1. The finding of the lower Courts is that this property has been enjoyed adversely by the defendant from a time prior to 9th July, 1917, and that he has therefore perfected a title to the property by adverse possession. In S.A., it is contended that, by operation of law, possession was interrupted on 9th July, 1917.
2. The learned Advocate for the appellant has emphasised that when a symbolical delivery is given or where a Boundary Officer determines a Boundary and an application is not made to a Civil Court within a year, adverse possession is deemed by law to have been broken. By analogy, he contends that where a Court dismisses a claim petition it is not open to the defeated claimant to contend that he was in possession on the date of his claim petition. The effect of a symbolical delivery or a decision of a survey officer is clearly different from that resulting from a mere order of Court. In the case of a symbolical delivery, an amin actually goes to the disputed property and openly declares that a symbolical delivery is given, and the person in possession and other interested parties are informed by proclamation and otherwise that henceforth a certain person is entitled to the legal possession of that property. A somewhat similar procedure is adopted under the Surveys and Boundaries Act. The learned Advocate for the appellant has referred me to Velayuthan v. Laksmana I.L.R. (1885) 8 Mad. 506 and Aisamma v. Moideen : (1923)45MLJ690 in support of his contention. In Velayuthan v. Laksmana I.L.R. (1885) 8 Mad. 506 there was an actual adjudication under Order 21, Rule 60 or its equivalent under the old Code, and the Judges held that as the aggrieved party had not filed a suit, it was not open to him to contend subsequently either that he had title to the property or had been in possession. This case was quoted with approval in Aisamma v. Moideen : (1923)45MLJ690 where the question was however different, in that the application was dismissed under the proviso of Order 21, Rule 58 because the application was unnecessarily delayed. There was therefore no adjudication on the question of possession, and it is difficult to follow why the claimant whose petition was dismissed had by implication an adverse finding on the question of possession. Although Velayuthan v. Laksmana I.L.R. (1885) 8 Mad. 506 was followed with approval, it was not discussed and the difference between the two cases was apparently not noticed.
3. Mr. V.V. Srinivasa Ayyangar on behalf of the respondent has two sound answers to the arguments adduced on behalf of the appellant which make it unnecessary for him to canvass the correctness of Velayuthan v. Laksmana I.L.R. (1885) 8 Mad. 506 and Aisamma v. Moideen : (1923)45MLJ690 . The first is that as the sale was not completed and the attachment was subsequently raised, any adverse finding on the claim petition became inoperative, and that the mere fact that a suit was not filed within a year did not disentitle him to raise the same contentions with regard to title and possession in subsequent proceedings. If the attachment had been raised within a year, then obviously no suit would have been necessary; for the unsuccessful claimant would have got what he wanted without the necessity of filing a suit. The question that arose in Kumar a Goundan v. Thevaraya Reddi (1924) 48 M.L.J. 616 was whether the fact that the attachment was raised beyond a year made any difference. Ramesam, J. says:
The only difference that I can see between the two cases (the raising of the attachment within one year and the raising beyond one year) is that in the former case the unsuccessful claimant who waits incurs no risk, as he knows for certain within one year that the attachment in execution of it has ceased to exist; and in the latter, he takes a risk by not suing, as he cannot be certain, that the attachment will be raised. But I do not see why, when the event on which he takes his chance, viz., the cessation of the attachment by the payment of the decree, or for other reason, happens, he should not take advantage of it simply because he took risks in so waiting.
4. Two later cases Chet Singh v. Gujar Singh A.I.R. 1913 Lah. 74 and Bamapada v. Ramnath Mandal (1935) 40 C.W.N. 146 have also been cited. In the head note to Chet Singh v. Gujar Singh A.I.R. 1913 Lah. 74 we find:
The order under Order 21, Rule 63 is conclusive in the sense that it cannot be agitated again in the execution proceedings in which it was passed unless a suit is brought within one year of the date of the order, i.e., that it is conclusive as between the claimant and the decree-holder who is proceeding against property. If however the decree-holder raises the attachment within a year, obviously there is no reason why the claimant should institute a suit to set aside the order as there is no attachment in force. It makes no difference if the attachment is raised after the termination of one year. It does mean that in those proceedings the claimant is running a risk and will be estopped from contesting the decree-holder's right to proceed against the property; but if the decree-holder does not sell the property and the decree is satisfied otherwise, the fact that the attachment was raised more than a year after the date of the order on the claim, does not make any difference.
5. Finally, in Bamapada v. Ramnath Mandal (1935) 40 C.W.N. 146 the head note runs:
The conclusiveness of an order in a claim case contemplated by Order 21, Rule 63 of the Civil Procedure Code is conditional on the continuance of the execution proceedings and the attachment issuing therefrom. Consequently, when the order is made on an application under Order 21, Rule 58 dismissing a claim, but the sale itself held in the execution proceedings is set aside and the attachment ipso facto comes to an end, a subsequent suit brought beyond one year by the claimant for a declaration of his title is not barred under Article 11, Schedule I of the Limitation Act, and that whether the execution proceedings come to an end within or beyond one year of the date of the order in the claim case.
6. It is thus seen that the attachment ceases to be effective after it is raised even from the date of the attachment itself. And the defeated claimant has the same right to put forward his earlier claims as he had at the time of filing his claim petition.
7. The second argument is that even if by operation of law there was technically a legal break in the adverse possession of 9th July, 1917, the defendant has been in possession for 12 years beyond that date; for the attachment that is sought to be set aside in the present suit did not take place until 8th November, 1929. It is however argued for the appellant that the defendant has to prove that he got into possession again after 9th July, 1917, and that in any case it must be considered that the defendant was not in possession as long as the attachment continued. With regard to the first objection we have the finding of both the lower Courts that the defendant was actually in possession of this property adversely to the plaintiff even before 9th July, 1917, and remained continuously in possession adversely to the plaintiff. The effect of the order on 9th July, 1917, at the most, was to create a break. It did not in fact oust the defendant from possession; so that the defendant is entitled to rely on the fact that he was in possession adversely to the appellant from that date onwards. With regard to the second objection, attachment does not operate as a disturbance of possession; and there is no reason why, therefore, it should be considered that the continuance of an attachment after 9th July, 1917, should be considered as equivalent to an extension of the possession which was held technically against the defendant on 9th July, 1917.
8. In any event, therefore, the appellant fails and his appeal is accordingly dismissed with costs.
9. Leave to appeal granted.