NAGOOR ROWTHER Vs. ABDUL RAHIM

JUDGEMENT

(1.) THE plaintiff is the appellant. He filed the suit for a declaration of his title, possession and injunction and for mesne profits. The suit was in respect of ten items and there were four defendants. The plaintiff obtained a decree in respect of items 1 to 6 and 9 and 10 as against defendants 1, 3 and 4 and that is not the subject-matter of appeal here. The second defendant is in possession of Items 7 and 8 and this second appeal relates only to these two items.

(2.) THE facts leading up to this second appeal are these: The plaintiff as assignee-decree-holder of a decree in O. S. 550 of 1930 took proceedings to execute that decree and in execution thereof purchased these two items along with others in court-auction on 24-10-1935. He alleged that he took delivery of possession in pursuance of his purchase on 2-12-1938. The plaintiff's further case was that the second defendant trespassed on these Items 7 and 8. Thereafter the plaintiff filed o. S. 453 of 1950 against the second defendant and a number of others for possession of these items. In this suit the second defendant remained ex parte and the suit was decreed on 22-1-1952 as seen from the copy of the judgment Ex. A-1 filed in this case. Thereafter the plaintiff filed E. P. 96 of 1964. It is stated that the plaintiff obtained delivery of possession on 4-5-1964; and he had filed the certified copy of the delivery warrant Ex. A-2 in this case. On the ground that the second defendant has again trespassed on the suit properties, he has filed the present suit. In the written statement filed by the second defendant, it was contended that the second defendant was not aware of the suit at all and that the decree in O. S. 453 of 1950 was obtained fraudulently. He also contended that the delivery said to have been effected on 4-5-1964 was false, fraudulent and legally void. There was no actual delivery of the said properties to the plaintiff. The plaintiff was not also entitled to get delivery of the properties more than 12 years after the decree. Delivery said to have been effected was in contravention of the provisions of the Limitation Act and therefore void and legally ineffective.

(3.) THE trial Court decreed the suit holding that the plaintiff had actually taken possession in execution of the decree on 4-5-1964 and that in view of this finding the trespass alleged was true and that the second defendant had not perfected his title by adverse possession. On appeal by the second defendant, the learned subordinate Judge, Pudukottai, allowed the appeal and dismissed the suit. He was of the view that there was no actual delivery of the properties and that the second defendant had remained in possession in his own right for more than the statutory period and prescribed his title. The plaintiff has filed this second appeal.