LAXMAN DASH Vs. MADAN MOHAN ROUT AND ORS.

JUDGEMENT

(1.) THE Plaintiff -Petitioner is the decree. holder. In execution of a decree dated 24th April, 1961, be purchased one fourth share of opposite party No. 1 's interest in the coparcenary property of which opposite parties 2 to 7 are the co -sharers on 3 -4 -1964. The Petitioner put the decree into execution and got symbolical delivery of possession. But the execution became infructuous. Ultimately, in 1966, he filed T.S. No. 17 of 1966 for partition of his one -fourth share. This suit was decreed by the learned Munsif on 6 -5 -1969.

(2.) THE sole question for consideration is whether the auction -purchaser of an undivided interest in a coparcenary property is bound to execute the decree to obtain symbolical delivery of possession, and whether in absence of taking such possession, the suit for partition is not maintainable.

(3.) MR . Patra vehemently contended that a different view has been taken In the latter case. The confusion In such an argument arises on account of the fact that it ignores the facts of each particular case. Manikayala Rao v. Narasimha Swamy, A.I.R 1966 S.C. 470 related to a case where the question of adverse possession was examined. In that case after purchasing the undivided share of a coparcenary property the decree -bolder took symbolical delivery of possession. The question for consideration was whether taking of such symbolical delivery of possession interrupted the running of adverse possession. In that connection was contended that the taking of symbolical delivery of possession was a nullity and as such, should be ignored, and therefore, It cannot constitute an interruption In the running of adverse possession. This contention was negatived by their Lordships by an analysis that though the auction purchaser was not required In law to take delivery of symbolical possession, he, in fact, took such delivery under orders of the Court, and the order of the Court was not a nullity, as it was not without jurisdiction, but was passed in exercise of jurisdiction illegally. Their Lordships, therefore, recognized the fundamental proposition of law that the auction -purchaser of an undivided interest in a coparcenary property is only to file a suit for partition and carve our his specific interest through that process and is not called upon in law to take delivery of symbolical possession. Thus Manikayala Rao v. Narasimha Swamy : A.I.R 1966 S.C. 470 is in line with Sidheswar Mukherjee v. Bhubaneswar Prasad Narain Singh and Ors. : A.I.R. 1953 S.C. 487.