C. Honniah, J.
1. This is a defendant's Second appeal. It arises out of a suit filed by the plaintiff-respondent for a declaration that he is the owner of the suit schedule properties and for possession of the same along with damages of Rs. 4,000/- for use and occupation of the suit properties.
2. The facts leading to the institution of the suit are that one Pankajamma, the widow of the deceased brother of the plaintiff and the defendant, had obtained a decree against the defendant and others in O. S. No. 1 of 1936-37 on the file of the Additional Subordinate Judge, Hassan, for possession of the suit properties and other properties. The date of the decree in that suit was 31-5-1938. Pankajamma assigned the said decree in favour of the plaintiff and the said assignment was recognised in Execution Case No. 16 of 1941-42. The plaintiff then sued out execution of the same in Execution Case No. 22 of 1952-53, for delivery of the suit properties. The plaintiff's case was that he obtained delivery of the suit properties through court on 19-12-1952. After obtaining possession of the properties, and at the request of the defendant, the plaintiff entrusted the suit properties to the defendant to look after them and give up the same to him whenever the plaintiff wanted them as he was residing at Ponnathpura. About 2-1/2 years prior to the suit, he demanded possession of the suit properties from the defendant, but, the defendant refused to deliver possession. Under these circumstances. the plaintiff filed present suit for the reliefs claimed by him in the suit.
3. The case of the defendant was that he was in continuous possession of the suit properties from 19-12-1952 and even prior to that date for a considerable period. He denied that the plaintiff took possession of the same through Court or that the plaintiff entrusted the management of the same to him at any time. The suit, according to him, was barred by adverse possession. Incidentally, he stated that he had effected some improvements on the suit lands believing himself to be the owner. On these pleadings, the following issues were raised by the trial Court.
1. Whether the plaintiff is the owner of the suit lands?
2. Whether the plaintiff is estopped from claiming title to the suit lands?
3. Whether the plaintiff was in possession at any time within twelve years prior to suit?
4. Whether the defendant is in adverse possession for over 12 years prior to suit ?
5. Whether the suit is barred by time?
6. Whether the plaintiff is entitled to any reliefs sought?
7. Whether the defendant is entitled to any relief of compensation?
4. The trial Court, after considering the evidence on both sides, came to the conclusion that the plaintiff was the owner of the suit properties within 12 years prior to the date of the suit. In that view, the trial Court decreed the suit of the plaintiff. Aggrieved by this decision, the defendant preferred an appeal to the Court of the Civil Judge, Hassan. The learned Civil Judge, by his judgment dated 5th August 1968 confirmed the judgment and decree of the trial Court. Hence this second appeal by the defendant.
5. In this appeal Sri Nanjundaswamy, learned counsel for the defendant, contended that the plaintiff did not take possession of the suit properties as contended by him on 19-12-1952. If the plaintiff did not take possession on that day, he contended that the defendant who was in possession of the properties during the pendency of O. S. No. 1 of 1936-37 continued to be in uninterrupted possession for more then 12 years and therefore the suit brought by the plaintiff after this period of 12 years is liable to be dismissed inasmuch as the defendant has perfected his title by adverse possession. He further contended that the Courts below have held that the plaintiff got symbolical possession on 19-12-1952 and if that fact is taken into consideration, even then, the plaintiff did not get actual possession of the suit properties on that date as he was entitled to get actual possession, in which case, there was no interruption of the continuous possession of the suit properties by the defendant. If that be so, the suit brought by the plaintiff is barred by time and is liable to be dismissed. He relied upon the decision in Mangaraja Shetty v. Subbiah. (1969) 1 Mys LJ 183. In that case it was pointed out that where the purchaser was entitled to actual possession but obtains no such possession, it cannot be said that he obtained symbolical possession; that if plaintiff obtained actual possession under Order XXI. Rule 95. Civil P. C. that would interrupt the possession of the judgment-debtors and that where the defendants plead that possession was not actually given to the purchaser, the burden is on them to show that their possession was not interrupted. The facts of that case are quite different from the facts of the instant case. Even other-wise, the ratio of the decision in the above case has no bearing on the facts of the instant case. In this case, the main question that arises for consideration is whether on 19-12-1952 the plaintiff got actual possession of the suit properties. On this point the trial Court has held as follows:--
'Ex, P-l is the certified copy of the delivery receipt executed by the plaintiff in favour of the Amin of the Court. The plaintiff has sworn that he has executed the original Ex. P-l. The receipt no doubt shows that the plaintiff was given actual physical possession of the 2 items of the property. P. W. 1 is an attestor to the delivery receipt. He has testified to the proceedings as per the original of Ex. P-l. The defendant has made a reference to these delivery proceedings in his reply notice Ex. P-5 as per the recitals Ex. P-5(a). He particularly admitted that these recitals pertain to the proceedings of the year 1952. More than all either in the written statement or in the course of the trial or during his deposition the defendant has not contested the truth or the validity of the Court proceedings which have constituted the plaintiff, the owner of the suit properties, nor has he denied even by implication the title of the plaintiff to the plaint schedule properties. For these reasons. I hold that the plaintiff has proved his title to the property......'
Further, it is seen from the delivery proceedings, that the defendant was absent at that time. That fact is admitted by the plaintiff as well as the attesting witness. Hence, although in the delivery receipt, the plaintiff purports to have taken the actual possession of the property, I am inclined to hold that what was taken was only a symbolical delivery of possession.'
The trial Judge having observed in the earlier part of his judgment that the delivery proceedings could not be disputed, he was wrong in holding that the plaintiff took only symbolical possession. What has persuaded the learned trial Judge to come to this conclusion appears to be that at the time of the delivery proceedings that took place the defendant was absent. If the defendant was absent at the time of the delivery proceedings and in fact the delivery proceedings took place as per law and possession was delivered to the plaintiff, merely because the defendant was absent it is wrong to hold that it was a symbolical possession. The appellate Judge on this point has stated thus:
'At this stage, I may discuss as to whether the plaintiff was put in actual possession of the suit properties or as to whether he was given only symbolical possession. The oral evidence of the plaintiff and his witnesses appears to berather artificial in this regard as observed by the trial Court .....
Admittedly the defendant was absent at the time when the delivery proceedings took place. In that case and in view of the clear admission of the plaintiff and his witnesses that the defendant has continued to be in possession of the suit properties for all these years, what appears to have taken place at the time of delivery of possession is that symbolical possession was delivered to the plains tiff and he was satisfied with the same'.
The learned appellate Judge was not correct in stating that 'the oral evidence of the plaintiff and his witnesses appear to be rather artificial in this regard as observed by the trial Court'. The trial Court on this point has not at all held that the evidence was artificial, and that has been stated in a different context. The learned appellate Judge without carefully looking through the judgment of the trial Court has made this observation and that observation as could be seen is wrong. However, he has also made the same mistake as was made by the trial Judge in coming to the conclusion that symbolical possession was given to the plaintiff on 19-12-1952 because the defendant was absent. This inference of the Courts below is totally wrong. The evidence clearly points out that actual possession was given to the plaintiff on 19-12-1952. If that be so. the possession of the defendant was disrupted on that date and the suit filed by the plaintiff within 12 years from that date is clearly within time. Under Order XXL Rule 95, Civil P. C. where the purchaser who is entitled to actual possession, if he is given symbolical possession, it is effective delivery within this rule as against the judgment-debtor and persons claiming under him. The remedy of the purchaser who is obstructed by them thereafter is to file a suit against them to recover possession within twelve years. Even if the case made out by the Court below is to be accepted that symbolical possession was given to the plaintiff on 19-12-1952, then, also there was disruption of possession of the defendant and the suit now brought by the plaintiff is clearly within time. It is not disputed that in order that the suit may be barred by time, the defendant must have been in uninterrupted possession for twelve years before the date of the suit. In the present case, that is not so. By the delivery of actual possession or even assuming it to be symbolical possession, the adverse possession of the defendant was interrupted. Time has therefore commenced to run from the date the plaintiff got possession of the properties and so considered, the suit having been brought within twelve yearsfrom that date, it was not barred by time. In Manikayala Rao v. Narasimhaswami : 1SCR628 it was held that:--
'Article 144 deals with a suit for possession of immovable property or any interest therein not otherwise specially provided for and prescribes a period oftwelve years commencing from the datewhen the possession of the defendant becomes adverse to the plaintiff. This article obviously contemplates a suit for possession of property where the defendant might be in adverse possession of it is against the plaintiff. Now it is well settled that the purchaser of a coparcener's undivided interest in joint family property is not entitled to possession of what he has purchased. His only right is to sue for partition of the property end ask for allotment to him of that which on partition might be found to fall to the share of the coparcener whoseshare he had purchased. His right to possession would date from the period when a specific allotment was made in his favour. It would therefore, appear that the alienee was not entitled to possession till a partition had been made. That being so, it is arguable that the defendants in the suit could never have been in adverse possession of the properties as against him as possession could be adverse against a person only when he was entitled to possession'.
6. Sri Nanjundaswamy, contended that the facts in Manikayala Rao's case ere different from the facts in the instant case and that being so, the ratio of that decision cannot be made applicable to the facts of the present case. I see no reason why the ratio of the decision in Manikayala Rao's case cannot be made applicable to the facts of the present case. Even in cases where symbolical possession is given, that disrupts adverse possession of the judgment-debtor and that being the case, the defendant cannot succeed in any view of the matter.
7. For the reasons stated above, this appeal fails and is dismissed with costs,