JOGENDRA KRISHNA CHAUDHURY Vs. JOY SHIB CHAUDHURY

JUDGEMENT

(1.) The facts of the case are that two co-sharers of a plot of land brought in 1909 a suit for declaration of title to two-ninths share of the same and for partition. The suit was decreed in 1915 and by the allotment made by the Commissioner appointed to effect the partition, the disputed plot of land fell to the share of the plaintiffs in that suit who are now-represented by the plaintiff of the present suit. In execution of that decree, the present plaintiff obtained possession through Court on the 24 of January, 1920, Subsequently on the 19 of January, 1921, ho instituted the present suit against the defendant for recovery of khas possession of the land in suit. It appears that in 1912, that is, during the pendency of the partition suit, one of the defendants let out the plot of land in suit to the defendant by way of a permanent lease. Several objections were taken by the defendant to the present suit but we are concerned with only one which was argued on his behalf. It was argued that the plaintiff in the partition suit was entitled under the decree to obtain khas possession of that plot allotted to him by the final decree in the suit and that he not having taken such possession is not entitled to maintain the present suit under the provisions of Section 47 of the C.P.C., or in other words, the only remedy that was open to the plaintiff in the partition suit was to execute the decree obtained by him in that suit in full and to recover actual possession under it. This argument is based on the admission, that the present defendant was a person bound by the decree in the partition suit, and; therefore, a representative of the judgment debtor within the meaning of Section 47, C.P.C. In the present suit, the plaintiff has said that the cause of action arose on the 24th January, 1920, the date on which he was given symbolical possession of the land in suit. It is contended on behalf of the appellant that the delivery of symbolical possession did not give rise to a fresh cause of action for a suit and the only remedy open to the plaintiff was to execute the partition decree. It further appears that the plaintiff attempted to take possession of the land in execution of the partition decree. He was opposed by the defendant who was then in possession of the land, and after some witnesses were examined on both sides, the plaintiff's Pleader stated that his client was willing to take symbolical possession and did not pray for khas possession of the disputed land by dismantling the huts of the defendant. Defendant raised no objection to the symbolical possession being given and it was accordingly delivered to the plaintiff.

(2.) The point that is now raised before us was not raised in either of the Courts below. We are accordingly not in possession of all the facts bearing upon it and we have to proceed upon the findings of fact of the Court below and certain exhibits placed in our hands by the appellant. It is not clear as to whether the possession was given to the plaintiff under Order XXI, Rule 35, C.P.C., or under Rule 36. It seems to us that the plaintiff attempted to obtain possession under Rule 35; but as the defendant, as has been admitted on his behalf, raised his independent rights to the property and said that he was not bound by the decree not being party to the partition suit, possession was given to and obtained by the plaintiff-decree-holder under Rule 36. This case has been argued before us on the assumption that the defendant was a person who was bound by the partition decree having derived his title from one of the parties to the suit during the pendency of the suit. If that is so, then delivery of symbolical possession amounts, according to the view accepted by the Court, to actual possession, and the cause of action of the present suit for recovery of possession by turning the defendant out of the disputed land must be deemed to have arisen from the date when the plaintiff became entitled to take possession by evicting the defendant. This view must be now held to be beyond cavil or dispute having been settled by a series of decisions beginning with the Full Bench case of Juggobundhu Mukerjee V/s. Ram Chunder Bysack 5 C. 584 : 5 C.L.R. 584 : 3 Shome L.R. 68 : 2 Ind. Dec.(N.S.) 979. The case of Shama Charan Chatterji V/s. Madhub Chandra Mookerji 11 C. 93 : 5 Ind. Dec. (N.S.) 820, is on all fours with the present case. The same view has been taken in several subsequent cases of which it is sufficient to mention only one Janki Nath Saha V/s. Baikuntha Nath Ghattak 70 Ind. Cas. 602 : 27 C.W.N. 259 : 36 C.L.J. 140 : A.I.R. 1922 Cal. 176, the last case is an authority for the proposition that in such circumstances as those in the present case, the defendant is to be regarded either as a person bound by the decree or one not so bound. If he is bound by the decree, the possession delivered against him, if symbolical, amounts to actual possession and gives start of fresh cause of action. If he is a person not bound by the decree, he is to show that his right by adverse possession has been perfected as against the decree-holder under Art. 144 of the Limitation Act. In either case, the plaintiff is entitled to base his cause of action from the date of the delivery of symbolical possession to him, and the present case that has been brought within one year of that date, is within time. The view that has been consistently held by this Court as settled by the Full Bench decision of Jaggobundhu's case 5 C. 584 : 5 C.L.R. 584 : 3 Shome L.R. 68 : 2 Ind. Dec.(N.S.) 979, has been approved by the Judicial Committee of the Privy Council in the case of Radha Krishna Chanderji V/s. Ram Bahadur 43 Ind. Cas. 268 : 22 C.W.N. 330 : 16 A.L.J. 33 : 23 M.L.T. 26 : 4 P.L.W. 9 : 34 M.L.J. 97 : 7 L.W. 149 : 27 C.L.J. 191 : (1918) M.W.N. 163 : 20 Bom. L.R. 502 (P.C.).

(3.) On these grounds, we are of opinion that there is no substance in this appeal, which must, therefore, be dismissed with costs.