1. The suit house originally belonged to the 1st defendant's father Narayana Aiyangar and his brother, the 2nd defendant, Alagasinga Aiyangar. A partition was effected between the brothers in 1881, but not by metes and bounds. Narayana's share was sold to one Dikshitar on 1st May, 1905. Alagasinga's share was sold to the plaintiff on 10th March, 1906. On 30th March, 1906, Narayana's share was delivered to Dikshitar by symbolical delivery. On 25th March, 1907, Dikshitar sold his share to Alagasinga's son, the 3rd defendant. On 3rd July, 1917, the plaintiff attached Alagasinga's share in execution of a decree. On 4th March, 1918, Narayana put in a claim petition. On 10th June, 1918, the claim was allowed and on 19th August, 1918, the present suit was brought under Order 21, Rule 63. Mean while, on 3rd April, 1918, Alagasinga had brought a suit to recover possession of his share, a suit which has been dismissed.
2. The Lower Courts have found that there has been adverse possession by Narayana's son, the 1st defendant, for twelve years before suit, and now in this second appeal two questions arise : (1) whether the attachment by the plaintiff on 3rd July, 1917, puts an end to the adverse possession of 1st defendant, namely, whether the possession of 1st defendant from that date till the suit was filed continued to be adverse and uninterrupted ; (2) whether the symbolical delivery of 30th March, 1906, put an end to the 1st defendant's adverse possession or not. The decree in which symbolical delivery was given was against Narayana alone and 1st defendant, his son, was not a party to it.
3. The first point has been expressly decided in Seetharami Reddi v. Venku Reddi (1901) 11 MLJ 344. In that case the defendants had been in possession for less than twelve years at the time of attachment, but continued in possession until the suit was brought more than twelve years after their possession commenced. It was held in this Court that the attachment could not have the effect of arresting the running of time against defendants. If that ruling is adopted, it is clear that the plaintiff's suit is barred by limitation. But it is urged for the appellant that the decision in Paridiyan Pillai v. Vellayappa Rowther : AIR1918Mad572 is authority to the contrary, and this contention appears to have some force, for, in that case, the facts were very similar and it was decided against the parties claiming adverse possession. Reference is made in the judgment to Seetharami Reddi v. Venku Reddi (1901) 11 MLJ 344 and it is not dissented from nor criticised in any way, apparently because it was held that no question of interruption of possession or of its continuance despite the attachment arose. Although, therefore, the decision appears to be in direct contravention of the decision in Seetharami Reddi v. Venku Reddi (1901) 11 MLJ 344 it is based on other grounds, grounds which are not too clear, because in the judgment the facts do not appear to be correctly set out owing to the apparent transposition of the words 'plaintiff' and 'defendant' in two places. Reliance is also placed on Vasudeo Atmaram Joshi v. Eknath Balkrishna Thite ILR (1910) B 79 and that no doubt is an authority directly in favour of the appellant, for it was there held that in such a suit, namely, under Section 283 of the old Civil Procedure Code, it must be proved ' that on the date of attachment which was subsequently raised by order of the Court on the application of the 1st respondent, their judgment-debtors had a subsisting right to the property.' For this proposition Harishankar Jebhai v. Naran Karsan ILR (1893) B 260 is relied on, but a reference to the latter shows that in that case the date of the order on the claim petition was treated as the date on which the adverse possession ceased. If that date is taken in the present case, namely, 10th June, 1918, the plaintiff's suit is barred by limitation. This latter proposition is supported by the authority of the Calcutta High Court in Phul Kumari v. Ghanshyam Misra ILR (1907) C 202, where it was held that the order of the Court was the basis of the subsequent suit. We have not been referred to any other authority than Vasudeo Atmaram Joshi v. Eknath Balkrishna Thite ILR (1910) B 79, which is directly in point, and inasmuch as that case purports to be based on a prior decision which was not to the same effect, there is no argument in the judgment which goes to show that the decision in Seetharami Reddi v. Venku Reddi (1901) 11 MLJ 344 is incorrect.
4. It is suggested that we should refer this point for the decision of a Full Bench, but I do not think it is necessary in view of the following circumstances. In the first place, the decision in Seetharami Reddi v. Venku Reddi (1901) 11 MLJ 344 has never been dissented from, although it was given so long ago as 1901, and on the merits I respectfully agree with the conclusion. Attachment of immoveable property is effected by an order prohibiting the judgment-debtor from transferring or charging the property in any way and all persons from taking any benefit from such transfer or charge. (Order 21, Rule 54, Civil Procedure Code.) It has always been held that an attachment does not confer any interest in the property, and it is difficult to see how a mere attachment can disturb the continuance of physical possession of the holder at the time. There are many authorities for holding that adverse possession is not disturbed except by actual ouster. For instance in Pankaj Mohan v. Bipin (1922) 38 C LJ 220 where the Court ordered the property to be put in possession of a Receiver, but possession was not actually given, it was held that possession was not disturbed. Again in Singaravelu Mudaliar v. Chokkalinga Mudaliar ILR (1922) M 525 it was held that a declaration that the party in possession had no title has not the effect of interrupting the continuity of his adverse possession. In Subbaiya Pandaram v. Mahammad Mustapha Marcayar ILR (1923) M 751 it was held that a decree which was not executed did not disturb possession. In view of these decisions it is difficult to hold that a mere attachment, under which possession is in no way disturbed, can affect the continuity of adverse possession. Appellant relies on two cases reported in Rajah of Venkatagiri v. Isakapalli Subbiah ILR (1902) M 410 and Sarat Chandra v. Bibhabati Debi (1921) 34 C LJ 602 but in both these cases the attachment was not one made under the Civil Procedure Code, but was made by a Magistrate in proceedings under Chap. XII of the Criminal Procedure Code and must be distinguished on the ground that an attachment under that Chapter implies an actual taking posses-sion of the property by the Magistrate or by some one under his orders. I am therefore of the opinion that the decision in Seetharami Reddi v. Venku Reddi (1901) 11 MLJ 344 is correct and see no necessity for referring the case to a Full Bench as there is no actual conflict of opinion in this Court. In this view it is unnecessary to decide the second point raised which was not raised in the Lower Courts. The appeal is accordingly dismissed with costs.
5. Two points have been raised in this appeal : (1) Is symbolical possession, i.e., delivery by the Court of immoveable property in the execution of a decree sufficient to interrupt adverse possession and (2) Does an attachment of immoveable property serve to interrupt adverse possession
6. The plaintiff who brings the suit under Order 21, Rule 63, after the disposal of a claim petition in favour of defendant's father pleads that since the 10th of March, 1906, the plaintiff`s father and himself had been in possession of a moiety of the immoveable property in question and he brought the suit for a declaration that the other moiety belongs to the 3rd defendant or to defendants 2 to 4 and that it was liable to be attached in execution of the decree in O.S. No. 154 of 1912. The 1st defendant, who is the only contesting defendant, pleaded that he and his father had been in adverse possession to the plaintiff and the other defendants of the whole of the property in question for a period of over 25 years. The dates material to the points set out are: On the 8th of June, 1881, there was a partition between the 1st defendant's father and his coparcener Alagasinga of the property in question. On the 1st of May, 1905, there was a Court auction sale of the 1st defendant's share to one Dikshitar. On the 30th of March, 1906, there was symbolical delivery of 1st defendant's share to Dikshitar. On the 25th of March, 1907, there was a private sale by Dikshitar to the son of Alagasinga who was the 1st defendant's co-parcener above referred to and previously on the 10th of March, 1906, there was a private sale of Alagasinga's share to the plaintiff's father. On the 3rd of July, 1917, there was an attachment by the plaintiff of Alagasinga's share. On the 4th of March, 1918, there was a claim petition by the 1st defendant's father who was in ppssession. On the 3rd of April, 1918, the plaint in S.A. No. 109 was presented by Alagasinga. On the 10th of June, 1918, the claim of the 1st defendant was allowed and the attachment was raised ; and on the 19th of August, 1918, the plaint in the present second appeal was presented by the plaintiff.
7. It will be observed that both the plaints are more than 12 years from the date of the symbolical delivery of the plaintiff's share to Dikshitar but the attachment by the plaintiff on the 3rd of July, 1917, is within 12 years.
8. Now as to the first point reliance is placed by the appellant on the cases reported in Kocherlakota Venkatakrishna Rao v. Vadreuv Venkappa ILR (1903) M 262 and Thakur Sri Radhakrishna v. Ram Bahadur (1917) 34 MLJ 97. In the first case it was held that the effect of symbolical delivery arises in the case of the judgment-debtor himself absolute, but where the judgment-debtor is not the party in possession, adversely to a third party (as here), delivery made in the absence of that third party and not personally to him, cannot by itself affect his possession, nor amount to an ouster or dispossession of him and his possession will continue uninterrupted; but if he was present and the delivery takes place adversely to the claim of such third party, it may be equally operative as against him. It was contended that the present case is the case of a stranger resisting the suit, not of a stranger trying to recover as defendant No. I was not a party to the suit. In Thakur Sri Radhakrishna v. Ram Bahadur (1917) 34 MLJ 97 it was held that symbolical possession will avail to dispossess defendants sufficiently because they were parties to the proceedings in which it was ordered and given, Juggobandhu Mukerji v. Ram Chandra Bysack ILR (1880) C 584 is affirmed.
9. The case in Jobeda Khatun v. Tulsi (1922) 36 C LJ 472 was also relied on. The learned Judges there say that the decisions show that symbolical possession does not in any way affect the possession of or give start to a fresh period of limitation against persons who are not parties to the suit or execution proceedings. The learned Judges refer to a Privy Council case reported in Thakur Sri Radhakrishna v. Ram Bahadur (1917) 34 MLJ 97 where their Lordships say that 'symbolical possession is sufficient to interrupt adverse possession when the adverse possessor is a party to the execution proceedings in which the symbolical possession is given; as regards persons not so parties, only actual dispossession can interrupt their adverse possession.' This, in my opinion, is sufficient to dispose of the point adversely to the appellant, if we can assume that defendant No. 1 was no party to the execution proceedings.
10. A greater part, however, of the argument before us has been centred on the second point, viz., as to the effect of attachment as interrupting adverse possession, there being no doubt, as already pointed out, that on the date of the suit the period requisite to establish adverse possession had elapsed. It is said that there are two cases neither of them reported in the authorised reports on each side of the line.
11. For the appellant it is frankly admitted that the case reported in Seetharami Reddi v. Venku Reddi (1901) 11 MLJ 344 is against his position. There the learned Judges distinctly and in so many words lay down that attachment could not have the effect of arresting adverse possession by strangers holding adversely when the properties were attached by the plaintiff as belonging to certain of the defendants in the case against whom the strangers were holding. It is said that the case in Pandiyan Pillai v. Vellayappa Rowther : AIR1918Mad572 is diametrically opposed to this, and the headnote certainly gives some colour to this view. The learned Judges however dispose of the case in another manner. The decision in Seetharami Reddi v. Venku Reddi (1901) 11 MLJ 344 was brought to their notice, but they merely remark : 'An old decision of this Court, not reported in the authorised reports, namely, Seetharami Reddi v. Venku Reddi (1901) 11 MLJ 344 supports Mr. Devadoss.' They preferred to dispose of the case on a different ground, namely, 'that a decision in a regular suit instituted to contest the order in the claim proceedings places the parties in status quo ante either by vacating the order made in the said execution proceedings or by confirming it. The result is the plaintiff is directed not to interpose obstacles in carrying out the further steps necessary to reap the fruits of the attachment. Both the parties are bound by that pronouncement, consequently no question of interruption of possession or of its continuance despite the attachment arises. So far from intending to overrule or disapprove of the decision in Seetharami Reddi v. Venku Reddi (1901) 11 MLJ 344 it appears to me from this last sentence quoted from the judgment that the learned Judges held that the question did not arise. In my opinion, therefore, as far as authorities have been brought to our notice, the case in Seetharami Reddi v. Venku Reddi (1901) 11 MLJ 344 stands uncontradicted. It as a case that has stood for over 23 years and it seems to me that it would be improper for us to decline to follow it unless there was some very cogent reason for doing so.
12. Now it has been constantly held that an adverse possession is a question of fact. It has been argued for the appellant that the nature of an attachment is such that on an attachment taking place the Court receives the properties into its custody and what this means may be seen by the form of attachment given in Appendix E, Form 24 of the Code of Civil Procedure. It only directs abstinence from transferring or charging the property by gift, sale or otherwise during the continuance of the attachment. It certainly does not physically interrupt the possession of persons already on the property and in my view it cannot be said even theoretically to do so. If it were allowed to interrupt any possession one can see that a wide door is open to fraud and oppression.
13. The case in Vasudeo Atmaram Joshi v. Eknath Balkrishna Thite ILR (1910) B 79 supports the appellant. That was a suit to establish the appellant's rights to sell the property in dispute as that of the judgment-debtors and it was held that the appellant must prove that on the date of the attachment, which was subsequently raised, the judgment-debtor had a subsisting right to the property ; and that the suit must therefore be tried as if it were a suit for possession by the judgment-debtor. The learned Judges add : 'So regarded, it is not the case here of the judgment-debtor having been dispossessed or having discontinued possession while in possession of the property.' The learned Judges there specifically rely on Harishankar Jebhai v. Naran Karsan ILR (1893) B 260 where the critical date is taken to be that of the order of 11th August, 1908, which directed the removal of the attachment. That date corresponds to 10th June, 1918, in the present case and is inclusive of the present point ; and that date is more than 12 years from 30th March, 1906. An old case in Malraja alias Krishnama Rajah v. Narayanaswami Rajah (1869) 4 M HCR 281 lays down that the effect of an attachment does not change in any way the possession of the property so as to bring the case within the 12 years' limitation.
14. A further point was taken, namely, that the suit as allowed by Order 21, Rule 63, although called a suit, was in fact nothing but a continuation of the claim proceedings ; and the appellant relied on Krishnappa Chetti v. Abdul Khader Sahib ILR (1913) M 535. In that case the Privy Council decision in Phul Kumari v. Ghanshyam Misra ILR (1907) C 202 was referred to and in the opinion of Sadasiva Aiyar, J., such suits have not any of the essentials of original actions 'but merely forms of appeal allowed by the Civil Procedure Code to be brought in the guise of original suits.' This judgment of their Lordships has however been commented upon by a Full Bench of this Court in Ramaswami Chettiar v. Mallappa Reddiar ILR (1920) M 760 where Wallis, C.J. said : 'The Privy Council no doubt referred in one place to the suit under Section 283 to establish the right of the unsuccessful party to the claim petition as an ' action of appeal' and to the plaint in such a suit as ' a plaint for review of a summary decision, ' but this language must be read with reference to the question before them.' Oldfield, J. in the same case points out that all their Lordships were concerned with was the question of Court-fee, in connection with which the character of the relief asked for by the plaintiff would be decisive.
15. For these reasons I am of opinion that attachment does not interrupt adverse possession or rather possession which is ripening into adverse possession. This second point also fails and that we must give effect to the decision in Seetharami Reddi v. Venku Reddi (1901) 11 MLJ 344 above quoted. I agree with my learned brother that there being, in my opinion, good and sufficient authority against the proposition that adverse possession can be interrupted by attachment, there is no necessity for reference to a Full Bench. Consequently the second appeal must be dismissed with costs.