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Lal Singh and ors. Vs. Sundar Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 69 of 1949
Judge
Reported inAIR1952P& H290
ActsLimitation Act, 1908 - Schedule - Articles 142 and 144
AppellantLal Singh and ors.
RespondentSundar Singh and ors.
Advocates: A.C. Hoshiarpuri, Adv.
DispositionAppeal allowed
Excerpt:
.....rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms..........on 30-11-1943 mortgaged the land in dispute. the mortgagee brought a suit for possession making sundar singh, a brother of bhagwan singh, a party to the suit and in execution of his decree for possession obtained symbolical possession through court. subsequently, it is alleged that sundar singh took forcible possession and on the 2-12-1946 the mortgagee brought the present suit for possession against sundar singh. this suit has been dismissed by both the courts below on the ground that sundar singh had been in adverse possession since 1934. an appeal has been brought to this court.2. mr. amar chand hoshiarpuri submits that sundar singh was a party to the proceedings and therefore even symbolical possession of the land in dispute would put an end to adverse possession, and in support.....
Judgment:

Kapur, J.

1. This is an appeal against an appellate decree of the Senior Subordinate Judge, dated 11-8-1948 confirming the decree of the trial Court dismissing the plaintiffs' suit. Bhagwan Singh on 30-11-1943 mortgaged the land in dispute. The mortgagee brought a suit for possession making Sundar Singh, a brother of Bhagwan Singh, a party to the suit and in execution of his decree for possession obtained symbolical possession through Court. Subsequently, it is alleged that Sundar Singh took forcible possession and on the 2-12-1946 the mortgagee brought the present suit for possession against Sundar Singh. This suit has been dismissed by both the Courts below on the ground that Sundar Singh had been in adverse possession since 1934. An appeal has been brought to this Court.

2. Mr. Amar Chand Hoshiarpuri submits that Sundar Singh was a party to the proceedings and therefore even symbolical possession of the land in dispute would put an end to adverse possession, and in support he has relied upon a Bench decision of the Lahore High Court 'MT. RAM KALI v. GOWARDHAN LAL', A. I. R. 1935 Lah 612, where it was held that symbolical possession is sufficient to dispossess a person who is a party to the execution proceedings. Reliance was there placed on a judgment of their Lordships of the Privy Council in 'RADHA KRISHNA v. RAM BAHADUR', 43 Ind Gas 268 (PC), where a decision of the Calcutta High Court in 'JUGGOBUNDHU v. RAMCHUNDER', 5 Cal 584 (FB) was approved of. In the Calcutta case, it has been held that symbolical possession is sufficient to dispossess a person who is a party to the execution proceedings, and their Lordships of the Privy Council remarked that they saw no reason to question the correctness of that decision which had been followed for many years. The samerule was again laid down by a learned Single Judge of the Lahore High Court in 'MOHAMMED SAADAT ALI v. PUNJAB NATIONAL BANK LTD. LAHORE', A. I. R. 1941 Lah 357. I am in respectful agreement with this rule and hold that the symbolical possession taken by the mortgagee put an end to the adverse possession and therefore the learned Judges of the Courts below were in error in holding that Sundar Singh was in adverse possession. It is unfortunate that Sundar Singh is not represented in this Court.

3. In the result, this appeal is allowed andthe suit of the plaintiffs decreed. There will beno order as to costs in this Court as there .'sno appearance for Sundar Singh. Costs in theother two Courts will be paid by Sundar Singh.


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