1. On 22nd August, 1921, one Thirumalaiswami Naicken leased the suit property to one Subba Naicken. The plaintiff's predecessor-in-title in execution of a decree against Thirumalaiswami, brought the property to sale and purchased it on 29th June, 1925. The sale was confirmed on 30th July, 1925. On 22nd October, 1925, the auction-purchaser applied for delivery; but the tenant naturally obstructed the delivery and upon notice being given to him he said that he was in possession under the lease Ex. D of 22nd August, 1921, that the lease had still two years or so to run, and that until the term of the lease expired he was entitled to remain in possession. The Court then ordered symbolical delivery; but the auction-purchaser endorsed on the petition that she did not press her application as she was content to wait until the lease expired. So the application was dismissed on 18th March, 1926. The plaintiff's predecessor-in-title took no steps to reduce the land to possession. On 7th July, 1932, she sold it to the plaintiff. Even the plaintiff took no steps for many years. He then set up a lease to one Palani Goundan, which was found by the lower Courts to be a bogus and collusive transaction entered into in order to avoid any difficulties that might arise because the plaintiff and his predecessor-in-title had taken no steps to reduce the property to possession. The trial Court held that time began to run from the date of confirmation of sale, 30th July, 1925; but the lower appellate Court held that the time did not begin to run until the lease expired. It therefore decreed the plaintiff's suit for possession. It may be mentioned that the plaintiff had obtained an ex parte decree against Palani Goundan and attempted to obtain possession in execution of that decree. He was, however, obstructed by the present defendants, who belong to the family of Thirumalaiswami. The plaintiffs were unsuccessful in the resulting claim petition and so brought the present suit.
2. On the above evidence and also upon the finding that the defendants had no title to the land and were mere trespassers, the question is whether time began to run against the plaintiff's predecessor-in-title from 30th July, 1925 or from the date of the expiry of the lease. The difficulty in deciding this point arose from the fact that the auction-purchaser declined the offer of the Court to put her in symbolical possession. So it is rather difficult for the plaintiff to argue that despite the fact that symbolical delivery was refused, he was nevertheless in constructive possession of the land during the remainder of the lease. If therefore the plaintiff had to prove that he was in possession within 12 years of the suit he would have failed. But the learned advocate for the plaintiff argues that the article of the Limitation Act which applies is Article 137; and I agree with. him. It seems to me that Article 137 was framed precisely to deal with cases like the present one, where a person was not in possession at the date of sale. It can be said perhaps that Thirumalaiswami Naicker was in constructive possession; but it seems clear to me from a perusal of articles 136, 137 and 138, and other articles that the possession referred to is actual possession, and not constructive or symbolical possession. Thirumalaiswami had no right to the possession of the land until 22nd August, 1927, and clearly the plaintiff's predecessor-in-title could not have brought a suit before that date; for she was not entitled to physical possession. One would expect therefore that time would begin to run only from the date on which she was entitled to physical possession of the land; and that is what Article 137 says. As this suit was brought within 12 years from the date when Thirumalaiswami was entitled to possession according to the terms of the lease, the plaintiff's suit was in time. The appeal is dismissed with costs.