1. This is a petition to revise the order of the Subordinate Judge, Madurai, dismissing an application preferred by the petitioners under Order 21, Rule 100, C.P.C. as incompetent. The properties which are the subject matter of these proceedings are lands which were purchased by the second respondent Ramaswami Naicker, at a sale held by the Madurai-Ramnad Central Co-operative Society. The first respondent Soundaravalu Ammal filed O.S. No. 109 of 1947, Subordinate Judge's Court, Madurai for recovery of these and other properties on the ground that they formed part of the Valayapatti zamin and that she became entitled to them as reversioner. Ramaswami Naicker was impleaded as the 76th defendant in that suit and though he filed a written statement raising several pleas, he eventually abandoned the contest and an ex parte decree was passed against him.
In execution of that decree, the first respondent obtained possession of the lands. The petitioners thereupon filed E.A. No. 443 of 1949 under Or. 21, Rule 100, C.P.C. and as the point for decision in this revision is whether this petition as framed is maintainable, it is necessary to set out the allegations contained therein. The averments in the petition are that the two petitioners are brothers of the second respondent that they are all members of a joint undivided Hindu family; that the lands in question were purchased with joint family funds, though the sale deed itself was taken in the name of the second respondent, that accordingly the petitioners were entitled to two-third share therein, that though the second respondent was the eldest member, he was not the manager of the joint family and that in consequence the decree passed against him in O. S-No. 109 of 1947 and the execution proceedings taken thereunder were not binding on them.
The petition then alleges that the first respondent
'managed to get an endorsement on the delivery warrant as if the properties in the schedule had been delivered to her; there has been no real delivery and the delivery if any cannot bind the petitioners who are not parties to the suit' and that 'though actual delivery has not been made and though the delivery cannot affect the rights of the petitioners, the petitioners apprehend that the return of delivery or the warrant of delivery might be improperly used for the purpose of ousting the petitioners from possession of the properties.' The prayer in the petition is that 'this Honourable court should be pleased to hold, if it is of opinion that there has been actual and effective delivery of the properties to the first respondent, that the delivery cannot affect the rights of the petitioners to possession of the schedule properties, order re-delivery of the same to the petitioners and direct the first respondent to enforce her rights if any against the second respondent by means of a partition suit.'
The Subordinate Judge dismissed the application on the preliminary ground that as the petitionerscontended that there had in fact been no dispossession, it was not maintainable under Order 21, Rule 100.
2. The petitioners question the correctness of this order. They contend that it proceeds on a misapprehension of the true scope of the petition that while the stand taken by the petitioners was that mere was no dispossession they also prayed for an appropriate relief if it should turn out that in fact there had been real delivery; that what was claimed in the petition was, therefore, relief in the alternative and that that was in law competent; and that the order of the Subordinate Judge dismissing the petition without any enquiry is in consequence illegal.
In support of this contention the decision in --Jagannath Bijraj v. Khwaja Fasiuddin', AIR 193d Nag 442 (A) was relied on. There, the facts were that in execution of a decree for possession against judgment-debtor who owned 7/72 share in an estate, the decree-holder took delivery of the whole of certain plots. The co-owners of the judgment-debtor filed an application under Order 21, Rule 100, wherein they alleged that in spite of delivery they continued to be in actual possession of the lands. They also prayed in the alternative that if it was found that there was dispossession, they might be restored to possession. The District Judge held that they were in actual possession and that the decree-holder had obtained only symbolical delivery and on those findings, passed an order for joint possession of the petitioners along with the decree-holder. The latter took up the matter in revision to the High Court and contended that as the applicants had admitted that their possession had not been disturbed, the petition under Order 21, Rule 100 was incompetent. In rejecting this contention Niyogi J. observed:
'When a party is in doubt as to his legal right to apply under Order 21, Rule 100, C.P.C., he can well invite the court to pronounce its opinion and his competency to apply would depend upon the nature of the court's opinion. When a party conies to court with an alternative case, the court cannot non-suit him by refusing to consider his alternative case which gives him in reality a right of action.'
Mr. K. Vaideeswaran, the learned advocate forthe contesting respondent, disputes the correctness of these observations. He contends that inan application under Order 21, Rule 100 the onlyquestion that could be investigated is whetherthere had been dispossession; that the possessioncontemplated in the rule is actual possession; thatas the petitioners were never in actual possession,there could be no question of dispossession underthat rule; that further as the petitioners maintained that their possession was not in fact disturbed they were not entitled to present an application under Order 21, Rule 100 and that a question of alternative relief could not arise in proceedings under that rule.
3. It is necessary at the outset to find out what the true position is on the facts as alleged in E.A. No. 443 of 1949, which facts must of course be assumed to be true at this stage as the application has been dismissed on demurrer. According to the petition, the lands mentioned in the application belonged to all the three brothers as joint family property. There is no allegation that the petitioners were either in actual possession thereof along with the second respondent or were in enjoyment of profits realised therefrom. Indeed it does not appear from the petition that the applicants are in receipt of any income as members of joint family. Even in the prayer what is claimed is that the delivery could not affect 'the rights of the petitioners to possession of the schedule properties'. It is clear from the above that tile petitioners did not set up a case of actual possession of the lands; they only alleged that they were in legal possession as members of a joint family and their complaint was that the delivery proceedings were an interference with that possession.
4. Mr. K.S. Champakesa Aiyangar, the learned advocate for the petitioners contends that the possession contemplated by Order 21, Rule 100 is not limited to exclusive possession, that it would include also joint possession and that it is therefore competent to a member of a joint family to complain of dispossession under Order 21, Rule 100. In support of this position he relied on the decision in -- 'Radha Gobinda Misser v. Raghunath Missir', AIR 1914 Cal 186 (B). There the facts were that a decree was passed against a member cl a Mitakshara joint family and in execution thereof the decree-holder purchased the properties in dispute and got into possession thereof a transferee from one of the members of the family who was not a party to the decree applied under Order 21, Rule 100 for restoration of possession. It was held that that provision applied not merely to persons who were in exclusive possession but also in joint posession of properties.
The learned Judges Mookerjee and BeachcroftJJ. approved of the decision in -- 'Govinda Nairv. Kesava', 3 Mad 81 (C) where MuthuswamiAiyar J. had held that
'a claimant, who has E-n interest in the land of which possession has been delivered, either as a member of the family or otherwise and who is affected by the delivery of possession as he himself is in possession, is really a person who is in possession in respect of his own interest though jointly with the judgment-debtor end, he can, consequently, claim to be in possession of the property on his own account within the meaning of Section 331 of the Code of 1882.'
This decision was followed by Panckridge J. in
-- 'Indubhushan Das v. Haricharan Mandal' : AIR1931Cal333 , by Das J. in -- 'Ram Kishun Singh v. Damodar Prosad', : AIR1924Pat506 (E) and by Niyogi J. in -- 'AIR 1938 Nag 442 (A)'. These authorities clearly establish that a person, in joint possession is competent to maintain an application under Order 21, Rule 100; but nevertheless it is necessary that that person must have been actually in possession before he could apply under this rule. As already stated, there is no averment that the petitioners were themselves cultivating the lands or had leased the lands and wore in receipt of rents. No authority has been cited that Order 21, Rule 100 would be applicable in such circumstances.
In -- 'AIR 1914 Cal 183 (B), cited by the petitioners, it is observed:
'The court below has found as a fact that theclaimant was in joint possession of the propertyalong with the judgment debtor'.
In -- 'AIR 1938 Nag 442 (A)', again it is stated that 'the objectors were solely in possession since 1932, i.e., for 3 years before the delivery of possession to the decree-holders'. The facts in -- ' : AIR1931Cal385 (D)', and -- ' : AIR1924Pat506 (E)', would appear to be similar. The present case differs from the above decisions, in that the petitioners did not have at any time actual possession or enjoyment of the lands. Mr. K.S. Champakesa Aiyangar contends that for Order 21 Rule 100 to apply, it is not necessary that the petitioners should have actual possession and that it would be sufficient if they had juridical possession. And he relied on the decisions wherein landlords who had put lessees in possession of the properties, were held entitled to file an application under Order 21 Rule 100 even though they were not themselves in physical possession. Vide'Mancharam v. Fakirchand,' 25 Bom 478 (F) and -- 'Brajabala Devi v. Gurudas Mandal', 33 Cal 437 (G), it is contended that on the same principle when one co-owner has been dispossessed it is competent fcr another co-owner to maintain an application under Order 21 Rule 100 even though he was not in actual possession.
5. This argument, though plausible, is untenable having regard to the true scope of Order 21 Rules 100 and 101. The object of these rules is to sustain the possession of persons who were not parties to the suit and who are in possession on their own account or on behalf of others who are not judgment-debtors. The scope of the enquiry under these rules is limited to finding whether the applicant was in possession at the time of delivery. If that is found, he has to be restored back to possession. That clearly indicates that what the court is concerned with is actual possession. Any question of juridical possession would be foreign to the nature and purpose of the enquiry.
It was observed in -- 'AIR 1914 Cal 186 (B)'. that the effect of an order under Order 21 Rule 101 was to restore the 'status quo' before delivery was effected so far as the applicant was concerned. That will have a practical value only if the applicant was in actual possession of the propertyor was in receipt of income therefrom. If he had neither, the restoration will mean nothing to him. If his position after delivery remained precisely what it was before, an order under Rule 101 cannot yield him any benefit. It is on this principle that the authorities have held that where adecree-holder obtains merely symbolical possession an application under Order 21 Rule 100 is notmaintainable. Vide -- 'Ibrahim Mullick v. Ramjadu Rakshit', 30 Cal 710 (H), -- 'Goshtha Behari v. Indrachandra' : AIR1933Cal144 and --'Ma Aye Tin v. E.A. Rice and Trading Co', AIR 1941 Rang 298 (J). In these cases the delivery which was symbolical had not interfered with theactual possession of the applicants and there was no dispossession.
In the present case, which is their converse, thedelivery which is actual has not interfered with the juridical possession of the applicants and therefore, there is no dispossession. The decisions in which landlord was held entitled to file an application under Order 21 Rule 100 when the person actually dispossessed was the tenant donot form an exception to this rule. There the receipt of the rent by the landlord is tantamount to actual possession by him. The position might be thus stated. When lands are leased, both the landlord and the tenant together share the produce in such proportion as they agree; both of them are thus equally in possession and both of them are entitled to take action under Order 21Rule 100. But when a co-sharer in possessionappropriates the whole income for himself it cannot be said that the other co-sharers are in actualpossession of the lands. It is true that for certain purposes the possession of one co-sharer may he regarded as the possession of the other co-sharers. But that, however, is juridical possession and Order 21 Rule 100 is concerned with actual possession. My conclusion is that where I there are no allegations of actual possession by the applicants and of disturbance thereof, Order 21 Rule 100 has no application. This of course does not prevent the applicants from establishing their rights in an action. The bar is only with reference to the special procedure prescribed in Order 21 Rule 100.
6. In this view, it is unnecessary to consider whether the observations in -- 'AIR 1938 Nag 442 (A)', that an applicant under Order 21 Rule 100 is entitled to claim relief in the alternative can be accepted as a correct statement of the law. That, that would be the position under the general law cannot be disputed. That is provided in Order 1 Rule 3. But that rule presupposes that the court has jurisdiction to grant either of the reliefs, though which of them should be granted, would depend on the findings to be given at the trial. But where the court has jurisdiction to grant one of the reliefs, but not the other, can it be said that there is any right in the party to claim relief in the alternative in that court?
In -- 'B end N.W. Rly. Co. Ltd v. Sadaram', AIR 1822 Cal 500 (K) a suit was instituted against two persons in respect of one of whom the court had no jurisdiction. It was contended on behalf of the plaintiff that as Order 1 Rule 3 authorised alternative reliefs to be claimed, the suit was maintainable as against both the defendants. In overruling this contention, Woodroffe J. observed:
'In ray opinion, Order 1, Rule 3 has no bearing on the case. That rule of the order is a provision which relates to a joinder of parties, and it assumes the existence of a suit in a proper forum, the court having jurisdiction to try the suit. If the court has such jurisdiction, then Order 1 rule 3 may come into play.'
In other words Order 1 rule 3 must be read subject to other provisions. Therefore, the question is not whether under the general law the petitioners are entitled to claim relief in the alternative, but whether they are entitled to do so in a proceeding under Order 21 Rule 100. Now what are the reliefs that can be granted under that rule? if the applicant proves that he was dispossessed, he would be entitled to an order for restoration under Order 21 Rule 101. If not, his petition would stand dismissed. What then is the alternative relief that can be granted in such a petition? It is argued that the court might in holding that there has been no dispossession declare that the delivery proceedings did not affect the lights of the petitioner. Such an order is clearly outside the scope of Order 21 Rule 101. Vide -- 'Mahomed Abdul Rahim v. Parashram', (L). It cannot therefore be claimed in a petition under Ordsr 21 Rule 100. Moreover, such an order would serve no practical purpose because the position would be the same even without such an order, as the petitioners are not parties to the execution proceedings. In '30 Cal 710 (H)' the petition under Order 21 Rule 100 was framed precisely in the terms of the present petition and the decision was that such a petition was not maintainable. With respect, I agree with that decision.
7. in the result, the order of the Subordinate Judge dismissing E.A. No. 443 of 1949 is affirmed and this revision petition is dismissed with costs.