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Krishnabhupati Devu Vs. Ramamurti Pantulu and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Judge
Reported in(1895)ILR18Mad405
AppellantKrishnabhupati Devu
RespondentRamamurti Pantulu and anr.
Cases ReferredNarayana v. Shankunni I.L.R.
Excerpt:
specific relief act - act i of 1877, section 42--possession--civil procedure code--act xiv of 1882, section 319--constructive possession. - .....plaintiff's father was really in possession on plaintiff's account, and hence that there was no dispossession of plaintiff, though his father may have been himself dispossessed.3. we were referred to the following cases: narainan v. nilakandan nambudri i.l.r. 4 mad. 131; dayachand nemchand v. hemchand dharamchand i.l.r. 4 bom. 515; juggobundhu mukerjee v. ram chunder bysack i.l.r. 5 cal. 584 and lokessur koer v. purgun roy i.l.r. 7 cal. 418 but we do not think they support this contention. the two first are authority for the proposition that mere attachment is not dispossession, and the two latter show that formal or symbolical possession operates as a complete transfer of possession.4. where, therefore, the land being in the actual occupation of tenants, the formal possession was.....
Judgment:

1. The only point arising in the appeal is whether the Subordinate Judge has rightly decided that it is necessary for the plaintiff to sue for possession.

2. It is not alleged in the plaint that plaintiff was in possession or that the property had actually passed to his possession, but the learned Advocate-General contends that when the property was attached and symbolical possession given under Section 319, Civil Procedure Code, the plaintiff's father was really in possession on plaintiff's account, and hence that there was no dispossession of plaintiff, though his father may have been himself dispossessed.

3. We were referred to the following cases: Narainan v. Nilakandan Nambudri I.L.R. 4 Mad. 131; Dayachand Nemchand v. Hemchand Dharamchand I.L.R. 4 Bom. 515; Juggobundhu Mukerjee v. Ram Chunder Bysack I.L.R. 5 Cal. 584 and Lokessur Koer v. Purgun Roy I.L.R. 7 Cal. 418 but we do not think they support this contention. The two first are authority for the proposition that mere attachment is not dispossession, and the two latter show that formal or symbolical possession operates as a complete transfer of possession.

4. Where, therefore, the land being in the actual occupation of tenants, the formal possession was given to the auction-purchaser (second defendant's father) under Section 319, Civil Procedure Code, the plaintiff's father was completely dispossessed whether he held on his own account or for his son. Plaintiff was then a minor, but had his father as his guardian brought this suit on his account, there can be no doubt, that he would have been obliged to sue for possession having been actually dispossessed and the property transferred to another. The case is not altered by plaintiff attaining majority, and we think the principle laid down in Narayana v. Shankunni I.L.R. 15 Mad. 255 applies.

5 Taking this view we must dismiss the appeal with costs.


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