M.M. Ismail, J.
1. The third defendant in O.S. No. 250 of 1960 on the file of the Court of the District Munsif of Dharapuram, who succeeded before the trial Court, but lost before the first appellate Court is the appellant herein. The first respondent herein instituted the suit for partition and separate possession of his share in the suit house with future damages at the rate of Rs. 2 per month. The suit came to be instituted in the following circumstances. Admittedly the suit property originally belonged to the husband of the second defendant, whose son is the first defendant. On the death of the original owner of the property, the first defendant as the son and the second defendant as the widow succeeded to the property. The first respondent herein had obtained a decree against the first defendant in S.C. No. 424 of 1951, on the file of the Court of the District Munsif of Dharapuram, and in execution of that decree brought the suit property to sale and purchased it as evidenced by the sale certificate, Exhibit A-1, dated 8th September, 1958. When he sought to take possession of the property, he was obstructed by the appellant herein. The case of the appellant was that the original owner of the property had orally sold the property to the second defendant for the dower due to her, that the second defendant in turn had sold the property to the appellant under the original of Exhibit B-3, dated 7th November, 1958, and that consequently the appellant became entitled to the property. The learned District Munsif of Dharapuram, in E. A. No. 1575 of 1958, passed an order, dated 19th June, 1959 dismissing the application. However, he held that even according to the first respondent, he was entitled only to an undivided share in the suit house and consequently he was not entitled to actual delivery of possession and therefore it was not necessary to go into the question of title of the obstructors or their vendor. Having come to this conclusion, the learned District Munsif pointed out:
That could be gone into when petitioner (first respondent herein) files a suit for partition for getting actual delivery of possession. It is sufficient at this juncture to say that petitioner (first respondent herein) as the Court-auction-purchaser is entitled to get only symbolical delivery of possession. It is not necessary to remove the obstruction offered by respondents for giving symbolical delivery of possession. Petition is therefore, dismissed with respondent's costs.
Pursuant to this order of the learned District Munsif, the first respondent herein actually obtained symbolical possession of the property as evidenced by Exhibit A-3, dated 6th July, 1959, certified copy of possession receipt. It is thereafter that the present suit was instituted by the first respondent for partition and separate possession of the first defendant's share in the property which he purchased in execution of the decree in S.C. No. 424 of 1951, referred to already. In defence to the suit, the appellant put forward several contentions. The first contention was that the original owner of the property orally sold the property to the second defendant and thereafter the second defendant as the owner of the property sold the same to the appellant under the original of Exhibit B-3 referred to already. The second contention was that the appellant and his vendor had perfected title to the suit property by adverse possession. The third contention was that the suit not having been instituted within one year from the date of the order evidenced by Exhibit A-2, it was barred by limitation under Article 11-A of the First Schedule to the Limitation Act, 1908. The learned District Munsif, who tried the suit, accepted all these contentions and dismissed the suit instituted by the first respondent herein on 5th August, 1965. However, on appeal preferred by the first respondent, the learned Additional Subordinate Judge of Erode on 17th February, 1968 in A.S. No. 19 of 1966 reversed the conclusion of the learned District Munsif on all these points and decreed the suit of the first respondent as prayed for. Hence, the present second appeal by the third defendant in the suit.
2. As far as the findings of the learned Additional Subordinate Judge, on the questions as to the plea of oral sale as well as the plea of adverse possession put forward by the appellant herein are concerned, in my opinion, they are essentially findings on questions of fact and they are amply supported by evidence. As far as the oral sale is concerned, the finding is one of pure fact and therefore so long as that finding is supported by evidence, its correctness cannot be challenged in the second appeal. As far as the question of adverse possession is concerned, once the oral sale is found against, the first and second defendants would be in the position of co-owners and unless ouster on the part of the second defendant is established, the appellant cannot succeed on the plea of prescription of title by adverse possession and such ouster has not been established in the present case. Therefore, the only question that survives for consideration in the second appeal is, whether the suit instituted by the first respondent is barred by Article 11-A of the First Schedule to the Limitation Act, 1908, as contended by the appellant or not.
3. I am clearly of the opinion that the conclusion of the learned Additional Subordinate Judge that the suit is not barred by limitation is correct. I have already extracted the terms of the order in Exhibit A-2. That order clearly shows that the learned District Munsif of Dharapuram who disposed of E.A. No. 1575 of 1958 did not go into the question of title and left open the question to be decided in a suit for partition that might be instituted by the present first respondent. On the other hand, the learned District Munsif directed symbolical delivery of possession to the first respondent herein, as he happened to be the purchaser of a share of the property and under Exhibit A-3 the first respondent actually obtained symbolical delivery of possession. Under these circumstances, the question for consideration is, whether the suit is barred by Article 11-A of the First Schedule to the Limitation Act, 1908. That Article is as follows:
________________________________________________________________________________Period of Time from which periodDescription of suit limitation. begins to run.________________________________________________________________________________11-A. By a person against whom an One year The date of the order,order has been made under the Code of Civil Procedure, 1908 upon an application by the holder of a decree for the posses-sion of immovable property or by the purchaser of such property sold in execution of a decree, complaining of resistance or obstruction to the delivery of possession thereof, or upon an application by any person dispossessed of such property in the delivery of possession thereof to the decree-holder, or purchaser, to establish the right which he claims to the present possession of the pro-perty comprised in the order.________________________________________________________________________________
4. From the very entry in column (1) of the Article, it is clear that the suit must be one to establish the right which the plaintiff claims to the present possession of the property dealt with by that order. The reason for this is that the relief which was denied to the plaintiff in the summary proceedings by the executing Court is the same as the one which is sought to be agitated in the suit subsequently filed. Order 21, Rule 103, Code of Civil Procedure states:
Any party not being a judgment-debtor against whom an order is made under Rule 98. Rule 99 or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property; but, subject to the result of such suit (if any), the order shall be conclusive.
5. Thus, it will be seen that the suit contemplated both by Article 11-A of the First Schedule to the Limitation Act, 1908 and the abovesaid rule must be one for the establishment of the right which the plaintiff claims to the present possession and that possession must relate to the property which was dealt with by the order made by the Court under Order 21, Rule 98 or Rule 101, Code of Civil Procedure. The rationale behind these provisions is that once the question has been agitated and decided on investigation by the executing Court, that decision should be final, unless a suit has been filed as contemplated by Order 21, Rule 103, subject to the limitation prescribed by Article 11-A of the First Schedule to the Limitation Act, 1908. The result is, the right which is sought to be agitated and enforced must be identical. In the present case, the first respondent herein sought to obtain physical possession of the entire property from the executing Court by having the obstruction offered by the appellant herein removed, while in the present suit, what the first respondent claims is a partition of the house and allotment of the first defendant's share to the first respondent as purchaser of the first defendant's right in execution of the decree passed in S.C. No. 424 of 1951 on the file of the Court of the District Munsif of Dharapuram. In view of this, it is clear that the relief and the property with reference to which the relief is claimed in the present suit are not identical with the relief and the property dealt with in the execution proceedings. However, Mr. V. Narayanaswami, learned Counsel for the appellant, brought to my notice a decision of the Privy Council in Baldeo v. Kanhaiyalal and Ors. (1920) 12 L.W. 408, contending that the same applies to the facts of the present case. In my opinion, this decision is not applicable to the facts of the present case. In that case, the plaintiff had a right of eight annas share in certain zamindari property and he sought physical possession of that eight annas share in execution proceedings. Having failed in his attempt to get physical possession of the property in execution proceedings, subsequently he instituted a suit for recovery of posses-S on of the identical property. In that context, a question arose whether Article 11-A of the First Schedule to the Limitation Act, 1908, applied and whether the suit was barred by limitation or not. The Judicial Committee came to the conclusion that in view of the reliefs claimed in execution proceedings and in the suit being identical and the suit not having been brought within the period of limitation prescribed by Article 11-A of the First Schedule to the Limitation Act, 1908, the said suit was barred by limitation. In the present case, as I have pointed out already, the relief claimed by the first respondent in E.A. No. 1575 of 1958 was for removal of obstruction offered by the appellant herein and for taking possession of the entire suit property. On the other hand, in the present suit the relief claimed by the first respondent is one for partition of the suit house and for allotment of the share of the first defendant in the suit house to the first respondent, as he happens to be the purchaser of the first defendant's interest in the suit house. Consequently, the relief claimed in the two proceedings is not he same and therefore Article 11-A of he First Schedule to the Limitation Act, 1908, has no application to the present suit.
6. That is the view taken by a Bench of this Court in Shammugham Pillai v. Panchali Ammal and Ors. : AIR1926Mad683 In that case also in the execution proceedings as well as in the earlier suit the claim was for recovery of possession of the entire suit property, while in the subsequent suit which gave rise to the second appeal disposed by the Bench the claim was for partition and separate possession of the plaintiff's share. With reference to such a situation a Bench of this Court held that Article 11-A of the First Schedule to the Limitation Act, 1908 had no application and therefore the suit was not barred by limitation. Before the Bench also reliance was placed on the decision of the Judicial Committee 10 which I have already made a reference. This Court pointed out:
Here, as in other cases where the application of Article 11-A of the Limitation Act is in question, the important thing is to see, as the Judicial Committee did in Baldeo v. Kanhaiyalal (1920) 12 L.W. 408, what was asked for in the claim proceedings and what is asked for in the present suit. The law provides ut sit finis litium that a person defeated in claim proceedings shall not ask for the same relief that was denied him in those proceedings which are summary, except in a suit filed within a year of the order. Under Order 21, Rule 103, Civil Procedure Code, a party against whom an order for possession is made under Rule 101 may institute a suit to establish his right to present possession of the property, but on his failing to do so, the order becomes final.
From the fuller report of the Privy Council case in Baldeo v. Kanhaiyalal (1920) 12 L.W. 408, it appears that the village which belonged to a joint family was on the death of the head of the family registered in the names of his two sons, and that the appellant both in his application for possession under Rule 97 and in his suit asked for actual possession of the eight annas share of one of the sons whose interest he purchased. Their Lordships observed that it was too clear for argument that on both occasions he asked for exactly the same relief, and his suit brought more than one year after the disposal of his claim was thus time-barred.
The facts of the case before us are different. Both in the claim proceedings and in the prior suit, O.S. No. 407 of 1915 the plaintiff asserted his right to have his title to actual possession of the house declared; but, in the present suit, he asks for a partition, after allowing for good and bad qualities of the family properties and for delivery of a moiety to him. In making such a partition it is not necessary to go behind or re-open the decisions in the prior proceedings. The plaintiff is only exercising the equitable right of the coparcener whose share he has purchased to demand a partition at any time. Article 11 (a) is thus not a bar to this suit, and as the relief the plaintiff now asks for in a suit based on the cause of action of his purchase on the undivided share of a member of a joint family would be inconsistent with what he asked for in the prior suit, in which the cause of action was the order on the claim petition, there is equally no bar of res judicata under Section 11, Civil Procedure Code, or by Order 2, Rule 2.
I am clearly of the opinion, that the above decision directly applies to the facts of the present case and in the light of that decision, it cannot be held that the present suit instituted by the first respondent for partition and separate possession of the first defendant's share to him is barred by Article 11-A of the First Schedule to the Limitation Act, 1908.
The matter may be looked at from another angle. In Kowuru Lakshminathiraju and Ors. v. Jagani Venkataswami and Ors. : AIR1946Mad324 , it was observed:
There is yet another rule which is laid down by this Court and that is, if the relief that is asked in the later suit is not one which the plaintiff could have got in the execution department, then the fact that he did not pursue the remedies given under the execution chapter will not bar the later suit.
The relief prayed for in the present suit is one for partition and for recovery of possession of the share allottable to the first defendant whose right the first respondent herein had purchased. This relief, the first respondent could not have asked for and obtained in the petition preferred by him under Order 21, Rule 97, Code of Civil Procedure. As a matter of fact, realising this position alone, the Executing Court itself in Exhibit A-2 provided that the first respondent herein could file a suit for partition and for recovery of possession of the first defendant's share in the suit property and in that suit the rival contentions of title put forward by the parties could be gone into.
Having regard to this legal position, I am clearly of the opinion that the conclusion of the learned Additional Subordinate Judge that the suit instituted by the first respondent herein is not barred by limitation under Article 11-A of the First Schedule to the Limitation Act, 1908, is correct and consequently the second appeal fails and is dismissed with costs of respondents 5 to 12, legal representatives of the first respondent. No leave.