R.N. Misra, J.
1. The plaintiff is in appeal against the judgment and decree of the learned Subordinate Judge of Berharnpur, dismissing his suit for partition and allotment of one-fourth share of the disputed properties.
2. The plaintiff claimed that his elder brother Ipilly Rangayya was the manager of the Joint family and had advanced a loan to defendant No. 1. On the death of his brother Rangayya, the entire joint family property came to be managed by the Plaintiff. He instituted a suit against defendant No. 1 and obtained a decree from the Court of the Sub-ordinate Judge, Berhampur. For satisfaction of that decree the undivided one-fourth interest of the defendant No. 1 in the disputed properties was purchased by him under two sale certificates. The plaintiff took symbolical delivery of possession of the disputed properties on 10th October 1951. Thereafter, he instituted the present suit on 10th October1963 for partition.
3. Of the six defendants five excepting the defendant No. 3 filed a joint written statement. They contended that the decree in the earlier suit was not binding on them and the suit was barred by limitation.
4. The learned Trial Judge framed five issues. The parties dispensed with oral evidence and the only question that was canvassed was the issue relating to limitation of the claim.
5. As it appears there were two separate Court auction sales and these sales were confirmed oh the 20th February. 1951 and 10th May, 1951 respectively. Symbolical delivery of possession was taken on 10th October 1951 as already indicated. The learned trial judge relying upon a decision of this Court in AIR 1964 Orissa 43 (Laxminarasamma v. Ranganayakamma) came to hold that Article 144 of the Limitation Act of 1908 applied to the facts of this case and the period of limitation was to commence from the date of confirmation of sale. As the suit was instituted on 10th October 1963, that is, more than 12 years of the date of confirmation of the two sales, the learned Trial Judge came to conclude that the suit was barred by limitation. He accordingly negatived relief to the plaintiff. The Plaintiff has come in appeal against this decree.
6. Two decisions of this Court have taken the same view. The first one is the case reported in AIR 1962 Orissa 147 (Lakshminarasamma v. Ranganayakamma) and the second one is the case that has been referred to by the learned trial Judge, namely AIR 1964 Orissa 43. A number of earlier decisions of different Courts were taken into account in this Court and the ultimate conclusion was reached that limitation was to run from the date of confirmation of sale. One of the earlier decisions which took the same view is the case reported in AIR 1961 Andh Pra 279 (M. Narasimhaswami v. M. C. Venkata Sivayya). This decision of the Andhra Pradesh High Court was carried in appeal before the Supreme Court and their Lordships in their reported decision in AIR 1966 SC 470 (Manikayala Rao v. Narasimha Swamy) reversed the judgment. Sarkar J. fas he then was) and Raghubar Dayal J. delivered one judgment and Ramaswami J. delivered his judgment separately, but the conclusion that was reached was one and the same. A number of cases were referred to and it was stated in paragraph 7.
'Having expressed our difficulties on the matter let us proceed on the assumption, without deciding it that Article 144 is applicable. Even so, it seems to us that the suit is not barred. It is not in dispute that in order that the suit may be barred under the Article the defendant must have been in uninterrupted possession for twelve years before the date of the suit. Now, in the present case that was not so. By the delivery of symbolical possession under the order of November 6, 1939, the adverse possession of defendants was interrupted. Time has, therefore, to commence to run from that date and so considered the suit having been brought within twelve years of that date, it was not barred under that Article.'
Even when the delivery proceedings were said to be a nullity their Lordships stated:
'It was however said that the order for delivery of possession made in the present case was a nullity because Sivavya and his transferee who had purchased an undivided share in coparcenary property were not entitled to any possession at all. We agree that the order cannot be supported in law but we do not see that it was for this reason a nullity. It is not a case where the order was without jurisdiction. It was a case where the learned Judge making the order had, while acting within his jurisdiction, gone wrong in law. Such an order has full effect if it is not set aside, as it was not in this case.'
It was further stated by their Lordships.
'If the person against whom adverse possession is set up shows that he had, in fact, obtained possession whether lawfully or not that would interrupt any possession held adversely against him. The question is whether there was, in fact, an interruption of the adverse possession and not whether that interruption was justifiable in law. Under the order for delivery of symbolical possession, whether it was legal or otherwise, Prakasalingam did obtain possession and this was an interruption of the adverse possession by the respondents. In respect of the present suit time under Article 144 must, therefore, commence from that interruption.'
The same view had also been reiterated by Ramaswami. J. in his separate judgment. Following this decision of their Lordships of the Supreme Court, a single Judge of the Raiasthan High Court in AIR 1968 Rai 1 (Sachida Nand v. Mangi Lal) came to hold that the period of limitation was to commence only from the date of such symbolic possession and not from the date of confirmation of sale. The learned single Judge had occasion to refer to a number of cases including the earlier decision of this Court in AIR 1962 Orissa 147 where the contrary view had been adopted and came to hold that current of thought must be taken to be no more good law.
7. The decisions of this Court have not been specifically referred to by their Lordships of the Supreme Court, but the legal position seems to have been set at rest by the aforesaid decision in AIR 1966 SC 470. The two decisions of this Court, namely AIR 1962 Orissa 147 and AIR 1964 Orissa 43 so far as they held that limitation in similar circumstances would commence to run from the date of confirmation of sale, must be taken to be no more good law. The trial Court judgment is thus contrary to law as laid down by their Lordships of the Supreme Court. It must be held that the suit having been instituted within a period of 12 years provided for under Article 144 of the Limitation Act of 1908 was within limitation. The learned Trial Judge took a wrong view of the law and had dismissed the suit.
8. All other aspects were found in favour of the plaintiff. The defendants had not raised a contest on any other aspect in the Trial Court. Therefore, the parties had agreed to dispense with oral evidence. Mr. Tripathy contended before me that as the parties had been misled then in view of the two reported decisions of this Court and the judicial view has been subsequently changed, it is proper to remand this matter to the trial Court for a fresh determination upon evidence. I do not think in the facts of this casethere would be any force in such a request.
9. Once it is found that the suit is not barred by limitation, there is no impediment in decreeing the plaintiff's suit. The learned trial Judge had stated.
'The parties have dispensed with the oral evidence on either side. Excepting the question of limitation all other facts alleged in the plaint are almost admitted by the contesting defendants.'
Mr. Tripathy has not shown that this observation of the learned Trial Judge is erroneous. I would accordingly reverse the decree of the learned Trial Judge, allow the appeal and decree the plaintiff's suit. So far as costs are concerned I think it appropriate to call upon both parties to bear their own costs throughout.