R.N. Misra, J.
1. Legal representatives of the plaintiff are in appeal against the affirming judgment and decree of the learned Additional District Judge of Dhenkanal in a suit for title, confirmation of possession and permanent injunction.
2. O. S. No. 40 of 1954 had been filed on 11-3-1954 for recovery of possession from the plaintiff on the allegation that the defendant had been forcibly dispossessed on 16-12-1953 and the suit was decreed for recovery of possession on 7-7-1955. Execution of the decree had been levied and the last execution case being No. 12 of 1966 for recovery of possession was pending when on 19-12-1966, the plaintiff filed the present action being Title Suit No. 75 of 1966 alleging in para 12 of the plaint :--
'That as the defendants are not to dispossess the plaintiff from the suit land by levying execution of the decree in O.S. No. 40 of 1954, vide Execution Case No. 12 of 1966, pending in the court of the Munsif, Dhenkanal, and since in the Settlement of 1965 the disputed land has been wrongly recorded in the names of the defendants, the plaintiff institutes the suit for declaration of his title, confirmation of his possession and a permanent injunction against the defendants restraining them not to interfere with the plaintiff's possession of the suit land at any time in future.'
On behalf of the plaintiff, it was contended that a mere decree did not arrest the running of adverse possession and as plaintiff has remained in possession from 16-12-1953 before Execution Case No. 12 of 1966 was instituted on 15-4-1966, he had already remained for more than twelve years by way of adverse possession and had acquired title to the property. In support of this contention reliance was placed in a single Judge decision in the case of Damodar Jew Thakur v. Hema Narayan Misra, AIR 1969 Orissa, 54. When both the courts below negatived that plea, in Second Appeal the same contention has been reiterated. When the Second Appeal was placed for hearing, our learned brother Das, J. directed it to be placed before a Division Bench in consideration of the fact that the legal position was somewhat conflicting and that is how the appeal has now been placed before us.
3. Mr. Mohanty for the appellants seeks support from the following observations of the learned single Judge In Damodar Jew Thakur's case (AIR 1969 Orissa 54 at p. 55) :--
'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 possession over since then till the date of the suit which was instituted on 21-12-1956. 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.'
After extracting a paragraph from Lord Buckmaster's judgment in the case of Subbaiya Pandaram v. Md. Mustafa, AIR 1923 PC 175, the learned Judge continued to say:--
'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.
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 .....'
Mr. Mohanty also relies upon the ratio in the cases of Dagadabai v. Sakharam, AIR 1948 Bom 149; Maidi Bhikashmiah v. Venugopalrao, AIR 1959 Andh Pra 146; Soni Lalji Jetha (deceased) through his L. Rs. v. Soni Kalidas Devchand, AIR 1967 SC 978 and Moti v. Roshan AIR 1971 Him Pra 5, We may now proceed to examine the correctness of the submission of Mr. Mohanty with reference to the ratio indicated in the aforesaid cases.
4. It is appropriate that we proceed chronologically and first deal with the decision of the Privy Council (AIR 1923 PC 175). The facts of the case in nutshell are the following. Certain properties were dedicated to charitable purposes in terms of two deeds dated 21st Feb. 1890 and 13th Dec. 1894. The settler died in 1895 leaving behind his widow and a son by name Arunachellam. Arunachellam became involved in debt and one of his creditors sued him, obtained a decree in execution of which the endowments of the charity were attached. Thereupon the grandson of the settler represented by the settler's widow raised an objection to the attachment, but the same was dismissed on the ground that during the lifetime of Arunachellam he had no locus standi. In the same year, a suit was instituted by the minor acting through the grand-mother seeking to establish the validity of both the deeds and while that suit was pending, the property was brought to sale under the decree against Arunachellam. The sale was confirmed on 11th Aug. 1898 and delivery of possession was made to the purchaser who remained in uninterrupted possession thereof. On 31st of Dec. 1900, the second suit was decreed giving a declaration that the properties formed part of the trust estate. On 9th Nov. 1911, Arunachellam's son on attaining majority applied to the District Court for leave to remove Arunachellam from the office of! trustee and on obtaining his removal instituted a suit on 23rd July, 1913 for recovery of the property. The claim in the suit was defended on the ground of bar of limitation. The question for consideration was posted in the following terms:--
'There is no doubt that whatever period of limitation be assigned, the full period had run before these proceedings were instituted, unless it could be alleged that by virtue of the proceedings to which reference has been made, there was some interruption in the period.
Now the real argument in favour of the appellant was that in the presence of the purchaser it was declared that the trust had been validly created and that the property was, in fact, trust property, and it is suggested that this effects res judicata as against the respondent and prevents them from now asserting that the property is their own.'
The aforesaid contention was met by their Lordships by observing:--
'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.'
It is clear that the decree of 31st December, 1900, was a merely declaratory one and the Judicial Committee, therefore, rightly indicated that such a declaration did not disturb or affect the quality of possession and the opponents' possession continued to be adverse. The facts of the present case are very different. There was a decree for recovery of possession and it has been put to execution. Defendant-decree-holder has claimed for recovery of possession. There is nothing in the Privy Council decision which would support the plaintiff's contention of acquisition of title here by adverse possession.
5. The next case upon which reliance has been placed is from the Bombay High Court (AIR 1948 Bom 149). Plaintiff had mortgaged the land and the mortgagee had brought a suit in 1923 against the plaintiff as also defendants 2 and 3 who were in possession of the property. He obtained a decree on his mortgage and it had been provided in the decree that he should have possession for two years and that possession thereafter should go to the plaintiff. He attempted to execute the decree but failed to obtain possession. It was contended before the court that adverse possession set up by the defendants was interrupted by the decree of 1931. The Court observed:--
'...It may be that cases involving symbolical possession are on a somewhat different footing from cases where no possession at all is given, but whether a decree for possession does or does not interrupt adverse possession must surely be a pure question of fact. 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 the nature 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, .....'
In the Bombay case, therefore, though there was a decree for possession, possession had not been obtained and adverse possession for the statutory period brought about loss of title of the true owner.
6. The same question came up for consideration before a Division Bench of the Andhra Pradesh High Court in the case of Maidi Bhikashmiah v. Venugopalrao AIR 1959 Andh Pra 146. The Court observed (at p. 148):--
'The counsel of the appellants has thereafter argued that because of the Tahsildar's and the Subedar's judgments the appellants' right to recover possession of the properties was in suspended animation and that when counting 12 years the periods during which these orders were operative, should be deducted under Section 14 of the Limitation Act. There are authorities binding on me that mere decree of possession by civil courts do not interrupt running of adverse possession..
In other words, if passing a declaratory decree does not constitute a change of animus of the person in possession giving a decree for possession should not be interpreted otherwise.....'
7. Reliance was next placed on a decision of the Supreme Court reported in AIR 1967 SC 978. The Court was called upon to decide whether a decree for specific performance of contract affected the adverse nature of possession of the defendants. The question that arose before the Supreme Court was very different. Reliance, however, was placed on the decision for the purpose of saying that the ratio in the Privy Council decision as also in the Bombay decision, referred to already, had been quoted with approval. Beyond that aspect, nothing has been said by the Supreme Court which would support the proposition canvassed before us by Mr. Mohanty.
8. The next case on which reliance has been placed is of the Himachal Pradesh High Court in the case of Moti v. Roshan, AIR 1971 Him Pra 5. Beg, C.J., as the learned Judge then was, referred to some decisions of the Bombay High Court and quoted with approval the observations of Addison, J, in the case of Jaimni Das v. Phulla Khan, AIR 1930 Lah, 472, where it was said (at p. & of AIR Him Pra):--
'A decree not accompanied by actual effective assertion of rights and taking possession of these rights does not help to stop adverse possession running.'
It is clear from the facts of the Orissa case (AIR 1969 Orissa 54) that though a decree for recovery of possession had been obtained, it was not followed up by execution of the same.
9. There are series of authorities supporting the view that once a suit is filed, running of adverse possession is arrested. A Bench of the Madras High Court in the case of Fatima Bibi v. A. Hajee Muhammad Usman Sahib, AIR 1943 Mad 425, dealt with the effect of the institution of a suit on adverse possession Leach C.J., spoke for the Court thus:--
'It would be a negation of the right given by Order 21, Rule 63 to hold that when the suit has been filed in time, the person wrongly in possession of the property can get a title by adverse possession after the Institution of the suit. In our opinion, the institution of the suit arrests the running of time in favour of defendant-1.....'
A Division Bench of the Allahabad High Court in the case of Nand Lal v. Sunder Lal AIR 1944 All 17, while dealing with the effect of institution of a suit on adverse possession observed:--
'.....It would therefore appear that if the judgment-debtor never had anything more than an immature title which was assailed and therefore, as it were, came under suspension before it ever did mature, then auction purchaser can be in no better position than his judgment-debtor was at the date of the decree or the date of the actual dispossession. The effect of the institution of a suit within limitation is to destroy previously existing adverse possession with effect from the date of institution or at any rate to suspend it from that date until the suit is finally decided one way or the other.....'
A Division Bench of the Calcutta High Court in the case of Achhiman Bibi v. Abdur Rahim Naskar, AIR 1958 Cal 437, examined the same question and pointed out (at p. 440):--
'We hold that there is considerable difference between a salt for mere declaration and a suit for declaration coupled with a prayer for possession. It is true that by a decree for declaration without more the position of person in wrongful occupation will not be disturbed, even if the decree be passed in his presence. If such person continues in possession even after the declaratory decree, he may, nevertheless, acquire prescriptive title. The consequences are different if the suit for declaration is coupled with a claim for possession, as was done in the present case and such suit is decreed.'
A Bench of the Madhya Pradesh High Court in the case of Mst. Sultan Jehan Begum v. Gul Mohd. AIR 1973 Madh Pra 72, went into the question at length and in our opinion summarized the legal position very aptly by saying (at P. 74):--
'In our view the law is clearly this:--
(1) When a person entitled to possession does not bring a suit against the person in adverse possession within the time prescribed by law his right to possession is extinguished. From this it only follows that if the former brings a suit against the latter within the prescribed period of limitation his right will not be extinguished.
(2) If a decree for possession is passed in that suit in his favour he will be entitled to possession Irrespective of the time spent in the suit and the execution and other proceedings.
(3) The very institution of the suit arrests the period of adverse possession of the defendant and when a decree for possession is passed against the defendant the plaintiffs right to be put in possession relates back to the date of the suit.
(4) Section 28 of the Limitation Act (now Section 27) merely declares when the right of the person out of possession is extinguished. It is not correct to say that the section confers title on the person who has been in adverse possession for a certain period. There is no law which provides for 'conferral of title', as such on a person who has been in adverse possession for whatever length of time.
(5) When it is said that the person in adverse possession 'has perfected his title,' it only means this. Since the person who had the right of possession but allowed his right to be extinguished by his inaction, he cannot obtain the possession from the person in adverse possession, and, as its necessary corollary the person who is in adverse possession will be entitled to hold his possession against the other not in possession, on the well settled rule of law that possession of one person cannot be disturbed by any person except one who has a better title.'
A learned single Judge of the Madras High Court in the case of N.E. Vedammal v. S.R. Krishnamoorthy Iyer, AIR 1976 Mad 283 dealt with the same question and quoted with approval the principle indicated by a Division Bench of the Allahabad High Court in the case of Ragho Prasad v. Pratap Narain Agarwal, 1969 All LJ 975, where it was stated (at p. 285 of AIR):--
'The suit in the Instant case was not a suit for declaration, it was a suit for partition and possession. In a suit such as this, ft is not possible to hold that if the defendant has been in adverse possession before the institution of the suit such adverse possession continues to run even after the institution of the suit so as to prescribe a good title in favour of the defendant. Were that so it could result in the frustration of the suit because while it was pending and before it terminated in a decree the defendant could have acquired title by adverse possession. Such a result is wholly unwarranted in law.'
Ismail, J. in the Madras decision further stated (at pp. 285, 286 of AIR):--
'Let us test the proposition of the learned counsel for the appellant from a practical point of view. Suppose a person is in wrongful possession of the property and after he has been in such wrongful possession for three years, the reel owner files a suit for declaration of title and recovery of possession. Assume that for some reason or other the suit was pending for nearly 9 years before the Court and after 12 years from the commencement of the possession of the defendant (person in wrongful possession) the suit was decreed, Can it be held that since the decree itself was passed 12 years after the adverse possession commenced the defendant had perfected title to the suit property by adverse possession and therefore acquired a good title and the decree-holder cannot thereafter execute the decree and recover possession of the property? That merely emphasises the fact that when a suit for declaration of title and recovery of possession is instituted before the adverse possession has culminated in the acquisition of prescriptive title the time during which the suit is pending cannot be taken advantage of by the person in wrongful possession and tacked on to the period during which he was in possession before the institution of the suit for the purpose of claiming prescriptive title.'
10. In view of what has been stated in these decisions, it must follow that on institution of the suit for recovery of possession, running of adverse possession is arrested and the same position- continues until the decree for recovery continues to be executable. From the facts of the Orissa decision (AIR 1969 Orissa 54) it appears that the decree for possession had not been put to execution. The distinction was lost sight of and reliance had been placed on a Bench decision of the Patna High Court in the case of Krishna Prasad Singh v. Adyanath Ghatak, AIR 1944 Pat 77, where the decree had not been executed. We are inclined to hold that the legal position as indicated by the Bench decision of the Calcutta High Court in AIR 1958 Cal 437 is correct and the learned single Judge in Damodar Jew Thakur's case (AIR 1969 Ori 54) went wrong in dissenting from it. The Orissa decision, therefore, does not correctly state the law. On the other hand, we are inclined to agree with the conclusions indicated in the Division Bench decision of the Madhya Pradesh High Court in Sultan Jehan Begum's case (AIR 1973 Madh Pra 72).
11. The net result, therefore, is that in the instant case where the defendant had obtained a decree for possession and had levied execution of that decree, plaintiff was not entitled to acquire any prescriptive title by tacking the period of possession prior to the suit and subsequent to it. The running of adverse possession got suspended with the institution of the suit in 1954 and as long as the decree remained executable, plaintiff was not entitled to maintain that his possession being for more than twelve years continuously could fructify into prescriptive title.
12. Plaintiff's suit had, therefore, been rightly dismissed by the courts below and such dismissal must be affirmed. Defendants shall be entitled to costs throughout.
P.K. Mohanti, J.
13. I agree.