Authored By : Francis Maclean, Banerjee

Francis Maclean, C.J.

1. I think the Subordinate Judge in this case is in error.He decided the case upon the authority of the case of Krishna Lall Dutt v.Radha Krishna Surkhel I.L.R. 10 Cal. 402 [LQ/CalHC/1884/16] but that case has been reversed by thedecision in the case of Joggobundhu Mitter v. Purnanund Gossami I.L.R. 16 Cal.530 and the latter case is certainly consistent with the principle of the casesof Joggobundhu Mukerjee v. Ram Chunder Bysack I.L.R. 5 Cal. 584 Lokessur Koerv. Purgun Roy I.L.R. 7 Cal. 418 Seen v. Muttusami I.L.R. 10 Mad. 53 and ShamaCharan Chatterji v. Madhab Chandra Mookerji I.L.R. 11 Cal. 93 [LQ/CalHC/1884/131] .

2. It is urged by the respondents Vakil that this case isdistinguishable from those to which I have referred by reason of the fact thatin some of those cases the tenants were in possession, in which case Section319 of the Code of Civil Procedure was the proper one under which to take or togive symbolical possession. He says that those cases are distinguishable fromthe present by reason of the fact that in this case the judgment-debtor was inpossession, and therefore actual possession ought to have been given underSection 318 of the Code, and not symbolical possession under Section 319. Butbe that as it may, we have the fact which cannot be got over, that possession,call it symbolical possession if you will, was given by a Civil Court in thiscase (sic)the plaintiff, and in the case of Lokessur Koer v. Purgun Roy I.L.R.Cal. 418 it was laid down that the formal possession given by a Civil Courtunder an execution operates in point of law and of fact, as between theparties, as a complete transfer of possession from one party to the other. Inthis case, it seems clear that symbolical possession which in law ispossession, was given on the 8th November 1881. It may be that it was wronglygiven by reason of the fact that actual possession ought to have been givenunder Section 318 of the Code, but still possession was given to the plaintiffby a Civil Court; and, under the circumstances, it seems to me that the periodof limitation must begin to run from the date of that possession being given,which was the 8th November 1881, in which case the plaintiff is within time. Ithink the appeal must be allowed, and the case remanded to be tried on itsmerits. The costs will abide the result.

Banerjee, J.

3. I am of the same opinion. The learned Vakil for therespondent seeks to distinguish the present case from the case ofJoggo-(sic)mndhu Mitter v. Purnanund Gossami I.L.R. 16 Cal. 530 [LQ/CalHC/1889/41] in this way,that whereas, in that case the property in dispute was in the possession oftenants, and could be taken possession of by the purchaser at the execution saleonly under Section 319 of the Code of Civil Procedure, the property in disputein he present case was in the actual possession of the judgment-debtor himself,and so possession of it should have been taken by the execution-purchaser, notunder Section 319 but under Section 318 of the Code; and as the plaintiff, theexecution-purchaser, did not proceed to take possession under the lastmentioned Section as he ought to have done, formal or symbolical possessiongiven to him under Section 319 mast be treated as a nullity and as having noeffect in giving him a fresh cause of action by reason of the judgment-debtorcontinuing in possession, so far as the law of limitation was concerned. But onreferring to the case of Joggobundhu Mitter v. Purnanand Gossami I.L.R. 16 Cal.530 I find that neither the learned Judges, who referred the cases to a FullBench doubting the correctness of the decision in the case of Krishna Lall Duttv. Radha Krishna Surkhel I.L.R. 10 Cal. 102 nor the learned Judges who composedthe Full Bench, laid any stress, in their decisions, upon the distinction onwhich reliance is placed by the learned Vakil for the respondent. Thecorrectness of the decision in the case of Krishna Lall Dutt v. Radha KrishnaSurkhel I.L.R. 10 Cal. 102 was doubted in the referring order, and the decisionof the Full Bench accepts the view of the referring Judges as may be gatheredfrom the following passage: "The case noticed by the Division Bench, whichreferred this question to the Full Bench, Krishna Lall Dutt v. Radha KrishnaSurkhel I.L.R. 10 Cal. 402 [LQ/CalHC/1884/16] was decided without reference to the earlier FullBench case, which was apparently not brought to the notice of the Judges."Moreover, in the cases of Lokessur Koer v. Purgun Roy I.L.R. 7 Cal. 418 and ShamaCharan Chatterji v. Madhab Chandra Mookerji I.L.R. 11 Cal. 93 [LQ/CalHC/1884/131] which were bothcases in which symbolical possession had been taken by the decree-holder ofproperty of which the judgment-debtor was actually in possession, and of which,therefore, actual possession could have been taken by the decree-bolder, it washeld, notwithstanding that fact, that the formal possession given to thedecree-holder was sufficient possession as against the judgment-debtor. As forthe case of Lakshmian v. Moru I.L.R. 16 Bom. 722 relied upon for therespondent, it is enough to say that it does not decide the present question.Mr. Justice Telang points out at the conclusion of his judgment that forseveral reasons it was not necessary to determine the question now raised. Ithink the weight of authority is clearly in favour of the view contended for bythe learned Vakil for the appellant. And reason also appears to me to be infavour

.

Huri Mohan Shaha vs.Baburali (16.03.1897 - CALHC)