1. This is a suit by the plaintiffs to recover possession of property of which they claim title, from the defendants, alleging prior dispossession. Both the lower Courts have found that the plaintiffs' title to the property in suit is proved but his suit has been dismissed on the ground that he has not shown, as he should show under Article 142 of the Indian Limitation Act, that he was in possession within twelve years of the suit.
2. Now the various proofs which the plaintiffs gave of possession are all issues of fact disposed of by the judgments of the lower Courts with the exception of one that survives in this appeal. That is the plaintiffs' claim to have obtained possession under execution proceedings which followed on a partition suit filed by their brother in 1907. In that suit the two plaintiffs were the first and second defendants and a decree for partition was made on the 11th October 1907. The plaintiffs claim that they got possession of the property in execution proceedings under that decree and that the defendants were bound because they were made parties in that suit.
3. Now the suit was a partition suit filed against the two plaintiffs by their brother and the defendants in this suit were impleaded on the ground that they were in possession and colluding to defeat the plaintiff, The suit was therefore in effect a suit for partition as against the present plaintiffs and a suit for ejectment as against the present defendants. The decree, however, that was made gave the relief of partition only as between the two present plaintiffs and their elder brother but no relief was given as against the present defendants. The execution proceedings were referred to the Collector on the 17th December 1910 and the Surveyor, who was the ministerial officer of the Collector to make the partition, reported that he was unable to make the partition because the present defendants claimed that they were in possession and that the land was theirs. On this report, the Subordinate Judge gave instructions to the Collector to the effect that the obstruction of the defendants would be of no avail. The matter was then again referred to the Surveyor and before the Surveyor, on the 30th May 1911, the two plaintiffs signed an acknowledgment that they had received possession of the land in suit.
4. Now the acknowledgment of the 30th May 1911 does not show that the defendants were dispossessed of the land in suit or that physical possession was given. Mr. Desai, however, contends that the transaction of that date amounted to delivery of symbolical possession and that in the recent case of Radha Krishna v. Ram Bahadur : (1918)20BOMLR502 , P.C, the Privy Council have held that symbolical possession is sufficient to interrupt adverse possession of a person who was a party to the proceeding in which possession was ordered and given. But this judgment was given in a case where the land was in the possession of cultivating tenants and proceeds on the basis that the case was one in which symbolical possession could be given. It in no way affects the Fall Bench ruling of this Court in Mahadev Sakharam v. Janu Namji I.L.R. (1916) Bom. 373 14 Bom. L.R. 115. that symbolical possession is effective only in the cases in which the Code recognizes symbolical possession, Here if symbolical possession was given, it could only be on the assumption that defendants who were in possession were not bound by the decree : Order XXI, Rule 36. If they were bound by the decree then the so-called symbolical possession was ineffective. Further it is not a case which can be brought within the Privy Council ruling because though they were parties to the partition suit yet in substance the suit against them was only for ejectment and no order was passed or no decree given against them for ejectment.
5. On these two grounds, therefore, (1) the possession given was not symbolical possession as justified by the Code, and (2) they were not in substance parties to the suit, the case is outside the scope of the Privy Council ruling.
6. We, accordingly, confirm the decree of the lower Court and dismiss this appeal with costs.