S. Acharya, J.
1. The plaintiff has preferred this appeal against the judgment of the Additional Subordinate Judge, 16-72Berhampur in Title Appeal No. ------ re-68-72versing the decision of the trial court in Title Suit No. 75 of 1970.
2. The plaintiff's case in short is as follows:--
One Brundaban Maharana in Title Suit No. 49 of 1953 got a decree for partition of his one-third share in the family properties which decree was confirmed by the High Court in Second Appeal No. 405 of 1964. After the final decree proceeding the said Brundaban transferred his decree in favour of the plaintiff in the present case by the registered sale deed (Ext. 14) dated 19-2-69. Thereafter in the execution proceeding (E. P. No. 131/ 69) the plaintiff in this case got possession cf his one-third share, as decreed in the suit, which are the suit lands in this case. The defendants thereafter at times interfered with the plaintiff's peaceful possession over the suit lands, and hence this suit for . permanent injunction against the defendants.
3. Defendants 7, 9, 10, 16, 24, 25, 28 and 30 did not appear in the suit and they were set ex parte.
The other defendants filed a joint written statement. The relevant and important facts alleged therein are as follows;--
'The plaintiff never got delivery of possession of the suit lands and that these defendants are in possession of the suit lands.'
They contested the plaintiffs title and alleged that the plaintiff never took possession of the suit lands in any execution proceeding. The other averments in the written statement need not be stated, as they are not relevant for the purpose of deciding the question raised in this appeal.
4. The relevant findings of the trial court are as follows:--
'Brundaban's one-third share in his family properties, which are the subject-matter of the present suit, was decreed in Title Suit No. 49 of 1953, and the said decision was confirmed in Second Appeal No. 405 of 1964; the plaintiff has purchased the properties which fell to Brundaban's share and thereafter he was interposed as the decree-holder in E. p. No. 131 of 1969, and so the present plaintiff has right, title and interest in the suit properties. It also finds that in the said execution proceeding there was actually delivery of possession of the suit lands in favour of the plaintiff and that the plaintiff continued to he in possession of the same and was in possession of the suit lands at the time of the institution of this suit. The defendants purchased the suit lands when the aforesaid title suit (T. S. No. 49/53) was pending, and so they cannot set up any right or title to the suit lands'.
On the above findings the trial court decreed the plaintiff's prayer for permanent injunction restraining the defendants from interfering with or entering upon the suit lands in the plaintiff's possession.
5. In the appellate court the plaintiff's title was conceded by the defendant-appellants. It was also conceded that as the purchases made by the defendants were hit by the doctrine of lis pendens, the defendants could not set up any right or title to the suit lands.
In the appellate court, the only question which was contested was that thedelivery of possession obtained by the plaintiff in E. P. No. 131 of 1969 was only nominal and symbolical in nature; the suit lands had not actually been delivered to him; he was never in possession of the suit lands, and so the plaintiff''s prayer for injunction could not be granted.
The appellate court found that the delivery of possession in favour of the plaintiff in the said execution proceeding (E. P. No, 131 of 1969) was merely a symbolical delivery of possession and that actual delivery of possession was not effected in the said proceeding. That court after arriving at the said finding did not proceed to give a firm and conclusive finding as to whether the plaintiff was or was not in actual possession of the suit lands on the date of the suit.
6. As the defendants admitted the plaintiff's title to the suit lands and the court below found that the plaintiff was delivered symbolical possession of the suit lands in the said execution proceeding, it should have, in view of the prayer for permanent injunction in the suit, proceeded to examine whether the plaintiff was actually in possession of the suit lands on the date of the institution of the suit. On the facts of this case if the court finds that the plaintiff in this case was in possession of the suit lands on the date of the suit, it cannot reject his prayer for permanent injunction in the suit. So it was incumbent on the court below to bestow proper consideration to that aspect of the matter; and the conclusion in this case, without a finding on the above important aspect of the matter, is patently and obviously an incorrect one.
7. Apart from the above defect in the impugned judgment, I also find that the court below did not appreciate the legal significance and effect of its finding of symbolical delivery of possession in favour of the plaintiff. In this case, undisputedly, the delivery of possession was prayed for in the execution case under Order 21, ,Rule 35, C.P.C. In the execution proceeding the judgment-debtors and/or their legal representatives were parties. In the Full Bench decision of this Court reported in AIR 1974 Ori 173 (Jayagopal v. Gulab Chand) it has been held that if the court simply proclaims that the decree-holder has been put in possession, such & delivery of possession will be binding on those who are parties to the proceeding or on those who claim through them; and that so far as delivery of possession against the judgment-debtor or any person in occupation on his behalf is concerned, there is no distinction between the two modes of delivery of possession under Order 21, Rule 35 and Rule 36, C.P.C. Their Lordships have further held that law is well settled that as against the judgment-debtor symbolic delivery of possession amounts to actual delivery of possession. In arriving at the said decision, their Lordships relied upon a Full Bench decision of the Calcutta High Court reported in ILR (1880) 5 Cal 584 (Juggobundhu v. Ram Chunder).
In the case before me, as stated above, the delivery of possession undisputedly was made under Order 21, Rule 35, C.P.C. and the trial court arrived at the finding that actual delivery of possession of the suit properties was, given to the plaintiff. The appellate court however holds that only symbolic delivery of possession was given in this case. Even if it was a case of symbolic delivery of possession, in accordance with the abovementioned decision of the Full Bench the said symbolic delivery amounts to actual delivery of possession of the suit properties in favour of the plaintiff. The court below has lost sight of this aspect of the matter.
8. As the court below has not given its finding on the most important issue in this case, namely whether the plaintiff was or was not in actual possession of the suit properties on the date of the institution of the suit, I deem it proper to remand this case to the court below for a fresh decision of the suit after giving its finding on the above issue.
9. While deciding the case afresh, the court may, if approached, consider whether it would be just and proper to grant necessary amendment of the prayer in the plaint as per the observations made in paragraph 11 of the decision reported in (1976) 42 Cut LT 940: (AIR 1977 Orissa 12) (Jemma v. Raghu).
10. On the above discussions and considerations, the judgment of the court below is set aside, and the case is remanded to the court below for fresh disposal of the suit in accordance with law and the observations made above. Costs will abide the final result.
11. The L.C.R. be sent back immediately.