JAWALA PARSHAD Vs. JIWAN RAM

JUDGEMENT

(1.) This was a suit by Respondent to obtain possession of certain land on the allegations that he had previously been put in possession of it by order of Court in execution of a decree against the Appellants, and that he had subsequently been dispossessed by them. The Defendants denied that the Plaintiff had ever obtained possession and set up adverse possession of their own. On 25-3-1998 Ram Chand Plaintiff brought a suit against Baru, Kishen Lal and Jai Ram for possession of the land now in dispute and also some other property and finally succeeded in getting a decree in his favour of 27-11-1992 from the High Court, Patiala. The decree was put into execution and the judgment-debtors having refused to appear and their crop having been found to be standing on the land formal possession was delivered to the decree-holder on 25-2-1993 by Girdawar Qanungo in the presence of the patwari and Lambardar of the village, who were all present on the spot. The judgment-debtors were ordered to give Batai for the crop that had already been sown to the decree-holder and vacate the land after the harvest. The fact of the delivery of symbolical possession was proclaimed in the village by beat of drum. Ram Chand brought the present suit alleging that Kishen Lal and Jai Ram Defendants had again taken forcible possession of the land and that they should be ejected therefrom. Kalu and Wazir Singh tenants of of the first two Defendants were also impleaded as Defendants. Ram Chand transferred his rights to Jiwa Ram who was, on his application, joined as a Plaintiff on 29-9-2004. On the death of Jai Ram Defendant his son Jawala Parshad was substituted in his place. The Plaintiff's claim was resisted by the Defendants and they took various pleas but we are now concerned with only one of them, namely, that the delivery of symbolical possession to the Plaintiff in 1993 was not equivalent to actual possession and therefore it did not put an end to their adverse possession. The trial Sub-Judge found in favour of the Defendants and dismissed the suit as time barred. But on appeal the learned District Judge reversed the finding and holding the suit to be within time decreed the same. This is Defendants appeal.

(2.) It is strenuously contended by B. Daya Kishen, the learned Counsel for the Appellant, that symbolical possession given to the Plaintiff in 1993, when actual possession ought to have been delivered could not have the effect of interrupting the adverse possession. Warrants were placed on a conspicuous place of the property. It is urged that symbolical possession awarded without strictly observing the provisions of Order 21 Rule 36, Code of Civil Procedure, was a nullity and did not give a new start of limitation for institution of the suit. Reliance in support of his argument has been placed on Khairan V. Raghbir Singh, 1937 AIR(Lah) 350; Sardar Khan V. Abdulla Khan, 1924 AIR(Lah) 301; Jauhri Lal V. Peman,1920 AIR(Lah) 473; Mahadeo v. Janu Namji, 36 Bom 373 Bhagat Ram V. Ali Bakhsh, 1936 AIR(Lah) 749; Nidhi Ram V. Parsa Ram,1923 AIR(Lah) 693 and Harnam Singh V. Banda Singh, 1933 AIR(Lah) 427.

(3.) B. Lachhman Das, the learned Counsel for the Respondent, has very ably taken us through a wealth of case law on the point and he contends that even symbolical possession delivered in execution of decree for possession is equivalent to actual possession as against the judgment-debtor and effectively vests the property in the decree-holder so as to give him fresh cause of action for recovery of actual possession from the judgment-debtor. He further urges that the Defendants being parties to the execution proceedings were not entitled to question the legality of the procedure adopted in those proceedings. He, therefore, maintains that inspite of technical irregularities, if any, committed in the delivery of possession the continuity of the adverse possession of the Defendants was broken on 25-2-1993.