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Mangli Prasad Vs. Debi Din - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1897)ILR19All499
AppellantMangli Prasad
RespondentDebi Din
Excerpt:
execution of decrees - limitation--suit for possession of property purchased at auction sale in execution of a decree--effect of formal possession in saving limitation--civil procedure code, sections 318, 319. - - the learned subordinate judge has not clearly found whether possession was delivered in accordance with the provisions of that section......rai, whose successor in title is the plaintiff. it was alleged by the plaintiff that he obtained formal possession through the court on the 14th of july 1884; that he remained in possession for two years, and taht subsequently he was dispossessed by the defendant. it was on this allegation that he brought the present suit on the 29th of may 1895. the court of first instance found that, although ganesh rai had obtained formal possession through the court, he had never obtained actual possession of the property, and that ever since the auction sale the property has remained in the possession of the defendant. that court, however, gave the plaintiff a decree, being of opinion that the delivery of formal possession on the 14th of july 1884, gave to the plaintiff a fresh start for the.....
Judgment:

Banerji, J.

1. The only question which arises in this appeal is that of limitation. The plaintiff brought his suit for possession of a share of zamindari. That share originally belonged to the defendant, and was sold by auction as his property in execution of a decree on the 21st of August 1880. It was purchased by one Ganesh Rai, whose successor in title is the plaintiff. It was Alleged by the plaintiff that he obtained formal possession through the Court on the 14th of July 1884; that he remained in possession for two years, and taht subsequently he was dispossessed by the defendant. It was on this allegation that he brought the present suit on the 29th of May 1895. The Court of First Instance found that, although Ganesh Rai had obtained formal possession through the Court, he had never obtained actual possession of the property, and that ever since the auction sale the property has remained in the possession of the defendant. That Court, however, gave the plaintiff a decree, being of opinion that the delivery of formal possession on the 14th of July 1884, gave to the plaintiff a fresh start for the computation of limitation, and as to suit had been brought within twelve years from that date it was within time, The Lower Appellate Court has concurred with the Munsif in holding that the plaintiff never obtained actual possession. It, however, seems to have been of opinion that the fact of the delivery of formal possession through the Court was immaterial for the purposes of limitation, and it held that as the defendant had been in possession since the date of the auction sale and the period of his possession had exceeded twelve years, the plaintiffs' claim was barred by limitation. That Court accordingly dismissed the suit. It is against the decree of the Lower Appellate Court that the plaintiff has preferred this appeal, and it is contended on his behalf that limitation should be computed from the date on which formal possession was delivered to Ganesh Rai.

2. In my opinion this contention must prevail. If possession was delivered. to the auction purchaser through the Court in the manner required by Section 318 or, 319 of the Code of Civil Procedure, that delivery of possession gave to the auction purchaser, as against the judgment-debtor whose rights were purchased by him, a conclusive title, and must, as observed by the Calcutta High Court in the case of Juggobundhu Mukerjee v. Ram Chunder Bysack I.L.R. 5 Cal. 584, be deemed to be equivalent to actual possession. On the date of delivery of possession the auction purchaser must be held to have obtained actual possession as against the judgment-debtor, and it is only during the period following that date that the possession of the judgment-debtor, if he continued in possession, could be regarded as adverse. This view is supported by the Full Bench ruling of the Calcutta High Court in the case of Joqgobundhu Mitter v. Purnanund Gossami I.L.R. 16 Cal. 530, in which it was held that limitation should be computed in a suit for possession against the judgment-debtor from the date of delivery of formal possession. No ruling has been cited on behalf of the respondent to support the contrary view, except the ruling in Krishna Lall Dutt v. Radha Krishna Surkhel I.L.R. 10 Cal. 402, which was overruled by the subsequent Full Bench ruling to which I have referred. The decisions of the Bombay High Court in Lakshman v. Moru I.L.R. 16 Bom. 722, Harjivan v. Shivram I.L.R. 19 Bom. 620, and Namde v. Ramchandra Gomaji Marwadi I.L.R. 18 Bom. 37, relied upon by the learned vakil for the respondent have no bearing upon the present question, as the person in possession in those cases was not the judgment-debtor, but a third party who was unaffected by the proceedings relating to delivery of possession. I am of opinion that the lower Court has erred in holding that limitation should be computed from the date of the auction purchase by Ganesh Rai, the plaintiff's predecessor in title. As I. have said above, if possession was delivered to the auction purchaser in the mode prescribed by Section 318 or 319 of the Code of Civil Procedure, the date of such possession would give to the plaintiff a fresh start for the computation of limitation. In this case Section 319 was the section applicable. The learned Subordinate Judge has not clearly found whether possession was delivered in accordance with the provisions of that section. I therefore refer to him the following issue under Section 566 of the Code of Civil Procedure for a clear finding: 'Was possession delivered to Ganesh Rai in the manner prescribed by Section 319 of the Code of Civil Procedure, and if so, on what date?' The Court below will receive such evidence as may be tendered on the above question, and on the receipt of its finding ten days will be allowed for filing objections.


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