Anantakrishna Ayyar J.
1. On the allegation that the plaintiffs' father obtained a decree against the father of the present defendants and also against the 3rd defendant, in O.S. No. 1180 of 1804, for the suit lands, and took delivery thereof On 27th September, 1908, through Court in execution of the decree, and that in 1909 the defendants trespassed upon about 2 acres of the said lands and in 1917 upon about 5 more acres and that they were also attempting to disturb the plaintiffs' enjoyment of the lands in B schedule, the plaintiffs instituted the original suit for possession of the A schedule lands, and for an injunction and if necessary also possession of the B schedule lands, attached to the plaint, with, mesne profits.
2. Of the defendants Nos. 1, 2 and 3, who are brothers, the 3rd defendant disclaimed all interest in the suit lands, and the second defendant was subsequently exonerated by the plaintiffs, and the 1st defendant, the really contesting defendant in the suit, alleged that the lands belonged to the defendants, that in the partition which took place 25 years prior to the suit most of the suit lands fell to the 1st defendant's share, that after the death of their father the defendants were in possession of his properties also, that the decree in the prior suit was not binding on the defendants, that the plaintiff's father never took actual delivery of the plaint lands in execution of the prior decree, and that the suit was barred by limitation. There was also a further plea raised in the additional written statement of the 1st defendant that the suit for injunction in respect of B schedule properties was not maintainable as the plaintiffs were not in possession of the same.
3. Six issues were framed by the District Munsif, the 1st issue raising the question of alleged trespass and also limitation; the 2nd issue raised the question of partition; the 3rd issue raised the question whether the defendants Nos. 1 and 2 were precluded from putting forward the pleas by reason of the decision in O.S. No. 1180 of 1904; the 4th issue raised the question whether the plaintiff was entitled to an injunction in respect of B schedule lands; and the 5th issue was whether defendants Nos. 1 and 2 had acquired title by reason of adverse possession of both warams as contended by them; and the 6th issue raised the question of the relief to which the plaintiffs were entitled.
4. The District Munsif found that the partition set up by the defendants was not proved, that the trepass alleged by the plaintiff was proved, and that the suit was not barred by limitation as it was filed within 12 years from the date of the delivery of the lands to the plaintiffs' father in execution of the decree in the prior suit. The plaintiffs were given a decree for the possession of the suit lands (both A and B schedules) with mesne profits.
5. The 1st defendant preferred an appeal from the District Munsif's decree. The learned Additional Subordinate Judge reversed the decision of the District Munsif and dismissed the suit. The plaintiffs have preferred the present second appeal. The learned Additional Subordinate Judge upheld the decree of the District Munsif that the partition set up by the defendants had not been proved. That is a finding of fact and must be accepted. As I understand the learned Additional Subordinate Judge's judgment, he reversed the decision of the first Court by reason of his findings upon 2 points, viz., that the defendants Nos. 1 and 2 were not bound by the decree in the prior suit, and that plaintiffs had no possession within 12 years prior to the present suit. It is, therefore, necessary to consider those two points at some length.
6. The prior suit was instituted by the plaintiffs' father against the defendants' father (Korattayyan) who was the 82nd defendant in the prior suit, and the present 3rd defendant who was the 83rd defendant in the prior suit. The defendants' father is said to have been very old at the time, and the 3rd defendant, the next senior most male member of the family and the eldest son of Korattayyan, was also a party to the suit. The defendants' father having died, the litigation was continued against his representative, 83rd defendant (the present 3rd defendant), already on record. The previous suit was contested by the defendants but the then plaintiff was given a decree by the District Munsif. The learned Additional Subordinate Judge held that the defendants Nos. land 2 were not bound by that decree because neither the defendants' father nor the 3rd defendant was sued as manager, the learned Judge's view evidently being that unless they were sued expressly as managers, that decree would not be binding upon the defendants Nos. 1 and 2. His reasoning is contained in para. 10 of his judgment: 'Besides, there are no indications to show that either the 3rd defendant or the father of the defendants Nos. 1 to 3 was sued as manager. If the father was sued in his capacity as manager, the 3rd defendant would have been an unnecessary party. If the 3rd defendant was the manager their father would have been unnecessary. The plaintiffs father had to file a number of suits; apparently he was not aware of the existence of these defendants. But I do think that the evidence justifies an inference that either the 3rd defendant or the 3rd defendants' father was sued as manager of the family of defendants. I find that the defendants Nos. 1 and 2 were not bound by the decree.'
7. I think the learned Subordinate Judge's decision of this point is unsustainable. The circumstance that neither the father of the present defendants nor the 3rd defendant was expressly described in the prior plaint as manager is not conclusive to show that the decision is not binding on the defendants Nos. 1 and 2. The decision in Kunjan Chetti v. Snidda Pillai 22 M. 461 and Subbanna Bhatta v. Subbanna 30 M. 324 : 2 M.L.T. 83 : 17 M.L.J 180 are authorities in support of this position. As remarked by Benson and Wallis, JJ., in Subbanna Bhatta v. Subbanna 30 M. 324 : 2 M.L.T. 83 : 17 M.L.J 180: 'Further, where as here, the managing member is sued for the purpose of charging the joint family property, we think he must be considered to be sued as a representative of the joint family even if it is not so expressly stated in the plaint.' As remarked by Subramanya Iyer and Benson, JJ., in the case reported as Kunjan Chetti v. Sidda Pillai 22 M. 461: 'If the father is manager and the question in issue is one which equally affects him and the other members of the family, and if the suit is properly defended, the adjudication will bind ail the persons interested along with the father, for the reason that, in that case, it must be presumed that the father represents the interest of all.'
8. Thus the circumstance that neither the defendants' father nor the 3rd defendant who were parties to the prior suit was described expressly as manager of the family, does not, by itself, make the decision in the prior suit not bindind on the present defendants who were members of an undivided family.
9. Further, the provisions of Section 11, Explanation 6 of the Code of Civil Procedure have also to be considered in this connection, to see whether the prior decision is res judicata against the present defendants. 'Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right, shall, for the purposes of this section, (Section 11) be deemed to claim under the persons so litigating.' As decided by the Privy Council in the case reported as Lingangowda Dod v. Basangowda Bistangowda Patil a decree obtained by or against the managing member of the joint Hindu family is binding upon minor members of the family, under Section 11, Explanation 6, if it appears to the Court that the manager was acting in the former litigation on behalf of the minors in their interests. Their Lordships observed at page 453 Page of 51 B.-[Ed.]: 'In the case of a Hindu family where all have rights, it is impossible to allow each member of the family to litigate the same point over and over again, and each infant to wait till he becomes of age, and then bring an action, or bring an action by his guardian before; and in each of these cases, therefore, the Court looks to the Explanation 6 of Section 11 of the Code of Civil Procedure to see whether or not the leading member of the family has been acting either on behalf of minors in their interest, or if they are majors, with the assent of the majors.'
10. The finding of the lower Appellate Court as regards the binding nature of the decree in the previous suit could not, I think, be supported.
11. The decision of the learned Subordinate Judge on the question of limitation also is, I think, unsustainable. If the decree was binding on the joint family, including the present defendants, then the delivery of possession made to the decree-holder in execution of that decree was also equally binding on the joint family. The learned District Munsif in the present case to the conclusion that under Ex. B the lands included in the decree were actually delivered to the decree-holder (father of the present plaintiffs) on 27th September, 1908. The present suit was filed on 27th September, 1920, and is prima facie not barred by limitation. From the learned Subordinate Judge's judgment, it is not quite clear whether he was or was not satisfied that the decree-holder got actual possession in execution and was in possession for a time, however short, of the said properties after the delivery made to him through Court under Ex. B. It is observed in paras. 16 and 18 of the lower Appellate Court's judgment that 'the evidence is hardly satisfactory to show that the plaintiffs or their lessee or their servants ever enjoyed the property in pursuance of the delivery under Ex. B.' The question to be considered is not whether the decree-holder or his servants 'actually enjoyed' the property, (para. 16) but whether they were in possession by virtue of the delivery made through Court. There is difference between 'possession' and 'enjoyment'. Even if the defendants continued to be in the possession of the properties inspite of the delivery of the properties made through Court yet, as against the defendants to the suit and parsons represented by them, the effect of such delivery should be taken to be that the decres-holder was in possession; and consequently a fresh cause of action would arise against the defendants, and limitation would begin to run only from the date of the delivery made through Court. This is made clear by the observations of Sir S. Subramanya Ayyar, Officiating Chief Justice, and Bhashyam Iyenger, J., in the case reported as Kocherlakota Venkatakrishna Rao v. Vadrevu Venkappa 27 M. 262 at p. 270 'If the judgment-debtor is in possession, such delivery operates as a delivery of actual possession.' The recent decision of a Bench of two learned Judges of this Court (Waller and Madhavan Nair, JJ.) in the case reported as Dharmala Kamayya v. Bhimarasetti Mahalakshmi : AIR1927Mad849 also supports this proposition. In that case, the plaintiff obtained a decree for possession and applied for delivery. He obtained only symbolical possession and not actual possession. The defendant was in possession both before and after the delivery for a total period of about 20 years. Plaintiff waited for nearly 12 years from the date of the symbolical delivery, and then brought a suit against the same defendant for recovery of possession. The learned Judges held that the suit was not barred by limitation, as the symbolical delivery gave rise to a fresh period of limitation as against the judgment-debtor who was not entitled to deny that he was dispossessed, even though he was not actually evicted. In fact the Privy Council in the case reported as Radha Krishna Chanderji v. Ram Bahadur 43 Ind. Cas. 268 : 34 M.L.J. 97 : 16 A.L.J. 33 : 23 M.L.T. 26 : 4 P.L.W. 9 : 7 L.W. 149 : 22 C.W.N. 330 : 27 C.L.J. 191 : (1918) M.W.N. 163 : 20 Bom.L.R. 502 (P.C.) held that symbolical possession was sufficient to interrupt adverse possession, if the adverse possessors were parties to the proceedings in which it was given. The Privy Council approved of the decision of a Fall Bench of five learned Judges of the Calcutta High Court, in the case reported as Juggobundhu Mukerjee v. Ram Chander Bysack 5 C. 584 : 5 C.L.R. 548 : 3 Shom L.R. 68. This has been the view followed by this High Court in the cases reported as Govind v. Venkata Sastrulu 17 M.L.J. 598 and Dharmala Kamayya v. Bhimasetti Mahalakshmi : AIR1927Mad849 . The finding of the learned Subordinate Judge on the question of limitation is, therefore, unsustainable.
12. It, therefore, follows that even if the decree-holder did not obtain actual possession, a fresh cause of action arises from the date of the delivery made in execution, and so the present suit is not barred.
13. As the decision of the lower Appellate Court has proceeded on erroneous principles, I reverse that decision, and remand the appeal to the lower Court for fresh disposal according to the law on the evidence on record having regard to the observations contained in this judgment. The costs of the second appeal will abide and follow the result of the decision or the appeal on remand. The Court-fee paid on the second appeal memorandum will be refunded to the appellants.