Richard Garth, C.J. and Beverley, J.
1. We think that the learned Judge has made a mistake in this case.
2. It is admitted that the defendant's purchase was prior to that of the plaintiffs'; but the plaintiffs' ease was, that as they were in possession of the property from the time of their purchase in September 1866 up to the year 1879, they have acquired a statutory title by limitation as against the defendants.
3. In answer to this the defendants say that, under their decree against Amrit Lal the plaintiffs' vendor in the year 1873, they obtained symbolical possession of the property in the usual way by process of execution, and the lower Court has held that this proceeding had the effect of vesting a sufficient possession in the defendants to prevent the plaintiffs from setting up as against them a statutory title by limitation.
4. We think that this is clearly a mistake. Upon reference to the Full Bench case of Juggobundhu Mukerjee v. Ram Chunder Bysack I.L.R. 5 Cal. 584 : 5 C.L.R. 548 in which the effect of such a proceeding in execution was fully considered, we held that the delivery in execution of symbolical possession, as between the parties to the suit, amounted to an actual transfer of possession from the defendants to the plaintiffs; that being the only means by which, as between the parties, the Court could effectuate and carry out its own decree.
5. But we especially guarded ourselves from saying that symbolical possession would operate as a transfer of possession as against third persons, who were no parties to the suit; and the reason for this is very plain.
6. A suit might be brought, and a decree obtained, by a person who has neither title nor possession, against another person, who has neither title nor possession; and if the delivery of symbolical possession in such a suit were to constitute actual possession as against the true owner, who had been in actual possession, for many years, and who was no party to the suit, it would operate most unjustly.
7. It will be found that another case, to which we have been referred, viz., Doyanidhi Panda Kelai Panda 11 C.L.R. 395 is to the same effect.
8. As against the plaintiffs, therefore, who were no parties to the suit, we consider that the symbolical possession, which the defendants obtained in 1873, was no possession at all.
9. But then the question remains, whether, as a matter of fact, the plaintiffs have, as against the defendants, acquired a statutory title by adverse possession? And as the evidence which they were proposing to bring forward upon that point was considered in the view taken by the Judge to be unnecessary, we must send the case back under Section 566 of the Code, in order that the question, whether the plaintiffs have obtained a statutory title against the defendants by adverse possession, may be properly tried. Both parties will be at liberty to adduce evidence on this point, and the Court below will return its finding to this Court, with the evidence taken as early as possible.
10. We will then finally decide the appeal, and the question of costs will be of course reserved.