S.N. Modi, J.
1. This first appeal by the defendants is directed against the judgment and decree of the Civil Judge. Aimer in a suit for possession and mesne profits.
2. The dispute relates to a part of the house bearing old No. A. M. C. 7/261 and new number 14/249 situated in Gujar Grawadi in Ajmer fully described in paras 6 and 13 of the plaint, as also in the site plan attached to the plaint -- portion marked red colour.
3. The suit out of which this appeal has arisen was instituted on 20th March, 1969, by plaintiffs Rameshwar Lal and Norat Mal against eleven defendants. Plaintiffs and defendants 7 to 11 are related to one another. Their relationship would be clear from the following pedigree table:--
SETH BASANTI RAM
(died on 19-6-62)
|
__________________________________________________________________________
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Rameswarlal Norat Mal Mst. Ratan Bai
Plff. 1 Plff. 2 married to
Laxminarain
|
____________________________________________________________________________________________
| | | | |
Ramswaroop Kishenswaroop Prakashchand Mst. Radha Bai Mst. Kamla Bai
D. 7 D. 8 D. 9 D. 10 D. 11. 4. Similarly defendents 1 to 6 are related to one another. Their pedigree table is as under:
BADRI PRASAD (died in 1942) = Mst. KESAR BAI (died in 1962)
MOTILAL
(died in 1930)
____________________________________________________
| | |
Trijugi Narain Mst. Trive Bai (D. 2) Suraj Narain
married to
Dinanath (D. 1)
|
_____________________________________________________________
| | | |
Laxminarain D. 3. Rajendra D. 4. Mst. Ram Bai D. 5 Mst. Nirmla Bai D. 6
5. In order to decide the points arising for decision in this appeal it is necessary to set out in brief the facts of this case. Badri Prasad owned two houses adjoining to each other including the suit house. Both these houses were mortgaged on 13-8-1944 for Rs. 25,000/- by Badri Prasad's grandsons. Trijuginarain and Surajnarain with Seth Basantiram. The latter filed a suit for sale of the mortgaged property and obtained preliminary decree on 10-3-1954 and final decree on 11-3-1955 from the court of Sub-Judge, Aimer. Sometime in 1956 Badri Prasad's widow Mst. Kesar Bai instituted a suit claiming half share in the mortgaged property. On 31-7-1961 the suit was decided and it was held that though Mst. Kesar Bai was entitled to half share in the mortgaged property she was bound by the mortgage and would get her share only after the mortgage decree was satisfied and if something was left thereafter. It was also ordered that the mortgage amount be realised by first selling half share in the mortgaged property and if the decretal amount still remained due the other half be sold. Accordingly, half share in both the mortgaged houses was auctioned by the court of the Senior Civil Judge, Aimer and the mortgagee Seth Basanti Ram himself purchased it on 15-7-1961 for Rs. 10,500/- at the auction sale and obtained a sale certificate in respect thereof on 19-3-1962. The other half was put to auction on 15-1-1963 after the death of Seth Basantiram. This half portionwas purchased by Seth Basantiram's son Norat Mal for Rs. 11,000/- and sale certificate thereof was granted in his favour on 28-5-1963. Auction-purchasers viz., the plaintiffs thereafter applied for possession of the two houses purchased by them and they were put in symbolical possession thereof on 5-4-1963 and 30-7-63 as the tenants were reported to be in possession of the two houses. One of the occupants was Dinanath D-1 who possessed the disputed premises. The plaintiffs filed a suit against him for eviction treating him as a tenant, That suit was dismissed. The plaintiffs went in appeal but that too was dismissed. Ultimately, the plaintiffs brought the present suit on the basis of their title and claimed possession and mesne profits for the last three years preceding the date of the suit at the rate of Rs. 40/- p. m.
6. Defendants 7 to 11 allowed the suit to proceed ex parte against them. Defendants 1 to 6 resisted the suit and traversed all material allegations made in the plaint. They pleaded ownership by adverse possession on the ground that they had been in exclusive continuous and peaceful possession for the last 25 to 28 years. It was pleaded that they were never the tenants of the plaintiffs and that since no application under Order 21, Rule 95, Civil Procedure Code was filed within time, the suit was not maintainable under the provisions of the Civil Procedure Code. The plea of limitation was also raised on the ground that theplaintiffs or their predecessors in title had not been in possession within 12 years preceding the date of the institution of the suit. They denied that the plaintiffs were entitled to recover any mesne profits from them as also that the property could fetch a profit of Rs. 40/- p. m. by way of rent or otherwise. Some more pleas were raised which would appear from the following issues struck by the lower court :--
1. Whether the defendants Nos. 7 to 11 have executed a Deed of Release in favour of the plaintiffs on 23-5-1965 as alleged in para 3 of the Plaint ?
2. Whether the decrees referred to in para 7 of the plaint are not binding on the defendants for the reasons alleged in para 7 of the written statement ?
3. Whether the suit property is capable of fetching rent or mesne profits at Rs. 40/- per month ?
4. Whether the defendant No. 2 has a share in the suit property and whether her possession and that of the defendants Nos. 1, 3 and 4 is adverse to the plaintiffs and their predecessors-in-title ?
5. Whether the suit is barred by time for the reasons stated in paras 20 and 21 of the written statement ?
6. Whether the suit is bad for mis-joinder of the defendants Nos. 5 and 6 and causes of action?
7. To what relief, are the plaintiffs entitled
7. All the issues except issue No. 2 which related to binding nature of preliminary and final decrees in the mortgage suit were decided in favour of the plaintiffs. The learned Counsel for the appellants has not challenged the findings on issues Nos. 1 and 6. He confined his arguments to issues Nos. 3, 4 and 5 only,
8. It may be stated at the very outset that the plaintiffs have succeeded in proving their title. They were mortgagees of the premises in dispute which were subsequently purchased by them at the court sale held in execution of the mortgage decree obtained by them. The sale certificates Ex. 3 and Ex. 4 standing in the names of Basantiram and Noratmal respectively leave no doubt about the title of the plaintiffs. It is further clear that the defendants have no title to the suit premises and their whole case was that they had perfected their title by adverse possession.
9. The learned Civil Judge dealing with the question of adverse possession relied upon the statements of the defendants. Triveni Bai D. W. 1 and Laxminarain D. W. 2, both of whom admitted that they were permitted to live in the suit premises by Badridas, the grandfather ofMst. Triveni Bai. Keeping in mind the close relationship between Badridas and Triveni Bai the learned Civil Judge held that the possession of the defendants was not adverse but permissive in nature. Learned Advocate for the appellants has taken me through the evidence on record but he was unable to point out anything which may be said to throw any doubt on the above finding of the learned Civil Judge. Where possession is proved to be in its origin to be of permissive character it will be presumed that it continued to be of the same character until and unless something occurred to make it adverse. The burden, therefore, lav on the defendants to show how and when their possession became adverse. There is no evidence to show that the defendants asserted any hostile title to the suit premises to the knowledge of the true owners' at any time before the present suit or in any case before the symbolical possession was delivered to the plaintiffs. The defendants have thus failed to establish by clear and affirmative evidence the change in the character of their possession for a period of 12 years or more. The symbolical possession was delivered to the plaintiffs within 12 years of the filing of the suit. The suit is therefore within time under Article 65 of the Limitation Act, 1963.
10. Learned Advocate for the appellants has contended that the plaintiffs had nowhere asserted that the defendants were in permissive possession. To hold the suit within limitation on the basis of permissive possession would mean to give effect to a case which the plaintiffs had not put forward. He has further contended that on the case set up by the plaintiffs and on the facts appearing on the record, it is Article 64 of the Limitation Act, 1963, which is applicable and since the plaintiffs have failed to prove their possession within 12 years of the date of the suit, the suit is barred by time. The learned Advocate relied upon the decisions in Siddik Mahomed Shah v. Mt. Saran, AIR 1930 PC 57 (1) and Daryasingh Harisingh v. Kalma Nihala, AIR 1961 Madh Pra 179.
11. In my opinion, it is wrong to say that the suit has been held within time on the basis of permissive possession. It were the defendants who set up the plea of adverse possession but they failed to prove the same. On the contrary, in their attempt to prove adverse possession, they proved by their own evidence permissive possession. The proof of permissive possession by their own evidence relieved the plaintiffs from proving that they were in possession within 12 years from the date of the suit, for, Badridas who had put the defendants into permissive possession was none else than thepredecessor-in-title of the mortgagors from whom the plaintiffs derived their title. The principle laid down by the Judicial Committee in Siddik Mahomed Shah's case, namely that no amount of evidence can be looked into upon a plea which was never put forward has no application to the facts of the present case.
12. The next contention of the learned advocate that the suit is governed by Article 64 and not Article 65 of the Limitation Act, 1963, is equally unsound. Article 64 runs as under:--
Description of suitPeriod of limitationTime from which period begins to run.
64.For possession of immoveabla property baaed on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed.twelve yearsThe date of disposse sion
The term 'dispossession' applies when a person comes in and drives out another from possession. In the present case, the dispossession of the plaintiffs as envisaged by Article 64 was neither mentioned in the plaint nor established by evidence. Their Lordships of the Supreme Court have laid down in, Shivagonda v. Rudragonda, AIR 1970 SC 453 held that Article 142 of the Indian Limitation Act, 1908, which corresponds with Article 64 of the Limitation Act. 1963, has no application where the suit is not against the defendant on the ground that he has been dispossessed by the defendant. Article 64 in the circumstances is wholly inapplicable. The decision in AIR 1961 Madh Pra 179 relied on by the learned Counsel is distinguishable on facts and not applicable to the present case. In any case, even it Article 64 is made applicable, the suit is within time as the plaintiffs have succeeded in proving the constructive possession of their predecessors-in-title within 12 years before the date of the institution of the suit.
13. The next important point urged on behalf of the appellants and on which considerable stress was laid is that the proper and only remedy for the plaintiffs to get physical possession of the suit premises from the defendants was under Order 21, Rule 95, Civil Procedure Code and not by way of a separate suit. It is contended that the suit is barred under Section 47. Civil Procedure Code. Developing the point, the learned Counsel emphasised that the auction-purchaser is entitled to symbolical possession under Order 21 Rule 96. Civil Procedure Code where the property sold is in occupancy of a tenant or other person entitled to occupy the same. The defendants being in possession of the suit premises as licencees of the judgment-debtors, Order 21, Rule 96, Civil Procedure Code had no applicability and the plaintiffs auction-purchasers in the present case were entitled to actual physical possession under Order 21, Rule 95, Civil Procedure Code, The learned Counsel contends that the delivery of symbolical possession where actual possession ought to have been delivered is a nullity as symbolical possession is not equivalent to actual possession. According to him the proper remedy open to the plaintiffs was to apply under Order 21, Rule 95, Civil Procedure Code for delivery of actual possession before the executing court and the separate suit for the said purpose is barred under Section 47, Civil Procedure Code. He relied on Khetra Mohan v. Jogendra Chandra, AIR 1918 Cal 350, Narayanrao v. Chunnilal, AIR 1953 Nag 236 and Kalusingh v. Gobindsingh, AIR 1959 Punj 468.
14. Before I deal with the above question it is necessary to point out that there was a conflict of judicial opinion on the point whether an application for delivery of possession under Order 21, Rule 95, Civil Procedure Code related to execution, discharge or satisfaction of the decree and fell within the ambit of Section 47, Civil Procedure Code. One view was that an application under Order 21, Rule 95, Civil Procedure Code did not involve a matter relating to execution, discharge or satisfaction of the decree, for, the decree is satisfied as soon as the sale is confirmed and a sale certificate has been issued. The remedy therefore for the auction purchaser for possession of the property Purchased by him in court sale was to file a separate suit. This view was taken by the High Courts of Allahabad, Bombay, Patna. Lahore and Rangoon in Mst. Suraj Dei v. Mst. Gulab Dei, AIR 1955 All 49 (FB). Savlaram v. Vishwanath, AIR 1945 Bom 386, Tribeni Prasad Singh v. Ramasray Prasad, AIR 1931 Pat 241 (FB). Firm Ramsingh Gopalsingh v. Firm Abdullah Habib Ullah, AIR 1944 Lah 402 (FB) and Ko Taik On v. N.S.A.R., AIR 1936 Rang 298. This High Court followed the above view in Mohanlal v. Bhagwan Chand ILR (1966) 16 Raj 77 and Davashanker v. Khubchand 1973 WLN 369 = (AIR 1973 Raj 304).
15. On the other hand High Courts of Madras, Calcutta, Kerala, Madhya Pradesh and Nagpur in M.S.M.M. Meyyappa Chetty v. Chidambaram Chetty AIR 1920 Mad 979, Kailash Chandra v. Gopal Chandra, AIR 1926 Cal 798 (FB), State of Tranvancore-Chochin v. Lekshmi Ammal, AIR 1958 Ker 309, Ramratan v. Lukkimal AIR 1959 M. P. 348 and Anant Narayan v. Brijmohan Chhotulal, AIR 1956 Nag 93 took the view that the execution of a decree-holder's decree cannot be said to be satisfied until in one case, he has received the purchase money paid into court, and in the other case until he be put into possession of the property of his judgment-debtor which he has purchased and which represents money. This conflict is now set at rest by the authoritative pronouncement of the Supreme Court in Harnandrai v. Debidutt, AIR 107,1 SC 2423. In the case before the Supreme Court the question arose whether after an auction sale in execution of a decree a decree-holder auction purchaser can move the executing court for delivery of vacant possession of the immovable property sold to him or whether he has to file a separate suit. Answering the question their Lordships observed:
'The question that has been raised by the appellant is one which has formed the subject matter of a long series of decisions which unfortunately have followed two divergent streams. There is on the one hand a Full Bench decision of the Calcutta High Court in ILR 53 Cal 781 = (AIR 1926 Cal 798) (FB) followed by the Madras High Court while on the other hand there is the decision of the Lahore High Court in ILR (1945) 26 Lah 252 = (AIR 1944 Lah 402) (FB) which has been followed in various Full Bench decisions by the Allahabad High Court and also by the Patna High Court and the Bombay High Court. ............'
'The appellant relied on the Full Bench decision of the Lahore High Court. We have carefully gone through the various decisions cited before us and we find ourselves in agreement with the opinion of the Full Bench of the Calcutta High Court in Kailash Tarafdar's case, ILR 53 Cal 781 = (AIR 1926 Cal 798) (FB). If a confirmation of the sale would finally terminate all questions as to execution of the decree it is difficult to appreciate why the Legislature would frame such rules as Rules 95 to 102 under Order XXI of the Code of Civil Procedure. We are in respectful agreement with G.K. Mitter, J., that the legislature must have thought that the duty of the Executing Court should not end with the confirmation of the sale and it is because the legislature thought 'that, the auction-purchaser should have the right of applying for possession under the provisions of Rule 95 and Rule 96 that proceedings for obtaining possession were included in the catena of rules relating to the execution of the decree.
Section 47 in our view should be construed liberally. As far back in 1892 (1892) 19 Ind App 166 (PC) the Privy Council spoke strongly in favour of putting a liberal construction on Section 244 of the Code of Civil Procedure of 1882 which corresponded to present Section 47 of the Code of 1908. The Privy Council reiterated this in Ganapathy v. Krishnamachariar, 45 Ind App 54 = (AIR 1917 PC 121). If a liberal construction be put upon Section 47 it is difficult to understand why a decree-holder who has been a party to the decree will shed his character as such party merely upon purchasing the property at the execution sale. After all, a decree-holder purchases the property in execution of his decree with the permission of the court. There is no reason why he should not retain his character of a party to the suit until the delivery of Possession to him of the property purchased by him. Having regard to this consideration, if any question is raised by the judgment-debtor at the time of delivery of possession concerning the nature of the rights purchased and if the judgment-debtor offers any resistance to delivery of possession the question must be one which in our view relates to the execution, discharge and satisfaction of the decree and arises between the parties to the suit.
Speaking of the two conflicting views on this section the learned commentator of the 13th Edition of Sir Dinshaw Mulla's Code of Civil Procedure makes the following observation:
'The cases in which it has been held that and auction-purchaser even if he is the decree-holder is not a party to the suit, require consideration in view of the ruling of Judicial Committee that such an auction-purchaser is a party to the suit.'
The decision, of the Judicial Committee which the learned commentator had in mind is that of Ganapathy v. Krishnamachariar, 45 Ind App 54 = (AIR 1917 PC 121).
It is important to remember that after the decision of the Privy Council in Ganapathy's case, 45 Ind App 54 = (AIR 1917 PC 121) there has been an amendment of Section 47 as a result of which the purchaser at a sale in execution of a decree, whether he is the decree-holder or not, is unquestionably a party to the suit for the purpose of Section 47. Having regard to this, all questions arising between the auction-purchaser and the judgment-debtor must in our view be determined by the Executing Court and not by a separate suit.' (Paras 2, 5, 6, 7 and 8).
16. In view of the above decision of the Supreme Court, the view taken by this Court in 1973 WLN 369 = (AIR 1973 Raj 304) (supra) and ILR (1966) 16 Raj 77 (supra) must be deemed, to have been overruled. It is now well settled that no separate suit lies for delivery of possession of the property purchased by the decree-holder auction-purchaser at court sale and he must apply to the Executing Court under Rule 95 or Rule 96 of Order 21 as the case may be, for delivery of possession of such property.
17. In the present case, the question involved is altogether different. The plaintiffs who are decree-holder purchasers had applied to the Executing Court and had admittedly obtained symbolical possession of the property purchased by them before instituting the present suit. They bona fide believed at the time of delivery of symbolical possession that the defendants were in occupation of the suit premises as tenants and they therefore rest contented with the symbolical possession and did not press for vacant possession. This is apparent from the suit for eviction on the basis of tenancy filed by them earlier to the present suit. It is only when their suit for eviction on the basis of tenancy failed that they brought the present suit.
18. The question that calls for determination is whether a suit for actual physical possession is barred under Section 47, C. P. C. where symbolical possession is taken by a decree-holder auction purchaser in a case where he was entitled to actual possession under Order 21, Rule 95, C. P. C. In Jagdish Nath Roy v. Nafar Chandra, AIR 1931 Cal 427 a decree for khas possession in respect of certain immovable property was passed in favour of the decree-holder. An execution petition was filed by the decree-holder with the prayer for khas possession. The peon of the executing court though directed to deliver khas possession to the decree-holder by removing any person bound by the decree but he delivered only symbolical possession by fixing up a bamboo accompanied with the beating of drum. The decree-holder gave a receipt acknowledging that he had received symbolical possession of the property. The decree-holder did not raise any objection on the ground of his not having received khas possession in accordance with the terms of the writ issued by the executing court and the executing court recorded in the ordersheet:
'Possession delivered on the decretal land.'
Later on about two years thereafter the decree-holder made a second application for execution praying for khas possession. The judgment-debtor objected that nosuch application lav on the decree for possession had been executed before and possession had been already taken by the decree-holder in the previous execution application. This objection was upheld by the executing court as well as by the first appellate court. The case ultimately went before Rankin, C. J. and Mukherjee. J. in second appeal. Mukherjee J., who delivered the judgment observed:
'The case therefore seems to me to be one of those cases in which a decree-holder having armed himself with a decree in the first instance by obtaining symbolical possession only with some ulterior object of his own, and thereafter subsequently and as a second instalment asks for khas possession. The question is whether such a course is permissible under the law. I am of opinion that it is not.'
This case came up for consideration by the Supreme Court in Shew Bux v. Bengal Breweries Ltd., AIR 1961 SC 137. Their Lordships of the Supreme Court expressed their complete agreement with the observations of Mukherjee, J., noted above. The case approved by their Lordships of the Supreme Court is no doubt a case of a decree-holder entitled to actual possession, under the decree, but in my opinion the same principle would be applicable to a case of a decree-holder auction-purchaser entitled to actual possession of the property purchased by him at a court sale. If the decree is deemed to be fully satisfied on delivery of symbolical possession where the decree-holder is entitled to actual possession under the decree, I see no reason why the execution proceedings should not be deemed to have come to an end on the delivery of symbolical possession to the decree-holder auction-purchaser who is entitled to actual possession. In my opinion Order 21, Rule 35 and Order 21, Rule 96. Civil Procedure Code both stand on the same footing and in both the cases the only remedy for obtaining actual possession is by way of a separate suit. I would however like to make it clear that a decree-holder or a decree-holder auction-purchaser, as the case may be, to whom the peon of the court erroneously delivers symbolical possession can refuse to accept such possession and ask the Executing Court to deliver actual possession to which he is entitled to. But if he accepts symbolical possession and feels contented with it he cannot subsequently ask the Executing Court for delivery of actual possession on the ground that he erroneously accepted symbolical possession. In the present case if the conduct of the plaintiffs had indicated a repudiation of the symbolical possession which the peon had given them or at least as disclosing a desire on their part not to be content at that time with the kind of possession which the peon had given them, I should be prepared to holdthat they ought to have gone to the executing court to have their remedy and this suit was not maintainable. But the conduct o the plaintiffs in the present case clearly reveals that they with all bona fides felt contented with the delivery of symbolical possession at the time the peon delivered the same. In these circumstances, I am unable to agree with the learned Counsel for the appellants that the present suit was not maintainable under Section 47. Civil Procedure Code. In support of my view, I place reliance on Radhalal v. Chabilchand, AIR 1955 Nag 79, Kattil Raman v. Vadakke Poduvath Devaki, AIR 1969 Ker 121. The contrary view taken in the cases cited by the learned Counsel for the appellants does not lay down good law in view of the Supreme Court decision noted above.
19. It is next contended that there is nothing to indicate on the record that symbolical possession was delivered to the plaintiffs of the house in which the suit premises are located. Suffice it to say that neither any issue was framed on the point, nor was it urged in the court below nor a ground in this connection was taken up in the memo of appeal. I see no good ground to allow the appellants to urge this point for the first tune before this Court in appeal.
20. Lastly, it is contended that the court below should not have made the appellants liable for the mesne profits. The quantum of mesne profits at the rate of Rs. 40/- per month has not been challenged before me. What is contended is that, because the defendants at no time previous to the institution of the present suit were in wrongful possession the plaintiffs cannot claim mesne profits. 'Mesne profits' of property are defined as profits which a person in wrongful possession of the property actually receives or might have with ordinary diligence received therefrom (See Section 2(12), C. P. C.). It would appear from this definition that the mesne profits are in the nature of damages for being deprived of the benefit which the person in possession derives from the property. The object of awarding mesne profits is as was pointed out in Abdul Ghafur v. Rajaram, (1901) ILR 23 All 252 at page 255 to compensate the person entitled to be in possession for his having been kept out of possession and thus deprived of the profits of the property. It follows therefore that the person who is entitled to actual possession can rightly claim mesne profits. In the present case the plaintiffs became entitled to actual possession on the dates when the sales in their favour were confirmed or in any case when the symbolical possession was delivered to them. The dates on which confirmation of the sales took place are not available on the record but the sales must havebeen confirmed some time, before the sale certificates were issued. The sale certificates Ex. 3 and Ex. 4 were issued on 19-3-62 or 28-5-63. The symbolical possession was delivered on 5-4-63 and 30-7-63. The plaintiffs have been granted mesne profits from 20-3-66 and I find no fault in it.
21. The appeal must fail and is dismissed with costs to the plaintiff-respondents.