THAKUR JANG BAHADUR SINGH Vs. THAKUR HANWANT SINGH

JUDGEMENT

(1.) THIS appeal arises out of a suit for possession of a house, and the question to be determined is whether the suit is barred by limitation. The house in question was sold by auction in execution of a decree against, the first four defendants and the sale was confirmed on the 13 of January 1903. Delivery of possession was obtained on the 20 of November 1903. If limitation be computed from that date the suit is just within time, but if the plaintiff cannot avail himself of the delivery of possession made on the 20 of November 1903, as giving him a fresh start for the computation of limitation, the claim is admittedly time-barred. It was alleged in the Courts of first instance by the plaintiff that he got actual possession of the premises which be had purchased at auction, that the judgment debtors had gone out of the house but that he had subsequently permitted them to remain in the house and that the judgment-debtors and their eons had refused to vacate the house. THIS statement of the plaintiff was not believed by the Court of first instance, which held that the plaintiff never got actual possession of the house. The finding of the Court of first instance was affirmed by the lower Appellate Court and both Courts held that the nature of the possession delivered on the 20 of November 1903 was formal possession and not actual possession. Both the Courts below have held that, thin delivery of possession was sufficient to save the operation of limitation. In our opinion this view is erroneous, If possession was delivered in aacordance with law, that undoubtedly would, as between the parties to the proceedings relating to delivery of possession, give a new start for the computation of limitation and the possession of the defendants would be deemed to he a fresh invasion of the plaintiff's right and a new trespass upon the property. But if possession was not delivered in the mode provided by law, that delivery of possession cannot, in our opinion, give a fresh start to the plaintiff for computing limitation. Under the Civil P. C. which prevailed at the time when delivery of possession was made in the present case, two modes were provided for delivering possession to auction purchasers. One was the procedure laid down in Section 318 of the Civil P. C., 1882, and the other was that prescribed in Section 319. The section first named provided for the case in which the judgment-debtor was actually in possession and it directed that upon the application of the auction-purchaser the Court was to order delivery of possession to the auction purchaser or to any one appointed on his behalf to receive possession, and if need be, to remove the judgment-debtor from the occupation of the premises. The other mode of delivering possession related to property which from its nature was not capable of being actually delivered to the auction- purchaser. In the case of such property the mode for delivering possession is hid down in the section and possession would be delivered by proclaiming the sale certificate and by beat of drum. In the present case the property was in the occupation of the judgment debtor and, therefore, the only mode in which possession could be delivered was that prescribed in Section 318. According to the finding of the Courts below to which we have referred, this kind of possession was not delivered to the auction-purchaser, the present plaintiff. Therefore, in our opinion, the delivery of possession made to the plaintiff in 1903 could not be of any avail to hi in for computing limitation for the purposes of the present suit, Our attention was drawn to the judgment of this Court in Mangli Prasad V/s. Debi Din 19 A. 499 : A.W.N. (1897) 127 : 9 Ind. Dec. (N.S.) 322. To that judgment one of us was a party. That was a case in which possession could only be formally delivered and was net a case in which actual possession could be delivered to the auction- purchaser, and it was held that the delivery of possession made to the auction- purchaser was sufficient to give him a new start for calculating limitation. It was never intended to be held in that case, and in oar opinion it was not held, that whether possession was delivered under Section 318 or 319, any delivery of possession would be sufficient to save limitation. What was intended to be held was that where possession is delivered in the mode appropriate to the particular case and in compliance with the law which applied to that case, such delivery of possession would save the operation of limitation. THIS was explained in the later case of Lal Rajendra Kishore Singh V/s. Bhagwan Singh 39 Ind. Cas. 745 : 39 A. 460 : 15 A.L.J. 361. A ruling of a learned Judge of this Court has also been cited to us, in which it is said that a wider view of the provisions of the law was taken. That is the case of Rahim Bakhsh V/s. Muhammad Hafiz 10 Ind. Cas. 319. On a cursory reading of that judgment it may be considered that it supported the contention of the respondent, but it seems to us that if we look into the facts of that particular case, it was a case in which possession was properly delivered in the mode in which the auction-purchaser had obtained it. Having regard to the nature of the property, possession could not be delivered by actually removing the judgment-debtor from the property. The Full Bench decision of the Bombay High Court in Mahadev Sakharam Parkar V/s. Janu Namji Hatley 14 Ind. Cas. 447 : 36 B. 373 : 14 Bom. L.R. 115 supports the view which we have enunciated above. It is urged that this decision of the Bombay High Court runs counter to the later decision of their Lordships of the Privy Council in Radha Krishna Chanderji V/s. Ram Bahadur 43 Ind. Cas. 268 : 16 A.L.J. 33 : 23 M.L.T. 26 : 4 P.L.W. 9 : 34 M.L.J. 97 : 7 L.W. 149 : 22 C.W.N. 330 : 27 C.L.J. 191 : (1918) M.W.N. 163 : 20 Bom. L.R. 502 (P.C.). We do not agree with this contention. The property in the case which was before their Lordships of the Privy Council was land in the occupation of tenants and possession had been delivered in accordance with the provisions of the law relating to delivery of possession in respect of such land. Their Lordships held that snob possession gave, as between the parties to the proceedings relating to delivery of possession, a new start for the computation of Limitation. In so holding their Lordships approved of the decision of a Full Bench of the Calcutta High Court in Juggobundhu Mukerjee V/s. Ram Chunder Bysack 5 C. 584 : 5 C.L.R. 548 : 3 Shome L.R. 68 : 2 Ind. Dec. (N.S.) 979. That also was a case relating to Zemindari property which was in the possession of tenants and of which actual possession could not be delivered.

(2.) ON behalf of the respondent much reliance has been placed on the decision of the Calcutta High Court in Lokessur Koer V/s. Purgun Roy 7 C. 418 : 3 Ind. Dec. (N.S.) 819, which was followed in Hari Mohan Shaha V/s. Baburali 24 C. 715 : 12 Ind. Dec. (N.S.) 1146. These two cases no doubt support the contention of the respondent and go the length of holding that whatever may have been the mode in which possession was delivered, the delivery of possession would, as between the parties to the case, be a starting point for computing limitation. We have considerable hesitation in following the learned Judges in that case, and their opinion is contrary to, the view held by the same Court in Shoteenath Mookerjee V/s. Obhoy Nund Roy 5 C. 331 : 5 Ind. Jur. 136 : 2 Ind. Dec. (N.S.) 822. The case of Kocherlakota Venkatakristna Row V/s. Vadrevu Venkappa 27 M. 262 is distinguishable from the present case having regard to the facts and circumstances of that case. The same remarks applies to the case of Dhansingh v. Ganpat 24 Ind. Cas. 850 : 10 N.L.R. 60. In these cases possession had been delivered in the right mode having regard to the nature of the property. In this view we hold that where possession has been delivered in accordance with the provisions of the law, that is, in accordance with Section 318 or 319 of the old Code, as the case may be, having regard to the nature of the property, or under Order XXI Rule 95 or Rule 96, in each case regard being always had to the nature of the property and the mode in which possession ought in law to have been delivered, and such possession has been delivered, the auction-purchaser gets a fresh start for the computation of limitation. Bat where sash possession has not been delivered, the mere fait of formal delivery of possession is not available to him for saving the operation of limitation. In the present case possession was not delivered in the manner required by law and, therefore, the delivery of possession, which took place on the 20 of November 1903, could not be of any help to the plaintiff as regards the saving of limitation. We, therefore, allow the appeal, set aside the decree of the Courts below and dismiss the plaintiff's suit with costs including in this Court fees on the higher scale.