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Mt. Maharaji Vs. Bhagwati Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1936All85; 160Ind.Cas.1037
AppellantMt. Maharaji
RespondentBhagwati Prasad and ors.
Excerpt:
- - now in the present case the strong point in favour of the plaintiffs is that dwarka was only one of several reversioners and had brought a suit for possession of only his fractional share in the properties and not for the entire properties......brought a suit in 1925 for possession of these properties against ram kumar and his brothers; this suit was decreed and the decree was confirmed by the appellate court. dwarka prasad then applied for the execution of his decree and obtained formal possession over the properties in dispute on 23rd february 1927. after dwarka's death the present plaintiffs as his daughters and heirs have brought the suit for possession against the defendant on the ground that they have been in unlawful possession. the learned judge of this court has held that in view of the pronouncement of the full bench of this court in jang bahadur sing v. hanwant singh 1921 19 alj 469, the previous formal delivery of possession was of no avail and the suit is barred by section 47 civil p.c. it was held by their.....
Judgment:

1. This is a plaintiffs' appeal arising out of a suit for recovery of possession of a grove and certain fixed-rate tenancies. The Courts below decreed the claim but on appeal a learned Judge of this Court has dismissed the suit.

2. It appears that the properties in dispute originally belonged to one Upadhya and on his death it came into the possession of his widow Mt. Maktula who made a gift of it to the defendant Ram Kumar. On Mt. Maktula's death the plaintiff's father Dwarka Prasad brought a suit in 1925 for possession of these properties against Ram Kumar and his brothers; This suit was decreed and the decree was confirmed by the appellate Court. Dwarka Prasad then applied for the execution of his decree and obtained formal possession over the properties in dispute on 23rd February 1927. After Dwarka's death the present plaintiffs as his daughters and heirs have brought the suit for possession against the defendant on the ground that they have been in unlawful possession. The learned Judge of this Court has held that in view of the pronouncement of the Full Bench of this Court in Jang Bahadur Sing v. Hanwant Singh 1921 19 ALJ 469, the previous formal delivery of possession was of no avail and the suit is barred by Section 47 Civil P.C. It was held by their Lordships of the Privy Council in Badha Krishna Chanderji v. Ram Bahadur 1917 16 ALJ 33 that a symbolical delivery of possession is sufficient to interrupt adverse possession if the adverse possessors are parties to the proceedings in which it was given. No doubt the Full Bench in the case referred to above has drawn a distinction between possession obtained in respect of house property and other property. Now in the present case the strong point in favour of the plaintiffs is that Dwarka was only one of several reversioners and had brought a suit for possession of only his fractional share in the properties and not for the entire properties. He was therefore not entitled to get the defendants altogether dispossessed from the properties. Accordingly under Order 21, Rule 35(2) the decree being for joint possession of immovable property only, possession could be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming it by beat of drum or other customary mode. It was impossible for the execution Court to proceed under Sub-rule (1) of that rule. It follows that what should have been done was actually done in this case and therefore it must be held that possession was duly delivered to Dwarka on the previous occasion.

3. We accordingly allow this appeal and setting aside the decree of the learned Judge of this Court restore that of the lower appellate Court with costs in all the Courts.


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