DHARMALA KAMAYYA Vs. BHIMARASETTI MAHALAKSHMI

JUDGEMENT

(1.) The plaintiff obtained a decree for possession of certain land. In execution he applied for delivery of possession under Order 21, Rule 35 and delivery was ordered. The finding is that what was affected was no more than a formal delivery of possession. He waited for nearly 12 years after that and then sued again. The question for decision--the defendant having been in possession both before and after the delivery, for a total period of about 20 years--is whether the suit is barred by limitation. The District Munsif decreed the suit, but the District Judge held that it was time barred, a conclusion in which Davadoss, J. concurred in second appeal. He dissented from Govind Biliraji V/s. Venkata Sastrulu [1907] 17 M. L. J. 598 and followed Govindasami Pillai V/s. Pethaperumal Chetty [1918] 44 I. C. 839 which he considered, was binding on him and certain rulings of the Bombay and Allahabad High Courts. The effect of these decisions is this, that, in case where a decree-holder is bound to apply for actual as opposed to symbolical possession, but obtains only the latter, the delivery of possession is a nullity and does not give rise to a fresh period of limitation.

(2.) Authority on the question is divided. The High Court of Calcutta has invariably taken a view directly opposed to that of the two Courts above referred to. And so has this High Court since the ruling reported in Kocherlakota VenkataKrishna Rao V/s. Vedveru Venkappa [1904] 27 Mad. 262 until a contrary opinion was expressed (obiter) in Govindasami Pillai v. Pethaperumal Chetty [1918] 44 I. C. 839 The controversy would seem to have been concluded by a ruling of the Privy Council Radha Krishna V/s. Ram Bahadur A. I. R. 1917 P. C. 197 which approved Juggobhundhu Mukerjee V/s. Ram Chander Bysack [1880] 5 Cal. 534 It is, no doubt, true that both of these were cases where the only delivery to which the decree-holders were entitled was symbolical, but their lordships of the Privy Council laid down a rule of general application to the effect that symbolical possession availed to dispossess the defendants sufficiently because they were parties to the proceedings in which it was ordered and given.

(3.) The Bombay High Court considered this rule in Mahadevappa Dundappa V/s. Bhima Doddappa A. I. R. 1922 Bom. 27 and expressed the opinion that the view previously taken by that Court might, when the occasion arose, have to be reconsidered. In Jobeda Khatun V/s. Tulsi A. I. R. 1923 Cal. 82 the rule laid down by the Privy Council was restated and it was followed by Odgers, J. in Ranganatha Iyer V/s. Srinivasa Aiyangar A. I. R. 1926 Mad. 42 In Maharaja Udai Nath Sabi Deo V/s. Sunderbans Koer A. I. R. 1923 Patna 76 Adami, J. of the Patna Hight Court, followed the Calcutta and Madras decisions. Daniels, J. of the Allahabad High Court in Harpal Kurmi V/s. Mihan Kurmi A. I. R. 1921, All. 811 held that, in a case, where the warrant purported to give actual possession, which was the appropriate method of relief, though in the sequel it proved that the procedure adopted was not effective there was actual delivery, which was sufficient to interrupt adverse possession. He remarked: It would be destructive of all, respect for law and authority of the Court if it were held in such cases (i. e., cases in which the judgment-debtor stops away at the time of delivery and quietly resumes possession later) that the judgment-debtor could treat the delivery of possession as a nullity and claim to have been in adverse possession from the date of his original entry.