M. Madhavan Nair, J.
1. Second appeal by defendants 9 and 12. The suit property belonged to Ouseph. who left behind him two sons, Ouseph (junior) and the 12th defendant. Defendants 1 to 11 are the legal representatives of Ouseph (junior).
2. For a decree obtained against the 12th defendant the plaintiff's mother purchased in court auction the 12th defendant's share in the property, and on 25-12-1120 the plaintiff had symbolical delivery of possession thereof by court. She instituted this suit on 20-12-1132 for partition of her moiely in the property thus obtained. The 9th defendant remained ex park at the trial; and the I2th defendant contended the soil to for barred by limitation. The Munsif overruled the contention and decreed the suit and that has been affirmed by the Subordinate Judge. Defen danls 9 and 12 have come up in second appeal
3. It must be said at the outset that in the share of the 12th defendant sold to the plaintiff's late mother, the 9th defendant is not shown to have any interest. The decree appealed against is only a preliminary decree in the partition suit, declaring the rnoiety of the 12th defendant to have vested in the plaintiff and directing separation of the same The 9th defendant cannot be aggrieved by the decree and is therefore incompetent to file this second appeal.
4. II is not disputed that the 12th defendant's moiety has been sold to the plaintiff by Court. That sale was confirmed on 19-11-1117. The contention is that the plaintiff's right to partition of the properly arose on 16-11-1117, wherefore the suit instituted beyond 12 years of that date is barred by limitation. The contention obviously ignores the symbolical delivery of possession given by Court on 25-12-1120. In Shripat Raoji Maralhi v. Dattatraya, AIR 1957 Nag 24 where faels were almost identical, Hidayatullah C. J. and Kotval J. held:
'It is quite clear that if there had been no grant of symbolical possession the suit as filed would have been hit by Article 138, unless it was saved by Section 16 of the Act. The question is whether by taking out execution of his decree and by an application under Order 21, Rule 95, Civil P. C.. or in oilier words by obtaining symbolical possession, limitation for the suit was saved.
Allernatively. it is a matter for consideration whether in view of the grant of symbolical possession the present suit can be said to fall within Article 144. After the decision of their Lordships of the Privy Council in Radha Krishna v Ram Bahadur, AIR 1917 PC 197 (2) there can be no manner of doubt that symbolical possession is also possession within the meaning of the Indian Limitation Act......
In our opinion the Court which holds an auction sale is not incompetent to put the purchaser into possession of what he has got. Order 21 does not make, any distinction between sales of whole properties or shares in them, and the grant of joint possession is warranted not only by the practice of Courts but also by the existence of numerous authorities in support thereof. Indeed, their Lordships of the Privy Council, when they placed symbolical possession on a par with ordinary and actual possession, were showing lhat joint possession, which is normally granted to purchasers of a fraction is good possession for the purposes of the Indian Limitation Act.
In our opinion. Dnyanoba having obtained possession through Ihe agency of the Court under his auction sale, was entitled to bring a suit under Article 141. or, alternatively, under Article 142, if he was either excluded from possession of was ousted from it. The suit was filed on the opening day of the Court after vacation, and Section 4. Limitation Act applies. The suit is therefore within time 1 am in respectful agreement with the above reasoning. The dictum in AIR 1917 PC 197 (2) is clear that as regard parties to the proceedings symbolical delivery of possession is as effective in law as actual delivery of possession The Judicial Committee observed:
'In Ihe High Court and before their Lordships it was further argued lhat symbolical possession would not avail against the defendants, but lhat only actual dispossession would interrupt their adverse possession. The High Court, following a decision of the Full Bench in Juggobundhu Mukerji v. Ram Chumder Bysar.lt, ILR 5 Cal 584 held that symbolical possession availed to dispossess the defendants sufficiently, because they were parties to the proceedings in which il was ordered and given This decision is one of long standing, and has been followed lor mam years. Their Lordships see no reason lo question it, . .
The position is explained lucidly in Rajcndra v Chintamani. AIR 1939 Pal 151 Counsel for appellants relied largely on V. C. Thani Chettiar v. Dakshinamurlhy Mudaliar, (S) AIR 1955 Mad 288. That ruling has gone to the extreme and held ' . it is useful to examine the position and the rights of persons like the plaintiff who purchase a share of some of the coparceners of a Hindu family. ... . He does not even acquire any intercsl in the property sold' I have already expressed my dissent to that ruling (Vide Rtima-krishna Tyer v. Suppayya Udayar, 1964 Ker LT 981 at p. 989' (AIR 1965 Ker 77 at p 82).
5. Counsel contended Hud in the case of courl-sale of undivided share a symbolical delivery of that share is incompetent Order XXI. Rule 95 C. P. C provides:
'Where the immovable property sold is inthe occupancy of the judgment-debtor or ofsome person on his behalf. . . and a certificate in respect thereof has been granted underRule 94, Ihc Court shall, on the application ofthe purchaser, order delivery !o be made byputting .such purchaser in possession ofthe properly '
II makes no exception in the case of a court-s:de of unseparated share of a cosharer It r:mnot be said that a delivery of possession made by She Court was incompetent The 12th defendant was and is admittedly in possession of some of the items of the plain! schedule pro perlios and the other items are in the possession of his cosharcrs The legal presumption of a cosharer's possession being on behalf of :dl cosharors applies well in [he circumstances; and Order XXI. Rule 95 in terms is then pertinent lo [he case. The ouster or discontinuance of possession of the plaintiff can only be after dale of delivery of possession to her by Court. The Courls below were therefore riff lit in count-ins tRe period of limitation from the date of the symbolical deliverv and finding Hie suit lo he in time.
6. The second appeal fails and is dismissed with costs.