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NaraIn Das Vs. Lalta Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1899)ILR21All269
AppellantNaraIn Das
RespondentLalta Prasad and ors.
Excerpt:
execution of decree - civil procedure code, section 319--possession--formal possession--effect of formal possession as against a third person other than the judgment-debtor--limitation. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed..........in possession. therefore it cannot be said that such delivery of possession gave the subsequent auction purchaser a new cause of action, so as to make the possession of the person other than the debtor, who was already in possession, adverse possession from the date of delivery of possession to the auction purchaser. the possession of such person commenced on the date on which he obtained possession, and from that date must be regarded as adverse to the debtor or to the auction purchaser. as in the present case the defendant was in possession for more than twelve years anterior to the institution of the suit, the claim was barred by limitation, either under article 138 or 144. mr. baldeo ram on behalf of the respondents relied on the doctrine of lis pendens. there can be no doubt that.....
Judgment:

Banerji and Aikman, JJ.

1. The suit out of which this appeal has arisen, was one for possession of mortgage rights in certain zamindari properties. Those rights originally belonged to one Shankar Lal. He mortgaged them to the father of the present plaintiffs, and the father of the plaintiff's obtained a decree on his mortgage in September 1883. In execution of that decree he purchased Shankar Lai's rights on the 20th August 1884. On the 4th of May 1885, formal possession was delivered to him, apparently under Section 319 of the Code of Civil Procedure. At that time, it is admitted, the present appellant, Narain Das, was in possession by virtue of an auction-purchase in execution of a decree held by him against Shankar Lal. His purchase was made on the 21st of April 1884, and he obtained delivery of possession in January 1885. It was found by the Court of First Instance, and that finding was not questioned in the Lower Appellate Court, that the plaintiff's never obtained actual possession, that their allegation of an ouster in 1886 was untrue, and that since January 1885, the defendant has been in possession. The present suit was brought on the 27th of April 1897, that is a week before the expiry of twelve years from the date of the delivery of possession to the plaintiffs' father. The Court of First Instance held the claim to be barred by limitation, applying Article 138 of the second schedule of Act No. XV of 1877, and dismissed the suit. The Lower Appellate Court has set aside that decree. It was of opinion that the delivery of possession to the plaintiffs' father on the 4th of May 1885 gave a fresh start to the plaintiffs for the computation of limitation. It accordingly remanded the case to the Court of First Instance under Section 562 of the Code of Civil Procedure. From that order of remand the present appeal has been preferred, and the only question which we have to determine is whether the claim was brought within time. The question is not by any means free from difficulty. There can be no doubt that had the suit been brought against the plaintiffs' judgment-debtor, it would have been within time, as held in Mangli Prasad v. Debi Din (1897) I.L.R. 19 All. 499. But here we have the case of another person, namely, the purchaser of the rights of the judgment-debtor, who is in possession. Had the judgment-debtor been in possession, the delivery of formal possession, whether under Section 318 or 319 of the Code of Civil Procedure, would have amounted to an ouster of the judgment-debtor and an entry into possession by the purchaser. If subsequently to this delivery of possession the judgment-debtor remained in possession, his possession would amount to an ouster of the purchaser, and would be adverse possession from the date of the ouster; but in the case of a third person who had already purchased the property and obtained actual possession, delivery of possession, as against the judgment-debtor alone, cannot amount to an ouster of the person in possession. Therefore it cannot be said that such delivery of possession gave the subsequent auction purchaser a new cause of action, so as to make the possession of the person other than the debtor, who was already in possession, adverse possession from the date of delivery of possession to the auction purchaser. The possession of such person commenced on the date on which he obtained possession, and from that date must be regarded as adverse to the debtor or to the auction purchaser. As in the present case the defendant was in possession for more than twelve years anterior to the institution of the suit, the claim was barred by limitation, either under Article 138 or 144. Mr. Baldeo Ram on behalf of the respondents relied on the doctrine of lis pendens. There can be no doubt that the title of the plaintiffs is superior to that of the defendant, but the question is whether the plaintiffs have come into Court in time to assert and enforce that title. In the view which we have taken of the case, their claim was beyond time and was rightly dismissed by the Court of First Instance. The plaintiffs are themselves to blame for having lost through their own laches the title which they acquired under their auction purchase. We allow the appeal, set aside the order of the Lower Appellate Court, and dismiss the appeal to that Court with costs, The appellant, will get his costs of this appeal.


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