NARAIN RAM AGARHARI Vs. CHANDI PRASAD DUBEY

JUDGEMENT

(1.) This second appeal by the defendant arises out of a suit for possession over certain shares in Zamindari property in two villages specified in Schedule A at the foot of the plaint. The appeal has been referred to a Bench because it involved an important question of law. The property admittedly belonged to one Kandhai as against whom there stood a money decree of Suraj Prasad, the father of plaintiff No. 1 and the grand-father of plaintiff No. 2. Suraj Prasad put that decree into execution and he got the property attached on 29-3-1928. During the subsistence of that attachment Kandhai transferred the property to Narain Ram Agarhari, the defendant, by a sale-deed dated 15-11-1928 and put him in possession over the property. The defendant has since then been admittedly in possession thereof. That private transfer or delivery of property contrary to the attachment was, in view of Section 64 of the Code of Civil Procedure, void as against all claims enforceable under the attachment. In the execution proceedings the property was put to auction sale on 22-12-1928 and was purchased by Suraj Prasad himself. The sate was confirmed by the court on 12-2-1929 and Suraj Prasad obtained formal or symbolical possession of the property through the court Amin on 23-4-1932. Suraj Prasad, however, never got into actual possession of the property; and neither he nor the plaintiffs enjoyed any part of the usufruct of the property since the date of the auction sale or the taking of the formal possession. The defendant on foot of his sale deed dated 15-11-1928 obtained mutation of names in his own favour in the record of rights and ever since the date of his purchase he has been in actual physical possession of the property and in enjoyment of the usufruct thereof. Suraj Prasad did not apply for mutation of names in his favour. After his death the present plaintiffs made an application for mutation in their own favour on 6-1-1942. That application was refused by the mutation court. From the order of refusal an appeal was taken before the Collector of Basti who by a decision dated 19-3-1943, agreed with the Court of the first instance and refused mutation in plaintiff's favour upon the principle that the matter should have been agitated in the mutation court when mutation was ordered in favour of the defendant in the year 1929. The present suit was filed in the court of the Munsif of Basti on 27-4-1944. The trial court following the principle laid down in Ataullah Khan v. Mt. Hansraj Kunwar, AIR 1928 Oudh 391 (A), which followed a Division Bench of this Court in Narain Das v. Lalta Prasad, ILR 21 All 269 (B), and a decision of the Judicial Commissioner of Oudh in Chunni v. Mt. Ashrafan, 4 Oudh LJ 481: (AIR 1917 Oudh 135 (1)) (C), came to the conclusion that the suit was time-barred. The trial court accordingly dismissed the suit and directed the parties to bear their own costs. In the lower appellate Court the plaintiffs succeeded in the reversal of the decision of the trial court. The lower appellate court has been of the view that formal delivery of possession obtained on the 23rd April 1932 by the plaintiffs' father and grandfather saved limitation and the suit having been filed on the 22-4-1944 was within time.

(2.) In our opinion the view of the lower appellate court appears to be incorrect. We have heard learned counsel for the parties at some length and we have come to the conclusion that the decision of this Court in Narain Das v. Lalta Prasad (B), and the decision of the Judicial Commissioner of Oudh in Chunni v. Mt. Ashrafan (C), and the decision of the Oudh Chief Court in Ataullah Khan v. Mt. Hansraj Kunwar (A), were correctly made & they laid down a sound principle of law. It has been held in those cases that whatever might be the effect of the formal delivery of possession under the Code of Civil Procedure as against the judgment-debtor himself, it cannot take effect as actual possession as against a purchaser of the rights of the judgment-debtor who has previously obtained actual possession. The Allahabad decision dealt with a case where the purchaser had purchased the property at an auction-sale held in execution of a decree against the judgment-debtor and had also taken possession under that sale prior to the formal delivery of possession in favour of the plaintiff. The Oudh decision, however, related to a case where the judgment-debtor had, prior to the delivery of possession, parted with possession of the property by transferring it by a private sale to a third person who had on the date of the suit been in actual possession for more than 12 years and who was no party to the execution proceedings. It, therefore, appears to us that the rule of law which has been enunciated above would apply to both such cases.

(3.) In Narain Das v. Lalta Prasad (B), reliance was placed on the doctrine of 'lis pendens' and it was observed that there could be no doubt that the title of the plaintiffs is superior to that of the defendant, but the question was whether the plaintiffs came into Court in time to assert and enforce that title and that, in the view which had been taken of the case, their claim was beyond time and was rightly dismissed by the Court of first instance, and further that the plaintiffs were themselves to blame for having lost through their own laches the title which they had acquired under their auction purchase.