RAJENDRA KISHORE SINGH Vs. BHAGWAN SINGH

JUDGEMENT

(1.) This appeal arises out of a suit in which the plaintiffs claimed joint possession of a one-third share in certain muafi land. This share originally belonged to one Balwant who made a mortgage of it. A decree was obtained on foot of this mortgage on the 18th of April, 1899. The decree was made absolute on the 20th of November, 1899, and in execution of that decree the property was put up for sale on the 20th of March, 1900, and purchased by the plaintiffs father. On the 20th - of September, 1900, the plaintiff s father obtained formal possession under Section 319 of the Code of Civil Procedure of 1882, which corresponds with Order XXI, Rule 96, of the present, Code. The present suit was instituted on the 18th of September, 1912. The defendant pleaded limitation. Both the courts below overruled this plea, but on second appeal to this Court a learned Judge overruled both the courts below and dismissed the plaintiff s suit on the ground of limitation. It is admitted that if time began to run against the plaintiff from the 20th of September, 1900, the suit is within time. On the other hand, if time began to run from the date at which the sale became absolute, the suit is barred by limitation. I am quite satisfied (as I think the trial court and the lower appellate court were) that the property was of that nature which did not permit of actual physical possession being given to the auction purchaser. There may have been tenants, but there were certainly other "persons entitled to occupy the land." The auction- purchaser had only purchased an undivided third. I am clearly of opinion that time begun to run from this formal possession. Order XXI, Rule 95, provides for actual possession being given where the nature of the property permits actual possession to be given. It seems to me that if actual possession was given under Rule 95 and the judgement-debtor immediately afterwards re-took possession, it would be impossible to contend that time did not begin to run against the auction-purchaser from the time when the defendant re-took possession. Order XXI, Rule 96, provides for the formal delivery of possession where the nature of the property does not permit of actual possession being given, but it is clear to me that the legal effect of formal possession must be the same as the actual possession in the rule immediately preceding. This view has been taken consistently by this Court in a number of cases commencing with the case of Mangli Prasad v. Debi Din (1897) I.L.R. 19 All. 499; Narain Das v. Lalta Prasad (1896) I.L.R. 31 All. 269; Jagan Nath v. Milap Chand (1906) I.L.R. 28 All. 722 and Rahim Bakhsh v. Muhammad Hafiz (1909) 10 Indian Cases, 319. I entirely agree with the view taken in these cases and think that they ought to be followed. I would allow the appeal and restore the decree of the court below. Banerji, J.

(2.) I am of the same opinion. I expressed my views on the point in the case of Mangli Prasad v. Debi Din (1897) I.L.R. 19 All. 499. In the present case Section 319 of the Code of Civil Procedure of 1882, applied, and therefore the formal possession which was delivered was in compliance with law. The nature of the property was such that actual possession could not be delivered in respect of it. Therefore from the date of the delivery of formal possession a fresh start for the computation of limitation was obtained by the auction-purchaser. I agree in the order proposed.

(3.) We allow the appeal, set aside the decree of the learned Judge of this Court and restore the decree of the lower appellate court with costs of both hearings in this Court.