HARPAL KURMI Vs. MOHAN KURMI

JUDGEMENT

(1.) THE plot in dispute in this case originally formed part of an agricultural holding. THE defendants took it on lease from the Maharaja of Benares to whom it belonged in the year 1887. During the currency of the lease the defendants built a house for agricultural purposes and they subsequently converted it into a residential house. In the year 1915 the Maharaja ejected them and on 9 July 1915 delivery of possession was made to him through an amin, I have read the dakhalnama and it purports to convey actual possession. THE finding is that notwithstanding this the defendants never really gave up possession of the house. THE question for decision is whether delivery of possession under the decree interrupts adverse possession and gives a fresh starting point for limitation. THE present plaintiffs are lessees from the Maharaja under a lease subsequent to the ejectment of the defendants. Both the Courts below have found in their favour and I agree with this finding. THEre is no doubt that delivery of actual possession under a decree interrupts adverse possession. Indeed it has been held in Lai Rajendra Kishore Singh V/s. Bhagwan Singh 39 Ind. Cas. 745 : 39 A. 460 : 15 A.L.J. 361. that even delivery of formal possession in a proper case is sufficient to give a new starting point for limitation and this has been held also by 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.). THE appellants rely on the case of Jang Bahadur Singh V/s. Hanwant Singh 63 Ind. Cas. 212 : 43 A. 520 : 19 A.L.J. 469. That case does not really assist them. It was a case in which the mode of delivery of possession appropriate to the circumstances was not resorted to and on this ground it was held that adverse possession was not interrupted. THE person to whom possession was to be delivered was the auction-purchaser. Where the judgment-debtor was in possession of the property the proper procedure was for the Court to order actual delivery of possession to the auction-purchaser. Where, however, the property from its nature was not capable of being actually delivered the mode of giving possession was by proclaiming the sale certificate and by beating the drum. THE case with which the Full Bench had to deal was one in which the former method should have been but the latter method actually was adopted. THE present case is entirely dissimilar. Here the dakhalnama purported to give actual possession, which was the appropriate mode of relief though in the sequel it proved that the procedure adopted was not really effective. This must often be the case, An amin goes down to the spot and hands over possession to the decree-holder, THE judgment-debtor keeping away. As soon as the amin and the decree-holder have gone the judgment-debtor quietly resumes possession. It would be destructive of all respect for law and authority of the Court if it were held that in such cases the judgment-debtor could treat the delivery of possession as a nullity and claim to be in adverse possession from the date of his original entry on the land. THE suit has been rightly decided by the Courts below and I dismiss the appeal with costs.

(2.) AS there is a deficiency of Es. 18-4-0 on the part of the plaintiffs respondents in the Court below which has not so far been made good the decree passed in their favour will be subject to this condition that they will not be entitled to execute it until the deficiency has been paid.