JITENDRA KUMAR PAL CHOWDHURY Vs. MOHENDRA CHANDRA SARMA

JUDGEMENT

(1.) This is an appeal by the first defendant in a suit for declaration of title to land and for recovery of possession thereof. The plaintiffs-respondents claim title to the disputed property by purchase of a share of an estate at a sale for arrears of revenue held on the 25th October 1887, under Section 70 of Regulation I of 1886. On the 17th November 1888 the Sub- Divisional Officer issued to the purchasers a sale-certificate, in which it was stated that the Sale had been held on the 25th October 1887 in accordance with the provisions of the Assam Land and Revenue Regulation and had been confirmed on the 31st October 1888. The present suit was commenced on the 26th October 1900. On behalf of the defendants, it was contended in the Court below that the suit was barred by limitation. This contention has been overruled by the Subordinate Judge. In this Court, in answer to the contention of the defendant- appellant that the suit is barred by limitation, the plaintiffs-respondents have argued that Article 144 of the Second Schedule to the Indian Limitation Act governs the matter. We shall assume that the Rule of limitation applicable is contained in Article 144, which provides that a suit for possession of immoveable property, not otherwise provided for in the Limitation Act, must be brought within 12 years from the date when the possession of the defendant became adverse to the plaintiff. The question in controversy is, when did the possession of the defendants become adverse to the plaintiffs in the case before us? On behalf of the plaintiffs it was argued in the Court below that as the sale-certificate recited that the sale was confirmed on the 31st October 1888, the possession of the defendants became adverse to the plaintiffs from that date. This position was contested by the defendants, who raised a question as to the date when the sale became final under the provisions of the Regulation. The Subordinate Judge held that under Section 85 the certificate was conclusive evidence as to the date of confirmation of sale. In our opinion this view is clearly erroneous, for Sub-section (3) of Section 85 lays down that the certificate granted to the purchaser is conclusive evidence of regularity of the proceedings, and does not provide that the certificate is conclusive evidence of the date of confirmation of sale. It is worthy of note that the expression confirmation of sale does not find a place either in Section 80 or Section 85 of the Regulation. Sub Section (1) of Section 80 provides that a sale, on which the purchase money has been paid and against which no application under Section 79 to set it aside has been preferred, shall, subject to the provisions of Sections 81 and 82, be final at noon of the sixtieth day from the date of sale, reckoning the date of sale as the first of (he sixty days. Sub Section (2), which deals with the case where an application has been preferred to set aside the sale, lays down that a sale against which such an application has been preferred and has been dismissed by the Chief Commissioner or Commissioner, shall, subject to the provisions of Sections 81 and 82, be final from the date of dismissal, if more than sixty days from the day of sale, or, if less, then at noon of the sixtieth day as provided in Sub-section (1). In the present case, an application was made to set aside the sale. The question is, when was that application dismissed by the Chief Commissioner? We have on the record a letter from the Secretary to the Chief Commissioner to the Deputy Commissioner, in which it is stated that the Chief Commissioner directs the confirmation of the sale held on the 25th October 1887. This letter bears date the 18th September 1888. It is thus plain that the application to set aside the sale must have been dismissed by the Chief Commissioner on or before the 18th September 1888. Consequently, under Sub-section (2) of Section 80, the sale became final on or before the 18th September 1888, and under Sub-Section 2 of Section 85 the title to the property sold vested in the purchaser from such date. How the entry in the sale-certificate came to be made, is fairly clear from the record. It appears that the letter from the Secretary to the Chief Commissioner to the Deputy Commissioner was communicated to the Sub-Divisional Officer by whom the sale had been held; the latter officer, on the 30th October 1888, recorded an order of confirmation of sale and subsequently issued the sale-certificate which bore date the 7th November 1888. What is stated in the sale-certificate as the date of confirmation of sale cannot, however, operate in law as the date when the sale became final under Section 80. But it has been strenuously argued for the respondents that the Court is not competent to look beyond the sale-certificate, and is bound to presume therefrom that under Sub-section (2) of Section 85, title vested in the purchaser from the date of the certificate, that is, from the 7th November 1888. This contention is obviously fallacious. Under Sub-Section 2 of Section 85, the date of the certificate is the date when the sale became final, and under Sub-section (2) of Section 80 the date when the sale became final is the date of dismissal of the application to set aside the sale by the Chief Commissioner. An entry in the certificate, by the officer who drew up and issued the document, that the sale was confirmed on the 30th October 1888, could not possibly affect the provisions of Sub-section (2) of Section 80 and Sub-section (3) of Section 85. We hold accordingly that in this case the sale became final on or before the 18th September 1888. From that date, the title vested in the plaintiffs as purchasers at the revenue sale, and the possession of the defendants became adverse to the plaintiffs prima facie from such date. Consequently, under Article 144 the suit is barred by limitation.

(2.) It has been argued as a last resort that as possession was delivered to the purchasers by the Revenue Authorities on the 29th November 1888, the possession of the defendants must be taken to have become adverse to the plaintiffs only from such date, and, in support of this contention, reliance has been placed upon the decision in Mozuffer Wahid v. Abdus Samad 6 C. L.R. 539. That case, even if it be assumed to have been correctly decided, is clearly distinguishable and has no application to the circumstances of this case. In that case, this Court applied to a revenue sale of an entire estate the principle laid down by the Full Bench in Juggobundhu Mukerjee v. Ram Chunder Bysack 5 C. 584 : 5 C. L. R, 548 : 3 Shome L.R. 68. in relation to delivery of possession as between a decree-holder and a judgment-debtor. It was ruled by the Full Bench that in such a case, in contemplation of law, both the parties, that is, the decree-holder and the judgment debtor, must be considered as present at the time when the delivery is made and that, consequently, as against the judgment debtor, the symbolical delivery thus given must be deemed equivalent to actual possession. The Full Bench, however, proceeded to observe that as against third parties, that is, persons not parties to the decree, this symbolical possession, as it is called, would be of no avail, because they are not parties to the proceeding. A similar principle has been applied by a subsequent Full Bench in the case of Juggobundhu Mitter v. Purnanund Gossami 16 C. 530 : 8 Ind. Dec. (N.S.) 350. as between an execution-purchaser and the judgment-debtor. Even if we assume, therefore, as was done in the case of Mozuffer Wahid v. Abdus Samad 6 C. L.R. 539. that this principle is applicable as between a purchaser at a revenue sale and the defaulting proprietor, the doctrine would have no application to persons other than the defaulting proprietor, as was pointed out in the case of Mir Waziruddin v. Lala Deoki Nandan 6 C. L.J. 472 at p. 482. Now, in the case before us, the appellant was not a defaulting proprietor. The case for the plaintiffs is that the appellant had no interest in the property sold; he was a trespasser and was, at the time of the revenue sale, in adverse possession of lands which are really included in the estate sold but which he claimed as situated within a neighbouring estate owned by him, His adverse possession, according to the plaintiffs, had not at the time continued for, the statutory period so as to ripen into ownership. The principle recognized in Rahim-ud-din v. Bhabmgana Debya 1 Ind. Cas. 81 : 13 C.W.N. 407. had consequently no application and he could not be deemed a defaulting proprietor at the date of the sale. He was thus a stranger to the proceeding for delivery of possession, and the symbolical delivery alleged to have been effected on the 25th November 1888 could not avail as against him. We bold accordingly that the suit is barred by limitation; and in this view it is needless to discuss the interesting questions as to the true effect of Sections 70 and 72 of Regulation I of 1886 which have been ably argued before us by Counsel on both sides.

(3.) The result is that this appeal is allowed the decree of the Subordinate Judge set aside in so far as it is not a decree by consent of parties, and the suit dismissed with costs. This order will not affect the decree of the Subordinate Judge in so far as it was a decree by consent of parties. We assess the hearing-fee in this Court at fifteen gold mohurs.