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Khetra Praja Ratna and ors. Vs. Ipplilli Rajendra Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtOrissa High Court
Decided On
Case NumberA.H.O. No. 4 of 1971
Judge
Reported inAIR1974Ori48
ActsLimitation Act, 1908 - Schedule - Article 144
AppellantKhetra Praja Ratna and ors.
Respondentipplilli Rajendra Rao and ors.
Appellant AdvocateB.B. Sahoo and ;A.K. Tripathy, Advs.
Respondent AdvocateS.C. Roy, Adv.
DispositionAppeal dismissed
Cases Referred(Laxminarasamma v. Ranganayakemma). Berham J.
Excerpt:
.....statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - was perfectly justified in savins that the aforesaid..........in first appeal, our learned brother r. n. misra. j held that limitation ran from the date of symbolical delivery of possession, and not from the date of confirmation of the sale. the symbolical delivery of possession having taken place on 10-10-1951, and the suit having been filed on 10-10-1963, the suit was held to be within limitation. he accordingly allowed the appeal and decreed the plaintiff's suit.it is against his judgment that this a. h. o. has been filed.4. the sole question for determination is whether this suit for partition is barred by limitation.we agree with the learned single judge that air 1966 sc 470 (manikayala rao v. narasimhaswami) concludes the position of law that if at all article 144 applies, then limitation would run not from the date of the.....
Judgment:

G.K. Misra, C.J.

1. The plaintiff and the late Ippilli Rangava (hereinafter to be referred to as 'Rangava), were undivided brothers forming a Hindu Joint family. Rangava was the Karta. Defendant-1 borrowed some money from late Rangava, Plaintiff filed O. S. No. 6/42 in the Court of the Subordinate Judge, Berhampur, and obtained a money-decree. In execution of that decree he purchased the undivided one-fourth interest. by twosale-certificates, ext. 1 dated 20th February. 1951, and ext 2 dated 10th May, 1951, of the coparcenary properties belonging to defendant-1 and other coparceners who have been impleaded as defendants in this case. He took symbolical delivery of possession of the undivided interest purchased by him. The delivery receipts are exts. 3 and 4 dated 10-10-1951. He filed suit for partition on 10-10-1963. Though a large many defences were taken in the written statement, at the final hearing defendants contested the partition suit only on the ground of limitation. Their case is that the suit is barred by limitation under Article 144 of the old Limitation Act, and that the Limitation is to run from the date of confirmation of the sale when the plaintiff acquired title to the one-fourth undivided interest of defendant-1 in the coparcenary property.

2. The learned Subordinate Judge dismissed the suit upholding the defence contention. He relied upon AIR 1964 Ori-ssa, 43 (Smt. Laxminarasamma v. Ran-ganavakamma) in support of his conclusion.

3. In First appeal, our learned brother R. N. Misra. J held that limitation ran from the date of symbolical delivery of possession, and not from the date of confirmation of the sale. The symbolical delivery of possession having taken place on 10-10-1951, and the suit having been filed on 10-10-1963, the suit was held to be within limitation. He accordingly allowed the appeal and decreed the plaintiff's suit.

It is against his judgment that this A. H. O. has been filed.

4. The sole question for determination is whether this suit for partition is barred by limitation.

We agree with the learned Single Judge that AIR 1966 SC 470 (Manikayala Rao v. Narasimhaswami) concludes the position of law that if at all Article 144 applies, then limitation would run not from the date of the confirmation of the sale, but from the date of symbolical delivery of possession.

5. The propositions of law laid down in the aforesaid Supreme Court decision may be culled together. They are-

(i) The purchaser of a coparcener's undivided interest in a joint family property is not entitled to possession of what he has purchased. His only right is to sue for partition of the property and ask for allotment to him of that which on partition may be found to fall to the share of the coparcener whose share he has Purchased. His right to possession would date from the period when a specific allotment is made in his favour.

(ii) The other coparceners whose undivided interest has not been purchasedcan never be in adverse possession of the property purchased by the decree-holder. as possession could be adverse only when be was entitled to possession.

(iii) The aforesaid principles have, however, no application to an undivided share in a Property which is not coparcenary property.

(iv) by delivery of symbolical possession, adverse possession, if any of the other coparceners is interrupted. Time is to run from the date of delivery of symbolical possession, and not from the date of confirmation of the sale.

(v) Though the purchaser of an undivided share in a coparcenary property Is not entitled to any possession until a suit for Partition is worked out vet the order of delivery of symbolical possession Is not a nullity. Such an order is not one without jurisdiction. It is a case where the Judge effecting delivery of possession makes an order, wrong in law while acting within his jurisdiction. Whether the delivery of symbolical possession is legal or not in fact there is interruption of adverse possession. The question whether interruption was justifiable in law is irrelevant.

6. Applying the aforesaid tests to the facts of the present case, it is clear that the suit is to be decreed. Firstly, according to the majority judgment the plaintiff is not entitled to Possession of the undivided interest of the first defendant in the coparcenary property until the suit for partition is decreed, and he gets a specific property on partition. On such a view Article 144 has no application as the decree for partition is to be passed only by the judgment in this case and it is to be subsequently worked out when the plaintiff would set thp specific property in which he would have right to possession.

Alternatively, even if Article 144 applies limitation would run from the date of symbolical delivery of possession and the suit has been filed within 12 years thereof.

7. In AIR 1962 Orissa 147 (Laxminarasamma v. Ranganayakemma). Berham J. held that limitation would run from the date of confirmation of sale and not from the date of Symbolical delivery of possession. This judgment was confirmed in a Letters Patent Appeal by Narasimham C. J. and R. K. Das, J. in AIR 1964 Ori-ssa 43.

The view taken in those decisions is directly contrary to the aforesaid pronouncement of the Supreme Court

R.N. Misra, J. was perfectly justified In savins that the aforesaid two Orissa decisions can no longer be held as laying down good law.

8. On the aforesaid analysis, the appeal has no merit and is accordingly dismissed aS the appeal was filed despite the Supreme Court decision having been fully discussed by the learned single Judge it is dismissed with costs.

S.K. Bay, J.

9. I agree.


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