintiff was in actual possession at the date of the summary order against him. Decree-holders and auction purchaser against whom an order has been made under R. 99 are never in possession at the date of the summary order and yet they are allowed and even required to maintain the suit, and the scope of the suit, must be the same, whether the order against the unsuccessful party in the summary proceedings was made under Rr. 98, 99 or 101. Nabadwirpendra Mookerjee v. Madhu Sudan Mandal the only authority we have been referred to, is in accordance with this view. The Subordinate Judge has not recorded any clear finding as to whether the plaintiff has established the right which he claims to the present possession, and the decree must be reversed and the appeal remanded to the District Judge to enable him to do so in the light of the above observations. Costs to abide.
C.KAppeal allowed:case remanded.