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Dharmala Kamayya Vs. Bhimarasettei Paridesi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtChennai
Decided On
Reported inAIR1925Mad1140; (1925)49MLJ303
AppellantDharmala Kamayya
RespondentBhimarasettei Paridesi and anr.
Cases ReferredGovindaswami Pillai v. Pethaperumal Chetty
Excerpt:
- .....seems very satisfactory. the calcutta high court has taken a different view but in most of the cases symbolic delivery was given to decree-holders who were not entitled to actual possession at the time the property was delivered to them. in govind v. venkata sastrulu (1907) 17 mlj 598 the learned judges, following the calcutta decisions, held 'that the delivery of symbolic possession, even if erroneous, operates to give the person put in possession a fresh cause of action and places the judgment-debtor in the position of a trespasser.' with great respect to the learned judges, i think, where the decree-holder is entitled to actual possession and he does not get it, it cannot be said that he has got the possession to which he is entitled ; and if he does not get actual possession when.....
Judgment:

Devadoss, J.

1. The point raised in this second appeal is that defendants Nos. 2 and 3 do not claim the property adversely to the 1st defendant and that a decree having been executed against the 1st defendant, defendants Nos. 2 and 3 are not entitled to set up their own right in opposition to the plaintiff's claim. The District Munsif found that there was symbolic delivery of the property to the plaintiff. The District Judge accepted that finding and held that symbolic delivery could not bind defendants Nos. 2 and 3 and as they have been in possession all these years, the plaintiffs suit is barred by limitation. It is difficult to follow the reasoning of the learned Judge. Third defendant is the widow of the 1st defendant and the 2nd defendant is his son. Third defendant could not have had possession of her own during her husband's lifetime. First defendant in the previous suit contended that it was ancestral property and that he was in possession. So 3rd defendant could not have had possession independent of the 1st defendant. Second defendant was a minor at the time of the alleged delivery of possession and he could not have had any possession independently of his father who was the managing member of the family. In these circumstances, defendants Nos. 2 and 3 could not have had any possession independently of the 1st defendant and they are bound by the proceedings in execution. The District Judge's decision on this matter is not according to law. But the judgment of the learned Judge can be supported on other grounds. It is argued for the respondents that the delivery was, as the District Munsif puts it, symbolic delivery. The suit was against the 1st defendant and 2nd defendant by the plaintiff for possession under the old Civil Procedure Code. The plaintiff was entitled to actual possession under Section 263, corresponding to Order 21, Rule 35, of the present Code. The finding is that he got what the Munsif calls symbolic possession. The 1st defendant was in actual possession at the time. The question is whether this symbolic delivery is according to law, and whether it gives the plaintiff a cause of action against the 1st defendant. In a recent case reported as Govindaswami Pillai v. Pethaperumal Chetti (1917) 44 IC 839 the learned Judge observed : 'We must point out that symbolic possession is given only in cases where the party in actual possession is entitled to remain in such possession as in cases of delivery under Order 21, Rule 96, of the Civil Procedure Code, and should not be confounded with cases where a party is entitled to actual possession, but obtains only what is called a paper delivery (that is) where he gets no possession at ail.' When a plaintiff is entitled to actual pos session under the law, he is not entitled to get what is called symbolical possession. Symbolical possession is given in cases where he is not entitled to actual possession at the date when property is delivered to him in execution of a decree either by reason of the property being in the possession of tenants or mortgagees or other persons who are entitled to be in possession as against the judgment-debtor. The right to actual possession of the decree-holder in such a case arises only when he the judgment-debtor would be entitled to possession and Articles 137 and 138 of Schedule I, Limitation Act, would apply in such cases. But where a judgment-debtor is actually in possession and the decree-holder is entitled to actual possession and cannot get anything less than that, and if he does not get actual possession he cannot rely upon symbolic possession, for the law does not allow a person who is entitled to actual possession to get only symbolic possession. Rules 95 and 96 of Order 21, Civil Procedure Code, apply to auction-purchasers. Rules 35 and 3.6 apply to the case of the decree-holder who is entitled to possession. In Mahadev Sakharam Parkar v. Janu Namji Hatle ILR (1912) B 373 it was held, that if a person is entitled to actual possession, his taking symbolic possession would be of no avail and the possession of the judgment-debtor would continue and if the decree-holder does not get actual possession within the time allowed by law, his right would be barred. In Jang Bahadur Singh v. Hanwant Singh ILR (1921) A 520 the case of Mahadev Sakharam Parkar v. Janu Namji Hatle ILR (1912) B 373 was followed and to my mind the reasoning of the learned Judge seems very satisfactory. The Calcutta High Court has taken a different view but in most of the cases symbolic delivery was given to decree-holders who were not entitled to actual possession at the time the property was delivered to them. In Govind v. Venkata Sastrulu (1907) 17 MLJ 598 the learned Judges, following the Calcutta decisions, held 'that the delivery of symbolic possession, even if erroneous, operates to give the person put in possession a fresh cause of action and places the judgment-debtor in the position of a trespasser.' With great respect to the learned Judges, I think, where the decree-holder is entitled to actual possession and he does not get it, it cannot be said that he has got the possession to which he is entitled ; and if he does not get actual possession when he is entitled to it, the person in possession of the property cannot be said to be ousted from possession. A later decision of three Judges of this Court, to which I have already referred, and which is reported as Govindaswami Pillai v. Pethaperumal Chetty 44 IndCas 839 is binding upon me. It is unnecessary for me to consider the other cases cited by Mr. Jagannatha Das for the appellant. I hold, that the plaintiff's possession was no possession at all, defendants' possession continued right through and that possession having been for more than 12 years before the date of the suit, the plaintiff's claim is barred. The second appeal fails and is dismissed with costs.


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