PUTTAMMA SHEDTHI Vs. Y. SHEENA SHETTY AND ORS.

JUDGEMENT

(1.) THE 9th defendant who is the legal representative of the 1st defendant is the appellant. The suit out of which this appeal arises was instituted by the two plaintiffs for a declaration that they are respectively entitled to A and B schedule properties and for a decree in their favour as against the 1st defendant the predecessor -in -interest of the present 9th defendant and for possession of these properties. In execution of the decree, the properties belonging to the 1st defendant were brought to sale on 22 -6 -1925 and were purchased by the 1st plaintiff who is no other than the nephew of the 1st defendant at Court auction for Rs. 1634 -1 -0. The sale was confirmed on 24 -7 -1925 and the sale certificate was granted to the auction purchaser on 12 -9 -1927. Subsequent to this purchase the 1st plaintiff sold a few items of the property purchased by him to the 2nd plaintiff described in schedule B on 16 -1 -1939. According to the plaintiffs the symbolic delivery of the property was taken by the first plaintiff as evidenced by Ex. P. 1 dated 7 -7 -1928.

(2.) THE defence to the suit was that though the properties were purchased in the name of the 1st plaintiff consideration for the sale proceeded from the 1st defendant and the plaintiff was only a benamidar for the first defendant and that in any event the suit was barred by limitation as the 1st defendant was in possession of this property adversely to the plaintiff. It was pleaded on behalf of the defendants that the symbolical delivery said to have been effected on 7 -7 -1928, did not really interrupt the adverse possession as the provisions of Order 21, Rule 96, C.P.C. were not complied with.

(3.) IT is this decision that is under appeal now. On the findings of the Court below the only question that arises for consideration is whether symbolical delivery evidenced by Ex. P. 1 is effective so as to save the suit from the bar of limitation. Ex. P. 1 says that the delivery order was proclaimed by tom tom & that a copy of the sale proclamation (sic. certificate?) was affixed to the door of the house situated in the suit property and that the possession of the suit property was delivered to the auction purchaser, that is, the 1st plaintiff herein. What is contended by Mr. Kuttikrishna Menon the learned counsel for the appellants is that all that Ex. P. 1 shows is that a copy of the sale proclamation (sic. certificate?) was affixed to the door of the house situated in one of the plots and that is not sufficient to make the symbolical delivery effective in respect of the other items of property. According to him the suit properties covered by different survey numbers, symbolical delivery of which is said to have been given under Ex. P. 1 are not so situated as to make the affixture in a conspicuous place of one plot sufficient to bring it within the purview of Order 21, Rule 96, C. P. C. His argument is that the survey numbers in which these properties are included as set out in Ex. P. 1 disclosed that the several items of property affected by Ex. P. 1 are not contiguous but lie in different parts of the village and therefore there was no proper affixture within the meaning of Order 21, Rule 90, C. P. C. in respect of such of the plots as are not adjoining the house on the outer door of which a copy of the sale proclamation was affixed.