1. The plaintiff is the appellant. He filed the suit for a declaration of his title, possession and injunction and for mesne profits. The suit was in respect of ten items and there were four defendants. The plaintiff obtained a decree in respect of Items 1 to 6 and 9 and 10 as against defendants 1, 3 and 4 and that is not the subject-matter of appeal here. The second defendant is in possession of Items 7 and 8 and this second appeal relates only to these two items.
2. The facts leading up to this second appeal are these: The plaintiff as assignee-decree-holder of a decree in O. S. 550 of 1930 took proceedings to execute that decree and in execution thereof purchased these two items along with others in court-auction on 24-10-1935. He alleged that he took delivery of possession in pursuance of his purchase on 2-12-1938. The plaintiff's further case was that the second defendant trespassed on these Items 7 and 8. Thereafter the plaintiff filed O. S. 453 of 1950 against the second defendant and a number of others for possession of these items. In this suit the second defendant remained ex parte and the suit was decreed on 22-1-1952 as seen from the copy of the judgment Ex. A-1 filed in this case. Thereafter the plaintiff filed E. P. 96 of 1964. It is stated that the plaintiff obtained delivery of possession on 4-5-1964; and he had filed the certified copy of the delivery warrant Ex. A-2 in this case. On the ground that the second defendant has again trespassed on the suit properties, he has filed the present suit. In the written statement filed by the second defendant, it was contended that the second defendant was not aware of the suit at all and that the decree in O. S. 453 of 1950 was obtained fraudulently. He also contended that the delivery said to have been effected on 4-5-1964 was false, fraudulent and legally void. There was no actual delivery of the said properties to the plaintiff. The plaintiff was not also entitled to get delivery of the properties more than 12 years after the decree. Delivery said to have been effected was in contravention of the provisions of the Limitation Act and therefore void and legally ineffective.
3. The trial Court decreed the suit holding that the plaintiff had actually taken possession in execution of the decree on 4-5-1964 and that in view of this finding the trespass alleged was true and that the second defendant had not perfected his title by adverse possession. On appeal by the second defendant, the learned Subordinate Judge, Pudukottai, allowed the appeal and dismissed the suit. He was of the view that there was no actual delivery of the properties and that the second defendant had remained in possession in his own right for more than the statutory period and prescribed his title. The plaintiff has filed this second appeal.
4. The learned counsel for the appellant contended that the plea of the second defendant that delivery of possession could not be effected beyond the period of twelve years from the date of decree is not correct in law and that if the execution petition had been filed before the expiry of the period of 12 years, delivery could be effected at any time thereafter. He also submitted that there was no specific plea in the written statement that the execution petition was not filed within the period of 12 years. But, in my opinion, this is rather a very strict and narrow interpretation and understanding of the plea in the written statement. The second defendant has pleaded that the delivery said to have been effected on 4-5-1964 was in contravention of the provision of the Limitation Act and that therefore it was void and legally ineffective. This, as submitted by the respondent could also include the point that the execution petition itself was beyond the period of limitation and therefore no effective delivery was given.
The learned counsel for the appellant contended that even assuming that E. P. 96 of 1964 in which delivery was ordered was filed beyond the period of 12 years, it was not open to the second defendant to challenge the delivery in the E. P. in these collateral proceedings. He cited a passage at page 256 of Vol. I of Mullah's C. P. Code, and relied on the decision in Prakash Chandra Chakravarti v. Barada Kishore Chakravarti : AIR1934Cal282 and Venkatalinga v. Raja Dhanaraj : AIR1929Mad826 . Of course, these two decisions are clear authorities for the proposition that where an application for the execution of a decree is entertained after 12 years in contravention of the provisions of Section 48 C. P. Code, the executing court does not exercise a jurisdiction which it did not possess but decides a question erroneously. Such a decision, if not appealed against, is binding between the parties who are represented before it or had notice of the proceedings and cannot be questioned collaterally. The only question then will be whether the judgment-debtor had notice of the execution proceedings. In this case, though the second defendant in his written statement, contended that the execution proceedings were barred by limitation, he did not state that he did no have any notice of the execution proceedings (sic) were not valid. Therefore, we have to proceed on the basis that the second defendant had notice of the execution proceedings. If that were so, then even if E. P. 96 of 1964 had been in fact filed after the expiry of the period of 12 years, the order passed thereon could not be challenged in this suit.
5. But the real question that arises for consideration is whether there was any delivery of possession of the suit properties to the plaintiff on 4-5-1964 and whether Ex. A-2 evidence only a mere paper delivery and not actual delivery of possession. The learned counsel for the appellant strenuously contended that Ex. A-2 being a public document, it shall be presumed to be a recording of a proceeding taken in conformity with the provisions of law. But this presumption itself does not conclude the issue. In this case, the case of the plaintiff was that the took actual delivery of possession, and, if that be so, the delivery would have been one under Order 21, Rule 35, C.P.C. But we have the admitted fact that the suit properties were in the possession of the tenants at the time when the execution proceedings were stated to have been taken and delivery was ordered. Therefore, the delivery could only be under Order 21, rule 36.
The learned counsel for the appellant contended that even if symbolical delivery was erroneously given, so far as the second defendant judgment-debtor was concerned it will operate as actual delivery. In support of this contention he relied on the decision reported in Govind v. Venkata Sastrulu (1907) 17 MLJ 598. The facts of that case were these. The suit was for possession of lands brought by the plaintiffs in a court auction sale, they themselves being the assignee decree-holders of a mortgage decree. The first and second defendants were the purchasers of the lands from the mortgagor. The properties sold were not described in the decree by boundaries or position. Plaintiffs, after their purchase in court sale applied to have the sale certificate modified by insertion of the survey numbers and extent, but failed in their attempt. They subsequently obtained symbolical possession under Section 319 of the then C. P. Code. It was contended for the defendants that the delivery of symbolical possession under Section 319 which corresponds to Order 21, Rule 96 was a nullity because the lands were not in the possession of tenants. This court held, following certain decisions of the Calcutta High Court that
'delivery of symbolical possession even though erroneously made operated to give the person put in possession a fresh cause of action and to place the judgment-debtor in the position of trespasser'.
Though this is a decision by a Division Bench, this was not followed by a Single Judge in the case reported in Kamayya v. Bhimarasetti Paridesi, 49 MLJ 303 AIR 1925 Mad 1140 on the ground that a later Full Bench decision reported in Govindasami Pillai v. Pethaperumal Chetti, 44 Ind Cas 839 AIR 1918 Mad 207 , has taken a contrary view. A Full Bench in 44 Ind Cas 839 AIR 1918 Mad 207 took the view that symbolical possession is given only in cases where the party in actual possession is entitled to remain in such possession as in the case of delivery under Order 21, Rule 96 and should not be confounded with cases where a party is entitled to actual possession but obtains only what is called a paper delivery. This is a decision which was followed by the Single Judge in 49 MLJ 303 AIR 1925 Mad 1140. The present case is a converse one and the decisions cited are not applicable. In the present case the plaintiff pleaded that he took actual delivery of possession and that could be only under Order 21, Rule 35. But actually, as admitted by the plaintiff, the lands were in the possession of tenants and therefore only symbolical delivery could have been taken and not actual possession. Since the plea was that he took actual possession, the certified copy produced could only be evidence of a paper delivery and not actual taking of possession. The lower appellate court was therefore right in holding that the plaintiff did not take actual delivery of the properties. It may also be mentioned that in I. A. 100 of 1965 filed by the plaintiff for ascertainment of the mesne profits, the plaintiff had claimed mesne profits for a period of more than 15 years continuously. He had not stated anywhere that the second defendant was liable to pay mesne profits upto 4-5-1964 and then again from the date of trespass, thereby showing that there was no interruption in the possession of the second defendant any time in 1964. This is also a circumstance which was relied on by the Lower Appellate Court.
6. In the foregoing circumstances, the second appeal in liable to be dismissed and it is hereby dismissed; but there will be no order as to costs. No leave.
7. Appeal dismissed.