G.K. Misra, J.
1. The disputed properties belong to the deity Sri Damodar Jew Thakur. The deity is the plaintiff. The suit was brought through Barada Kanta Misra one of the marfatdars. The trustee appointed by the Endowment Commissioner has been substituted in this Second Appeal in place of the marfatdar representing the deity. Defendants 1 and 3 to 19 are the marfatdars of the plaintiff deity who has also been put as defendant No. 2.
Defendant No. 1 was the landlord of the disputed lands and thus had dual roles. He as landlord filed a rent suit in 1935-36 against Barada Kanta Misra and some of the defendants-marfatdars and obtained an ex parte decree which was executed in Execution case No. 264 of 1936-37. He purchased the disputed lands on 29-7-36. After the sale the father of Barada Kanta Misra and other cosharer marfatdars filed an application to set aside the decree for rent on the ground of fraud. During the pendency of that proceeding there was a compromise. The decree for rent was set aside and another decree was passed to the effect that defendant No. 1 would be entitled to realise Rs. 150/- by certain date and in case the judgment-debtors did not satisfy the decree defendant No. 1 would be entitled to execute the decree,
The case of defendant No. 1 is that he did not execute the decree, but took delivery of possession amicably. The marfatdars filed Original Suit No. 400 of 1941 against defendant No. 1 and others for setting aside the rent sale. It was however dismissed for default. The plaintiff thereafter again tiled Original Suit No. 303 of 1943 alleging that he was a minor at the time of the institution of O.S. No. 400 of 1941. O.S. No. 303 of 1943 was decreed on 22-12-44. It was thereby declared that defendant No. 1 did not have any right, title and interest in the disputed properties by virtue of the rent sale, and that the plaintiff had joint title with him and was entitled to recover joint possession. Barada Kanta Misra and other marfatdars alleged that defendant No. 1 voluntarily put them in joint possession and they did not accordingly take delivery of possession through court.
The present suit is filed on 21-12-56 on the allegation that defendant No. 1 transferred the disputed properties to defendants 21 to 49 by 8 permanent registered leases Exts. A to A(7) on 19-4-44 and 20-4-1944. It is to be noted at this stage that the total disputed lands consist of 46.98 acres. Out of these, 2.20 acres are tenanted lands. 22 acres are covered by the permanent pattas Exts. A to A(7) in favour of defendants 21 to 49. The balance 22.78 acres are said to be in possession of defendant No. 1 and his wife defendant No. 20 in whose favour a permanent lease has also been effected by defendant No. 1. Defendants 1 and 20 did not contest. Defendants 21 to 49, the transferees contested the suit mainly on the basis of adverse possession. Both the courts below have held that the suit has been barred by adverse possession and accordingly dismissed the plaintiffs' suit. The plaintiff deity has filed this Second Appeal.
2. Mr. Rath contends that the suit is not barred by adverse possession, and the learned courts below misconceived the legal position.
3. To correctly appreciate the position it would be necessary to distinguish the various types of land involved in the suit. As has already been stated 2.20 acres are in possession of the tenants under defendant No. 1. The tenants are not necessary parties. The suit has proceeded ex parte against defendants 1 and 20. The plaintiff's positive case is that after the decree in O.S. No. 303 of 1943 he was put into joint possession. As the plaintiff's title and possession are not controverted in respect of the tenanted land, he is entitled to declaration of joint title and symbolical possession with the other marfatdars.
4. With regard to 22.78 acres, the plaintiff's positive case is that he took joint possession amicably after the decree in O.S. No. 303 of 1943. Defendants 1 and 20 did not appear in the suit and challenge the plaintiff's case. The plaintiff is therefore entitled to a decree. There would be declaration of joint title in favour of the plaintiff and he would be entitled to joint possession.
5. The real difficulty arises with regard to 22 acres which is the subject matter of alienation by permanent Pattas in favour of defendants 21 to 49. These Pattas were granted in April 1944. The concurrent findings of the courts below are that these transferees are in possestion ever since then till the date of the suit which was instituted on 21-12-56. On this finding the plaintiff's suit is prima facie barred by adverse possession as the transferees are in possession for more than 12 years in their own right, title and interest openly.
Mr. Rath however contends that the decree passed on 22-12-44 in O.S. No. 303 of 1943 whereby the plaintiff's joint title was declared and he was entitled to recovery of joint possession interrupts the running of adverse possession. If the decree acts as a break then clearly the suit is within limitation. The suit was filed on 21-12-56. This necessitates an examination of the legal position whethera decree for declaration of title and recovery of possession without possession being taken either in execution or amicably would interrupt the running of adverse possession.
6. There can be no controversy that a mere declaratory decree does not interrupt the running of adverse possession. The matter is concluded by Subbaiya Pandaram v. Md. Mustafa, AIR 1923 PC 175. Lord Buckmaster observed thus:
'Their Lordships do not think that the decree had that effect. At the moment when it was passed the possession of the purchaser was adverse, and the declaration that the property had been properly made subject to a trust disposition, and therefore ought not to have been seized, did not disturb or affect the quality of his possession; it merely emphasised the fact that it was adverse. No further step was taken in consequence of that declaration until the present proceedings were instituted, when it was too late.'
There is clear indication in the aforesaid passage that after a declaratory decree is obtained unless appropriate steps are taken for recovery of possession, the declaratory decree by itself would not prevent the running of time and the adverse possession prior to the suit can be tacked to the adverse possession continuing thereafter,
7. There is conflict of thought as to whether the aforesaid principle would apply to a decree for declaration of title and recovery of possession not followed by delivery of possession either symbolical or actual. Most of the authoritative pronouncements are in favour of the view that a mere decree for declaration of title and recovery of possession would not interrupt the running of time. It stands on the same footing as a mere declaratory decree. If, however, the decree for recovery of possession is followed by actual seizure of the property either in execution or by amicable arrangement or compromise, then a break in the running of time comes into operation from the date of the seizure. Some of the important decisions in support of this view are Singaravelu Mudaliar v. Chokkalinga Mudaliar, AIR 1923 Mad 88(2); Bhogilal v. Ratilal, AIR 1939 Bom 261; Krishna Prasad v. Adyanath, AIR 1944 Pat 77; Dagadabai v. Sakharam, AIR 1948 Bom 149; Padmanabha v. Velayudhan, AIR 1957 Trav Co 32 (FB) and M. Bhikashmiah v. Venugopalarao, AIR 1959 Andh Pra 146. The best exposition of the law in this regard is to be found in AIR 1948 Bom 149. Their Lordships observed thus:
'If the decree does not in fact result in the defendant giving up possession of the property or having possession of the property taken from him, we do not see how it can be said that it has interrupted possession; nor can it in law affect thenature of the possession, so far as we can see, unless it does so in fact; and whether it does so in fact would probably depend upon the attitude with which it was received by the defendant ......... But in fact it was a decree in ejectment, and for ourselves we cannot say why the fact of ejectment being ordered should make any difference. Surely what counts is not the order for ejectment but the actual ejectment or cessation of possession.'
Their Lordships further observed that they were not referred to any reasoned decision that the decree for possession even when followed by an unsuccessful execution must be deemed as a matter oi law to have the effect of either interrupting possession or altering its character. Their Lordships went further to say that they did not think that there was ever likely to be any such decision.
The opposite view has been taken in Gagumal Metharam v. Allabhux, AIR 1932 Sind 35 and Achhiman Bibi v. Abdur Rahim, AIR 1958 Cal 437. None of these two decisions have given any cogent reasons as to why a distinction is to be made between a mere declaratory decree and a decree for recovery of possession not followed by any effective step either in execution or otherwise to get back possession. Even the Calcutta case does not refer to the Bombay series of decisions and the Patna and the Travan-core Cochin Cases. In AIR 1959 Andh Pra 146 the Calcutta view was dissented from & if I say so with respect rightly. I am clearly of opinion that a mere decree for declaration of title and recovery of possession without any step being taken to get back possession stands on the same footing as a mere declaratory decree for title and does not interrupt adverse possession.
8. In this case the decree dated 22-12-44 was not followed by execution for recovery of joint possession and the plaintiff's case that he got amicable possession has bean found against concurrently by the courts below. The suit is accordingly barred by adverse possession in respect of these 22 acres.
9. On the aforesaid analysis the plaintiff's suit is decreed in respect of the tenanted land of 2,20 acres and 28.78 acres in which the plaintiff got joint possession amicably. The suit is dismissed with regard to the balance of 22 acres in respect of which permanent Pattas were granted.
10. In the result, the judgments of thecourts below are set aside in part and thesecond appeal is allowed in part as indicated above. In the circumstances parties to hear their own costs throughout.