V RANGANATHA AIYAR Vs. SRINIVASA AIYANGAR

JUDGEMENT

(1.) The suit house originally belonged to the 1 defendant's father Narayana Aiyangar and his brother, the 2nd defendant, Alagasinga Aiyangar. A partition was effected between the brothers in 1881, but not by metes and bounds. Narayana's share was sold to one Dikshitar on 1 May, 1905. Alagasinga's share was sold to the plaintiff on 10 March, 1906. On 30 March, 1906, Narayana's share was delivered to Dikshitar by symbolical delivery. On 25 March, 1907, Dikshitar sold his share to Alagasinga's son, the 3 defendant. On 3 July, 1917, the plaintiff attached Alagasinga's share in execution of a decree. On 4 March, 1918, Narayana put in a claim petition. On 10 June, 1918, the claim was allowed and on 19 August, 1918, the present suit was brought under Order 21, Rule 63. Mean while, on 3 April, 1918, Alagasinga had brought a suit to recover possession of his share, a suit which has been dismissed.

(2.) The Lower Courts have found that there has been adverse possession by Narayana's son, the 1 defendant, for twelve years before suit, and now in this second appeal two questions arise : (1) whether the attachment by the plaintiff on 3 July, 1917, puts an end to the adverse possession of 1 defendant, namely, whether the possession of 1 defendant from that date till the suit was filed continued to be adverse and uninterrupted ; (2) whether the symbolical delivery of 30 March, 1906, put an end to the 1 defendant's adverse possession or not. The decree in which symbolical delivery was given was against Narayana alone and 1 defendant, his son, was not a party to it.

(3.) The first point has been expressly decided in Seetharami Reddi V/s. Venku Reddi (1901) 11 MLJ 344. In that case the defendants had been in possession for less than twelve years at the time of attachment, but continued in possession until the suit was brought more than twelve years after their possession commenced. It was held in this Court that the attachment could not have the effect of arresting the running of time against defendants. If that ruling is adopted, it is clear that the plaintiff's suit is barred by limitation. But it is urged for the appellant that the decision in Paridiyan Pillai V/s. Vellayappa Rowther is authority to the contrary, and this contention appears to have some force, for, in that case, the facts were very similar and it was decided against the parties claiming adverse possession. Reference is made in the judgment to Seetharami Reddi V/s. Venku Reddi (1901) 11 MLJ 344 and it is not dissented from nor criticised in any way, apparently because it was held that no question of interruption of possession or of its continuance despite the attachment arose. Although, therefore, the decision appears to be in direct contravention of the decision in Seetharami Reddi V/s. Venku Reddi (1901) 11 MLJ 344 it is based on other grounds, grounds which are not too clear, because in the judgment the facts do not appear to be correctly set out owing to the apparent transposition of the words "plaintiff" and "defendant" in two places. Reliance is also placed on Vasudeo Atmaram Joshi V/s. Eknath Balkrishna Thite (1910) ILR 35 B 79 and that no doubt is an authority directly in favour of the appellant, for it was there held that in such a suit, namely, under Section 283 of the old Civil Procedure Code, it must be proved " that on the date of attachment which was subsequently raised by order of the Court on the application of the 1 respondent, their judgment-debtors had a subsisting right to the property." For this proposition Harishankar Jebhai V/s. Naran Karsan (1893) ILR 18 B 260 is relied on, but a reference to the latter shows that in that case the date of the order on the claim petition was treated as the date on which the adverse possession ceased. If that date is taken in the present case, namely, 10 June, 1918, the plaintiff's suit is barred by limitation. This latter proposition is supported by the authority of the Calcutta High Court in Phul Kumari V/s. Ghanshyam Misra (1907) ILR 35 C 202 (PC), where it was held that the order of the Court was the basis of the subsequent suit. We have not been referred to any other authority than Vasudeo Atmaram Joshi v. Eknath Balkrishna Thite (1910) ILR 35 B 79, which is directly in point, and inasmuch as that case purports to be based on a prior decision which was not to the same effect, there is no argument in the judgment which goes to show that the decision in Seetharami Reddi V/s. Venku Reddi (1901) 11 MLJ 344 is incorrect.