LAL SINGH Vs. SUNDAR SINGH

JUDGEMENT

(1.) This is an appeal against an appellate decree of the Senior Subordinate Judge, dated 11-8-1948 confirming the decree of the trial Court dismissing the plaintiffs' suit. Bhagwan Singh on 30-11-1943 mortgaged the land in dispute. The mortgagee brought a suit for possession making Sundar Singh, a brother of Bhagwan Singh, a party to the suit and in execution of his decree for possession obtained symbolical possession through Court. Subsequently, it is alleged that Sundar Singh took forcible possession and on the 2-12-1946 the mortgagee brought the present suit for possession against Sundar Singh. This suit has been dismissed by both the Courts below on the ground that Sundar Singh had been in adverse possession since 1934. An appeal has been brought to this Court.

(2.) Mr. Amar Chand Hoshiarpuri submits that Sundar Singh was a party to the proceedings and therefore even symbolical possession of the land in dispute would put an end to adverse possession, and in support he has relied upon a Bench decision of the Lahore High Court 'MT. RAM KALI v. GOWARDHAN LAL', A. I. R. 1935 Lah 612, where it was held that symbolical possession is sufficient to dispossess a person who is a party to the execution proceedings. Reliance was there placed on a judgment of their Lordships of the Privy Council in 'RADHA KRISHNA v. RAM BAHADUR', 43 Ind Gas 268 (PC), where a decision of the Calcutta High Court in 'JUGGOBUNDHU v. RAMCHUNDER', 5 Cal 584 (FB) was approved of. In the Calcutta case, it has been held that symbolical possession is sufficient to dispossess a person who is a party to the execution proceedings, and their Lordships of the Privy Council remarked that they saw no reason to question the correctness of that decision which had been followed for many years. The same rule was again laid down by a learned Single Judge of the Lahore High Court in 'MOHAMMED SAADAT ALI v. PUNJAB NATIONAL BANK LTD. LAHORE', A. I. R. 1941 Lah 357. I am in respectful agreement with this rule and hold that the symbolical possession taken by the mortgagee put an end to the adverse possession and therefore the learned Judges of the Courts below were in error in holding that Sundar Singh was in adverse possession. It is unfortunate that Sundar Singh is not represented in this Court.

(3.) In the result, this appeal is allowed and the suit of the plaintiffs decreed. There will be no order as to costs in this Court as there .'s no appearance for Sundar Singh. Costs in the other two Courts will be paid by Sundar Singh.