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Lal Rajendra Kishore Singh Vs. Bhagwan Singh and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in39Ind.Cas.745
AppellantLal Rajendra Kishore Singh
RespondentBhagwan Singh and ors.
Cases ReferredMangli Prasad v. Debi Din
Excerpt:
civil procedure code (act v of 1908), order xxi, rules 95, 96 - civil procedure code (act xiv of 1882), section 319--possession, formal and actual--auction-purchaser, suits by, for possession--limitation, commencement of. - - i am quite satisfied (as i think the trial court and the lower appellate court were) that the property was of that nature which did not permit of actual physical possession being given to the auction-purchaser. i am clearly of opinion that time began to run from this formal possession......purchased by the plaintiff's father. on the 20th september 1900 the plaintiff's father obtained formal possession under section 319 of the code of civil procedure of 1882, which corresponds with order xxi, rule 96, of the present code. the present suit was instituted on the 18th of september 1912. the defendant pleaded limitation. both the courts below overruled this plea, but on second appeal to this court a learned judge overruled both the courts below and dismissed the plaintiff's suit on the ground of limitation. it is admitted that if time began to run against the plaintiff from the 20th of september 1900, the suit is then within time. on the other hand, if time began to run from the date at which the sale became absolute, the suit is barred by limitation. i am quite satisfied.....
Judgment:

P.C. Richards, C.J.

1. This appeal arises out of a suit in which the plaintiff claimed joint possession of a one-third share in certain muafi land. This share originally belonged to one Balwant, who made a mortgage of it. A decree was obtained on foot of this mortgage on the 18th of April 1899. The decree was made absolute on the 20th of November 1899, and in execution of that decree the property was put up for sale on the 20th of March 1900 and purchased by the plaintiff's father. On the 20th September 1900 the plaintiff's father obtained formal possession under Section 319 of the Code of Civil Procedure of 1882, which corresponds with Order XXI, Rule 96, of the present Code. The present suit was instituted on the 18th of September 1912. The defendant pleaded limitation. Both the Courts below overruled this plea, but on second appeal to this Court a learned Judge overruled both the Courts below and dismissed the plaintiff's suit on the ground of limitation. It is admitted that if time began to run against the plaintiff from the 20th of September 1900, the suit is then within time. On the other hand, if time began to run from the date at which the sale became absolute, the suit is barred by limitation. I am quite satisfied (as I think the trial Court and the lower Appellate Court were) that the property was of that nature which did not permit of actual physical possession being given to the auction-purchaser. There may have been tenants but there were certainly other persons entitled to occupy the land.' The auction-purchaser had only purchased an undivided third. I am clearly of opinion that time began to run from this formal possession. Order XXI, Rule 95, provides for actual possession being given where the nature of the property permits actual possession to be given. It seems to me that if actual possession was given under Rule 95 and the judgment-debtor immediately afterwards re-took possession, it would be impossible to contend that time did not begin to run against the auction-purchaser from the time when the defendant re-took possession. Order XXI, Rule 96, provides for the formal delivery of possession where the nature of the property does not permit of actual possession being given, but it is clear to me that the legal effect of formal possession must be the same as actual possession in the rule immediately preceding. This view has been taken consistenlly by this Court in a number of cases commencing with the cases of Mangli Prasad v. Debi Din 19 A. 499 ; A.W.N. (1897) 127 ; 9 Ind. Dec. (N.S.) 322 Narain Das v. Lalta Prasad 21 A. 269 ; A.W.N. (1899) 56 ; 9 Ind. Dec. (N.S.) 880, Jagan Nath v. Milap Chand 28 A. 722 ; A.W.N. (1906) 213 ; 3 A.L.J. 504 and Rahim Bakhsh v. Muhammad Hafiz 10 Ind. Cas. 319. I entirely agree with the view taken in these cases and think that they ought to be followed. I would allow the appeal and restore the decree of the Court below.

Banerji, J.

2. I am of the same opinion. I expressed my views on the point in the case of Mangli Prasad v. Debi Din 19 A. 499 ; A.W.N. (1897) 127 ; 9 Ind. Dec. (N.S.) 322. In the present case Section 319 of the Code of Civil Procedure of 1882 applied, and, therefore, the formal possession which was delivered was in compliance with law. The nature of the property was such that actual possession could not be delivered in respect of it. Therefore, from the date of the delivery of formal possession a fresh start for the computation of limitation was obtained by the auction-purchaser. I agree in the order proposed.

3. By the Court.--We allow the appeal, set aside the decree of the learned Judge of this Court and restore the decree of the lower Appellate Court with costs of both hearings in this Court, including fees on the higher scale.


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