VARGHESE JOSEPH Vs. MATHEW THOMAS

JUDGEMENT

(1.) This motion is by the petitioners (who will hereafter be referred to as the plaintiffs), whose application for permission to sue as paupers has been rejected by the Court below.

(2.) The facts are thus: The predecessor-in-interest of the 1st defendant had, in execution of the hypothecation decree in O. S. No. 173 of 1108 on the file of the Munsiff, Changanacherry, obtained by him against Kunnappally tarwad, purchased the plaint schedule properties on 17 10 1113 and taken delivery of them on 16 12 1116. Though the plaintiffs' father, who was no party to those proceedings, obstructed the delivery, he was overruled and delivery was effected on 16 12 1116. The dispute as to possession survived the delivery proceedings and ultimately culminated in M. C. No. 13 of 1119 (1943) before the Sub-Divisional Magistrate, Kottayam, under S.128 of the Travancore Criminal Procedure Code, which corresponded with S.145 of the Indian Code. The Magistrate, by his order dated 28 10 1946 expressed inability to decide as to the party in possession and therefore ordered continuance of attachment of the properties and the receiving order "until a competent Court has determined the rights of the parties thereto or the person entitled to possession thereof." On the eve of expiry of three years after the Magistrate's order, the 1st defendant instituted O. S. No. 65 of 1125 on the file of the District Court, Kottayam, against the plaintiffs' predecessor for declaration of title and recovery of possession from the receiver. That suit was tried by the Subordinate Judge, Kottayam, who found title and possession of the properties with the 1st defendant. The plaintiffs took the matter in appeal before this Court (in A. S. No. 218 of 1959) which, by the judgment, Ext. D2, dated 23 10 1963, left the question of title open between parties, and found the delivery of 1116 aforesaid to be real. A fresh suit to determine the rights of the parties thus became inevitable; for a mere delivery by Court, as has been observed by the Privy Council in Karan Singh v. Raja Bakar Ali Khan 9 I. A. 99 will not give a title, and, as observed by me in CRP. No. 351 of 1967 since reported in 1967 KLT 667 , will not affect the title of the true owner who was no party thereto. On 5-2-1964, the plaintiffs presented this application for permission to sue as paupers for declaration of their title to the property and for recovery thereof from the receiver. The Principal Subordinate Judge, Kottayam, held:

(3.) Encouraged apparently by the above quoted observation of the District Judge, counsel for the respondents defendants contends that the suit is barred under Art.142 of the Limitation Act, in as much as the plaintiffs' dispossession was on 16-12-1116/31-7-1941 and their present application is dated 5 2 1964. This contention, I am afraid, ignores the fact that the properties had been in possession of a receiver appointed by the Sub Divisional Magistrate, Kottayam, since 1943 till after the institution of the present pauper petition. If the receiver's possession was possession of the rightful owner and if ultimately in this suit the plaintiffs are found to have title to the properties, it cannot then be said that the plaintiffs were out of legal possession since 1943, or that the defendants were in possession beyond 1943.