S.N. Modi, J
1. The first appeal by the defendants is directed against the judgment and decree of the Civil Judge, Ajmer in a suit for possession and mesne profits.
2. The dispute relates to a part of the house bearing old No. A.M.C 7/261 and new number 14/249 situated in Gujar Gawadi in Ajmer fully described in Paras 6 and 13 of the plaint as also in the site plan attached to the plaint portion marked red colour.
3. The suit out of which this appeal has arisen was instituted on 20th March, 1989 by plaintiff Rameshwar Lal and Norat Mal against eleven defendants. Plaintiffs and defendants 7 to 11 are related to one another. Their relationship would be clear from the following pedigree table:
Seth Basantiram (died on 19-6-62)
| | |
Rameshwarlal Norat Mal Mst. Ratan Bai married
Plaintiffl P. 2 to Laxminarain
| | | | |
Ramswaroop | | Mst, Radha Bai |
D. 7 Kishanswaroop | D.10 Mst. Kamlabai
D. 8 Prakash Chand D. 11
Similarly defendants 1 to 6 are related to one another. Their pedigree table is as under:
Badri Prasad (died in 1942)
Mst. Kesar Bai (died in 1962)
Motilal (died in 1930)
| | |
Trijugi Narain | Suraj Narain
Mst. Triveni Bai (D. 2)
married to Dinanath (D. 1)
| | | |
Laxminarain Rajendra Mst. Ram Bai Mst. Nirmla Bai
D. 3 D. 4 D. 5 D. 6
4. In order to decide the points arising for decision in this appeal it is necessary to set out in brief the facts of this case. Badri Prasad owned two houses adjoining to each other including the suit house. Both these houses were mortgaged on 13-8-44 for Rs. 25,000/- by Badri Prasad's grandsons Trijugi Narain and Suraj Narain with Seth Basantiram. The latter filed a suit for sale of the mortgaged property and obtained preliminary decree on 10-3-54 and final decree on 11-3 55 from the Court of Sub Judge, Ajmer. Sometimes in 1956 Badri Prasad's widow Mst. Kesar Bai instituted a suit claiming half share in the mortgaged property. On 31 7 61 the suit was decided and it was held that though Mst. Kesar Bai was entitled to half share in the mortgaged property she was bound by the mortgage and would get her share only after the mortgaged decree was satisfied and if something was left thereafter. It was also ordered that the mortgage amount be realised by first selling half share in the mortgaged property and if the decretal amount still remained due, the other half be sold. Accordidgly, half share in both the mortgaged houses was auctioned by the court of the Senior Civil Judge, Ajmer and the mortgagee Seth Basanti Ram himself purchased it on 15-7-61 for Rs. 10 500/- at the auction sale and obtained a sale certificate in respect thereof on 19-3-62. The other half was put to auction on 15 1-63 after the death of Seth Basanti Ram. This half portion was purchased by Seth Basanti Ram's son Norat Mal for Rs. 11,000/- and sale certificate thereof was granted in his favour on 28-5-63. Auction purchasers viz. the plaintiffs thereafter applied for possession of the two houses purchased by them and they were put in symbolic possession thereof on 5-4-63 and 30-7-63 as the tenants were reported to be in possession of the two houses. One of the occupants was Dinanath D 1 who possessed the disputed premises. The plaintiffs filed a suit against him for eviction treating him as a tenant. That suit was dismissed The plaintiffs went in appeal but that too was dismissed. Ultimately, the plaintiffs brought the present suit on the basis of their title and claimed possession and mesne pofits for the last three years preceding (he date of the suit at the rate of Rs. 40/- p.m.
5. Defendants 7 to 11 allowed the suit to proceed ex parte against them. Defendants 1 to 6 resisted the suit and traversed all material allegations made in the plaint. They pleaded ownership by adverse pos-session on the ground that they had been in exclusive continuous and peaceful possession for the last 25 to 28 years, It was pleaded that they were never the tenants of the plaintiffs and that since no application under Order 21 Rule 95 CPC was filed within time, the suit was not maintainable under the provisions of the Civil Procedure Code. The plea of limitation was also raised on the ground that the plaintiffs or their predecessors in title had not been in possession within 12 years preceding the date of the limitation of the suit. They denied that the plaintiffs were entitled to recover any mesne profits from them as also that the property could fetch a profit of Rs. 40/- p. m. by way of rent or otherwise. Some more pleas were raised which would appear from the following issues struck by the lower court:
1. Whether the defendants Nos. 7 to 11 have executed a Deed of Release in favour of the plaintiffs on 23-5-65 as alleged in para 3 of the plaint?
2. Whether the decrees referred to in para 7 of the plaint are not binding on the defendants for the reasons alleged in para 7 of the written statement?
3. Whether the suit property is capable of fetching rent or mesne profits at Rs. 40/- p. m.?
4. Whether the defendant No. 2 has a share in the suit property and whether her possession and that of the defendants Nos. 1, 3 and 4 is adverse to the plaintiffs and their predecessors-in-title?
5. Whether the suit is barred by time for the reasons stated (sic) paras 20 and 21 of the written statement?
6. Whether the suit is bad for mis-joinder of the defendants Nos. 5 & 6 and causes of action?
7. To what relief, are the plaintiffs entitled?
6. All the issues except issue No. 2 which related to binding nature of preliminary and final decrees in the mortgage suit were decided in favour of the plaintiffs. The leraned Counsel for the appellants has not challenged the findings on issues Nos. 1 and 6. He confined his arguments to issues Nos. 3, 4 and 5 only.
7. It may be stated at the very outset that the plaintiffs have succeeded in proving their title They were mortgagees of the premises in dispute which were subsequently purchased by them at the court sale held in execution of the mortgage decree obtained by them. The sale certificates Ex. 3 and Ex. 4 standing in the names of Basanti Ram and Norat Mal respectively leave no doubt about the title of the plaintiffs. It is further clear that the defendants have no title to the suit premises and their whole case was that they had prefected their title by adverse possession.
8. The learned Civil Judge dealing with the question of adverse possession relied upon the statements of the defendants, Triveni Bai D. W 1 and Laxmi Narain D. W. 2, both of whom admitted that they were permitted to live in the suit premises by Badridas, the grand father of Mst. Triveni Bai and keeping in mind the close relationship between Badri Das and Triveni Bai the learned Civil Judge held that the possession of the defendants was not adverse but permissive in nature. Learned Advocate for the appellants has taken me through the evidence on record but he was unable to point out anything which may be said to throw any doubt on the above finding of the learned Civil Judge. Where possession is proved to be in its origin of permissive character r will be presumed that it continued to be of the same character until ad unless something occurred of make it adverse. The burden, therefore, lay on the defendants to show how and when their possession became adverse. There is no evidence to show that the defendants asserted any housie title on the suit premises to the knowledge of the true owners at any time before the present suit or in any cast before the symbolical possession was delivered to the plaintiff. The defendants have thus failed to establish by clear and affirmative evidence the change in the character of their possession for a period of 12 years or more The symbolic possession was delivered to the plaintiffs within 12 years of the filing of the suit The suit is therefore within time under Article 65 of the Limitation Act. 1963.
9. Learned Advocate for the appellants has contended that the plaintiffs bad nowhere asserted that the defendants were in permissive possession. To hold 'he suit within limitation on the basis of permissive possession would mean to give effect to a case which the plaintiffs had not put forward He has further contended that on the case set up by the plaintiffs and on the facts appearing on the record, it is Article 64 of the Limitation Act, 1963, which is applicable and since the plaintiffs have failed to prove their possession within 12 years of the date of the suit, the suit is barred by time. The learned Advocate relied upon the decisions in Siddik Mohammed Shah v Mt. Saran and Ors. AIR 1930 PC 57 and Darya Singh Hari Singh and Anr. v. Kalma Nihala : AIR1961MP179 .
10. In my opinion, it is wrong to say that the suit has been held within time on the basis of permissive possession. It were the defendants who set up the plea of adverse possession but they fail d to prove the same. On the contrary, in their attempt to prove adverse possession, they proved by their own evidence permissive possession. The proof of permissive possession by their own evidence relieved the plaintiffs from proving that they were in possession within 11 years from the date of the suit, for, Badridas who had put the defendents into permissive possession was none else than the predecessor in title of the mortgagors from whom the plaintiffs derived their title The principle laid down by the Judicial Committee in Siddik (sic) ohammed Shah's case, namely that no amount of evidence can be looked into upon a plea which was never put forward has no application to the facts of the present case.
11. The next contention of the learned advocate that the suit is governed by Article 64 and not Article 66 of the Limitation Act,1963, is equally unsound. Article 64 runs as under:
Description of suit Period of Time from which
limitation period begins to
64. For possession of immo- twelve years The date of
vable property based on dispossession
previous possession and
not on title, when the
plaintiff while in possession
of the property has been
The term 'disposssession' applies when a person comes in and drives out another from possession. In the present case, the dispossession of the plaintiffs as envisaged by Article 64 was neither mentioned in the plaint nor established by evidence. Their lordships of the Supreme Court have laid down in Shivagonda Subraigonda Pattl and Ors. v. Rudragonda Patil and Anr. AIR 197(sic) SC 458 that Article 142 of the Indian Limitation Act, 1908 which corresponds with Article 64 of the Limitation Act, 1963, has no application where the suit is not agains the defendant on the ground that he has been dispossessed by the defendant. Article 64 in the circumstances is wholly inapplicable. The decision in Darya Singh Hari Singh and Anr. v. Kalma Nihala : AIR1961MP179 relied on by the leraned Counsel is distinguishable on fact and not applicable to the present case. In any case, even if Article 64 is made applicable, the suit is within time as the plaintiffs have succeeded in proving the constructive possession of their predecessor-in-title within 12 years before the date of the institution of the suit.
12. The next important point urged on behalf of the appellants and on which considerable stress was laid is that the proper and only remedy for the plaintiffs to get physical possession of the suit premises from the defendants was under Order 21 Rule 95, CPC and not by way of a separate suit. It is contended that the suit is barred under Section 47, CPC Developing the point, the leraned Counsel emphasised that in auction purchaser is entitled to symbolica-1 possession under Order 21 Rule 95 CPC where the property sold in is the occupancy of a tenant or other person entitled to occupy the same. The defendants being in possession of the suit premises as licencees of the judgment debtors, Order 21 Rule 95 CPC had no applicability and the plaintiffs auction purchasers in the present case were entitled to actual physical possession under Order 21 Rule 95, CPC. The leraned Counsel contends that the delivery of symbolical possession where actual possession ought to have been delivered is a nullity as symbolical possession is not equivalent to actual possession. According to him the proper remedy open to the plaintiffs was to apply under Order 21 Rule 95, CPC for delivery of actual possession before the executing court and the separate suit for the said purpose is barred under Section 47 CPC. He relied on Khetra Mohan Kundu and Ors. v. Jogendra Chandra Kundu AIR 1918 Cal 350, Narayan Rao Amrit Rao v. Chunni Lal Sita Ram AIR 1953 Nag 236, and Kalu Singh and Ors. v. Govind Singh and Ors. AIR 1969 Punj 468.
13. Before I deal with the above question it is necessary to point out that there was a conflict of judicial opinion on the point whether an application for delivery of possession under Order 21 Rule 95, CPC related to execution, discharge or satisfaction of the decree and fell within the ambit of Section 47, CPC. One view was that an application under Order 21 Rule 95, CPC did not involve a matter relating to execution, discharge or satisfaction of the decree, for, the decree is satisfied as soon as the sale is confirmed and a sale certificate has been issued. The remedy therefore for the auction purchaser for possession of the property purchased by him in court sale was to file a separate suit. This view was taken by the High Courts of Allahabad, Bombay, Patna, Lahore and Rangoon in Mst. Suraj Dei v. Mat. Gulab Dei : AIR1955All49 , Savla Ram Ganga Ram v. Vishwanath Anant and Ors. AIR 1945 Bom 366, Tribeni Prasad Singh and Ors. v. Ramesray Prasad Choudhary and Ors. AIR 1931 Pat 201, Firm Ram Singh Gopal Singh through Ram Singh and Anr. v. Firm Abdullah Habib Ullah through Gulam Nabi-ud-Din AIR 1944 Lah 402, and Ko Taik On v. N.S.A.R. AIR 1936 Rang 298. This High Court followed the above view in Mohanlal v. Bhagwan Chand and Ors. LR 16 (1966) Raj 77 and Dayashanker and Anr. v. Khubchand 187 WLN 369.
14 On the ether hand High Courts of Madrs, Calcutta, Kerala, Madhya Pradesh and Nagpur in M.S.M.M. Noyyappa Chetty and Ors. v. A.V.P.L. Chidambaram Chetty and Anr. AIR 1970 Mad 909, Kailash Chandra Turafdar v. Gopal Chandra Poddar AIR 1926 Cal 98, State of Iravancore-Cochin v. Lakshmi Ammal Meenakshi Ammal and Ors. : AIR1958Ker309 , Ram Ratan Bhondoo v. Lukkimal : AIR1959MP348 fend Anant Narayan v. Brij Mohan Chhotu Lal and Ors. AIR 1956 Nag 93 tock the view that the execution of a decreeholder's decree cannot be said to be satisfied until in one case, he has received the purchase money paid into court, and in the other case until he be put into possession of the property of the judgment-debtor which he has purchased and which represents money. This conflict is now set at rest by the authoritative pronouncement of the Supreme Court in Harnandrai Badridas v. Debidutt Bhagwati Prasad and Ors. AIR 1973 SC 242. In the case before the Supreme Court the question arose whether after an auction sale in execution of a decree a decree-holder auction purchaser can move the executing court for delivery of vacant possession of the immovable property sold to him or whether be has to file a separate suit. Answering the question their Lordships observed:
The question that has been raised by the appellant is one which has formed the subject matter of a long series of decisions which unfortunately have followed two divergent streams. There is on the one hand a Full Bench decision of the Calcutta High Court in Kailash Chandra Tarafdar v. Gopal Chandra Poddar ILR 53 Cal 781 : AIR 1926 Cal 798 FB followed by the Madras High Court while on the other hand there is the decision of the Lahore High Court in Ramsingh Gopalsingh v. Abdullah Habibullah ILR (1945) 26 Lah 252 : AIR 1944 Lah 402 FB which has been followed in various Full Bench decisions by the Allahabad High Court and also by the Patna High Court and the Bombay High Court....
The appellant relied on the Full Bench decision of the Lahore High Court. We have carefully gone through the various decisions cited before us and we find ourselves in agreement with the opinion of the Full Bench of the Calcutta High Court in Kailash Tarafdar's case ILR 53 Cal 781 : AIR 1926 Cal 798 FB. If a confirmation of the sale would finally terminate all questions as to execution of the decree it is difficult to appreciate why the Legislature would frame such rules as Rules 95 to 102 under Order XXI of the Code of Civil Procedure. We are in respectful agreement with G.K. Mitter, J, that the legislature must have thought that the duty of the executing court should not end with the confirmation of the sale and it is because the legislature thought that the auction purchaser should have the right of applying for possession under the provisions of Rule 95 and Rule 98 that proceedings for obtaining possession w re included in the catena of rules relating to the execution of the decree.
Section 47 in our view should be construed liberally. As far back in 1892, (1892) 10 Ind. App. 166 (PC) Me Privy Council spoke strongly in favour of putting a liberal construction on Section 244 of the Code of Civil Procedure of 1882 which corresponded to present Section 47 of the Code of Civil Procedure, 1908. The Privy Council reiterated this in Ganapathy v Krishoamachariar, 45 Ind. App. 54 : AIR 1917 PC 121. If a liberal construction be put upon Section 47 it is difficult to understand why a decree holder who has been a party to the decree will shed his character as such party merely upon purchasing the property at the execution sale After all, a decree-holder purchases the property in execution of his decree with the permission of the court. There is no reason why be should not retain his character of a party to the suit until the delivery of possession to him of the property purchased by him. Having regard to this consideration, if any question is raised by the judgment debtor at the time of the delivery of possession concerning the nature of the rights purchased and if the judgment-debtor offers any resistance to delivery of possession the question must be one which in our view relates to the execution, discharge and satisfaction of the decree and arises between the partita to the suit.
Speaking of the two conflicting views on this section the learned commentator of the 13th Edition of Sir Dinshaw Mulla's Code of C.P. makes the following observation:
The cases in which it has been held that an auction purchaser even if he is the decree-holder is not a party to the suit, require consideration in view of the ruling of Judicial Committee that such an auction purchaser is a party to the suit.The decision of the Judicial Committee which the learned commendator had in mind is that of Ganapathy v. Krishnamachariar 45 Ind. App. 54 : AIR 1917 PC 121.
It is important to remember that after the decision of the Privy Council in Ganapathy's case, 45 Ind. App. 54 : AIR 1917 PC 121 there has been an amendment in Section 47 as a result of which the purchaser at a sale in execution of a decree, whether he is the decree-holder or not, is unquestionably a party to the suit for the purpose of Section 47. Having regard to this, all questions arising between the auction-purchaser and the judgment-debtor must in our view be determined by the executing court and not by a separate suit.
15. In view of the above decision of the Supreme Court, the view taken by this Court in Dayashankar and Anr. v. Khubchand (13 supra) and Mohanlal v. Bhagwanchand and Ors. (12 supra) must be deemed to have been over-ruled. It is now well-settled that no separate suit lies for delivery of possession of the property purchased by the decree-holder auction purchaser at court sale and he must apply to the executing court under Rule 95 or Rule 96 Order 21 as the case may be, for delivery of possession of such property.
16. In the present case, the question involved is altogether different. The plaintiffs who are decree-holder purchasers had applied to the executing court and had admittedly obtained symbolical possession of the property purchased by them before instituting the present suit. They bon fide believed at the time of delivery of symbolical possession that the defendants were in occupation of the suit premises as tenants and they therefore rest contended with the symbolical possession. This is apparent from the suit for eviction on the basis of tenancy filed by them earlier to the present suit. It is only when their suit for eviction on the basis of tenancy failed that they brought the the present suit.
17 The question that calls for determination is whether a suit for actual physical possession is barred under Section 47, CPC where symbolical possession is taken by a decree holder auction purchaser in a case where he was entitled to actual possession under Order 21, Rule 95, CPC In Jagdish Nah Roy v. Nafar Cnandra Paramanik and Ors. AIR 1931 Cal 427 a decree for khas possession in respect of certain immovable property was passed in favour of the decreeholder. An execution was filed by the decreeholder with the prayer for khas possession. The peon of the executing court though directed to deliver khas possession to the decreebolder by removing any person bound by the decree but he delivered only symbolic possession by fixing up a bamboo accompanied with the beating of drum, The decree-holder give a receipt acknowledging that he had received symbolic possession of the property. The decree-holder did not raise any objection on the ground of his not having received khas possession in accordance with the terms of the writ issued by the executing court and the executing court recorded in the order sheet:
Possession delivered on the decretal land.
Later on about two years thereafter the decree-holder made a second application praying for khas possession. The judgment debtor objected that no such application lay on the ground that the decree for possession ha 1 been executed before & possession had been already taken by the decreeholder in the previous execution application. This objection was upheld by the executing court as well as by the first appellate court. The case ultimately went befere Renkin, G.J. and Mukerjee, J. in second appeal. Mukerjee, J., who delivered the judgment observed:
The case therefore seems to me to be one of those cases in which a decree-holder having armed himself with a decree in the first instance by obtaining symbolic possession only with some ulterior object of his own, and thereafter subsequently and as a second instalment asks for khas possession. The question is whether such a course is permissible under the law. I am of opinion that it is not.
The case came up for consideration by the Supreme Court in Shew BAX Mohata and Anr. v. Bangal Breweries Ltd. and Ors. : 1SCR680 . Their Lordships of the Supreme Court expressed their complete agreement with the observations of Mukerjee J. noted above. The case approved by their Lordships of the Supreme Court is no doubt a case of a decree-holder entitled to actual possession, under the decree, but in my opinion the same principle would be applicable to a cast of a decree-holder auction purchaser entitled to actual possession of the property purchased by him at a court sale If the decree is deemed to be fully satisfied on delivery of symbolical possession where the decreeholder is entitled to actual possession under the decree. I see no reason why the execution proceedings should not be deemed to have come to an end of the delivery of symbolic possession to the decree-holder auction purchaser who is entitled to actual possession. In my opinion, Order 21 Rule 35 & 95, CIC both stand en the same footing and in both the cases, the only remedy for obtaining actual possession is by way of a separate suit. I would however like to make it clear that a decreeholder or a decreeholder auction purchaser as the case may be, to whom the peon of the court erronecusly delivers symbolical possession can refuse to accept such possession and ask the executing court to deliver actual possession to which he is entitled to. But if as accepts symbolical possession and feels contended with it, be cannot subsequently ask the executing court for delivery of actual possession on the ground that he erroneously accepted symbolical possession. In the present case, if the conduct of the plaint fit had it dicated a repudiation of the symbolical possession with the peon had given them or atleast disclosing a desire on their part not to be content at the time with the kind of possession which the peon had given them, I should be prepared to bold that they ought to have gene to the executing court to have their remedy and this suit was not maintainable. But the conduct of the plaintiffs in the present case clearly reveals that they with all bona-fides fell contended with the delivery of symbolical possession at the time the peon delivered the same. In these circumstances, lam unable to agree with the leraned Counsel for the appellants that the present suit was not maintainable under Section 47, CPC. In support of my view, I place reliance on Radhalal v. Chabil Chand and Ors. AIR 1955 Nag 79. Kattil Raman Kunhi's sons Chathu and Ors. v. Vadakke Poduvath Devaki Arrma's daughter Janaki Amma : AIR1969Ker121 . The contrary view taken in the cases cited by the leraned Counsel for the appellants does not lay down good law in view of the Supreme Court decision noted above.
18. It is next contended that there is nothing to indicate on the record that symbolical possession was delivered to the plaintiffs of the house in which the suit premises are located. suffice it to say that neither any issue was framed on the point, nor was it urged in the court below nor a ground in this connection was taken up in the memo of appeal. I see no good ground to allow the appellants to urge this point for the first time before this Court in appeal.
19. Lastly, it is contended that the court below should not have made the appellants liable for the mesne profits. The quantum of mesne profits at the rate of Rs. 40/- per month has not been challenged before me. What is contended is that, because the defendants at no time previous to the institution of the present suit were in wrongful possession the plaintiffs cannot claim mesne profits. 'Mesne profits' of property are defined as profits which a person in wrongful possession of the property actually receives or might have with ordinary deligence received therefrom (see Section 2(12) CPC). It would appear from this definition that the mesne profits are in the nature of damages for being deprived of the benefit which the person in possession derives from the property. The object of awarding mesne profits is as was pointed out in Abdui Ghafur v. Rajaram (24) at pages 255 to compensate the person entitled to be in possession for his having been kept out of possession and that deprived of the profits of the property. It follows therefore that the person who is entitled to actual possession can rugby claim mesne profits. In the present case the plaintiff' became entitled to actual possession on the dates when the sales in their favour were confirmed or in any case when the symbolical possession was delivered to them. The dates on which confirmation of the sales took place are not available on the record but the sales must have been confirmed some time before the sale certificates were issued. The sale certificates Ex. 3 and Ex. 4 were issued on 19-3-62 or as 28-5-63. I he symbolical possession was delivered on 5-4-63 and 30-7-63. The plaintiffs have been granted mesne profits from 20-3-66 and I find no fault in it.
20. The appeal must fail and is dismissed with costs to the plaintiff-respondents.