P L D 1957 Dacca 386 (PLP)

CHOWDHURY, J.‑

In this appeal, by the defendant No. 1 in a suit for possession on declaration of plaintiffs title in the suit land, questions that arise for consideration are : (1) whether the defence of the defendant No. 1 is barred under section 47 as well as under section 11 of the Code of Civil Procedure ; and (2) whether the suit is barred by limitation and adverse possession. Shortly stated, the facts relevant to the points raised are as follows: One Abdul Gafur was in possession of the suit land. He had two rights ‑Osat Nimhowla in his own name and Nimhowla right in the benami of one Abdul Sikdar. While in such possession he mortgaged his Osat Nimhowla to Keshab Mukherjee, the predecessor‑in‑interest of the plaintiffs, in the benami of one Tarak Chakravorty for Rs. 200 in the year 1924. It was a simple mortgage. Tarak Chakravorty purchased the Osat Nimhowla right on the 5th of August 1933, in execution of his mortgage decree. After his death Keshab, the beneficial owner took symbolical possession of the suit land through Court on the 21st of December 1937. On his death plaintiffs went to take actual possession in the month of Jaistha and Ashaar, 1353 B. S., corresponding to 1947, but they were not allowed to possess the land. Hence they filed the suit on the 19th December 1949, that is, two days before the expiry of twelve years from the date of the delivery of possession. The contention of the contesting defendant No.1 is that she was a mortgage of Abdul Gafur's Nimhowla right by simple mortgage bond, dated the 23rd Jaistha, 1333 B. S. (that is in or about the year 1926 A. D.); that she also purchased the Nimhowla in rent sale on the 5th of April 1935, in the benami of one Lal Behari Bose, and took delivery of possession through Court on the 27th of July 1935, and since then is in possession of the suit land for over twelve years. She also contends that she subsequently purchased the suit land in execution of her mortgage decree, and took delivery of posses sion through Court. She, therefore, pleaded bar of limitation and adverse possession. The trial Court dismissed the suit holding that the suit was barred by limitation under Article 142 of the Limitation Act, and adverse possession of defendant No. 1 for over twelve years, and that the claim of defendant No. 1 is neither barred under section 47 of the Code of Civil Procedure nor by res judicata. On appeal, the learned Additional District Judge, Bakarganj, reversed that decision, and decreed the suit holding that though the two interests are in separate existence, they being co‑extensive in the self‑same land, the mortgage decree of the plaintiff and the execution proceedings thereunder to which defendant No. 1 was a party, have affected her interest and her possession, that her claim in the present suit is barred under section 47 of the Code of Civil Procedure and by res-judicata, and that the period of limitation would run against plaintiffs from the 21st of December 1937 the date of their delivery of possession, and so the suit having been filed on the 19th of December 1947, was not barred by limitation and adverse possession. The title in the property sold in Court sales, vests on the purchaser, from the date of the sale. After the sale, the decree is satisfied, and there remains nothing for satis faction of the decree. The execution purchaser can get possession of the land sold under Order XXI, rule 95 or 96, as the case may be, or by a separate suit within twelve years from the date of the sale under Article 138 of the Limitation Act, but it has got nothing to do with the satisfaction of the decree which has already been satisfied nor it is a matter between the parties to the suit to be barred under section 47 of the Code of Civil Procedure as has been held in the case of Abdul Alim v. Sambu Nath Pal and others (S D L R 163), relied on by Mr. Rakshit, learned Advocate for the appellant. Mr. Chowdhury, learned Advocate, for the respondents could not resist this position. But he contends that a man cannot have two rights‑superior and inferior‑at a time in the self‑same land under the law of merger, and as such, Abdul Gafur mortgaged whatever right he had in the dis puted land. In support of his contention he relied on clause (d) of section 111 of the Transfer of Property Act. He admits that the case does not come under section 22 of the Bengal Tenancy Act, which provides for merger of occupancy ralyati right with that of a tenure. In the present case both the interests are tenure. The Bengal Tenancy Act does not provide for merger of such interest. He strongly relies on section 111 of the Transfer of Property Act. The application of this section to agricultural land is restricted by section 117 of the Act. So there cannot be merger of the two interests under the Transfer of Property Act. It is not dispute) that a man can have at a time more than one right in the self‑same property, and can possess the same in one right or the other. That would depend upon the holder of the property. In this case the intention of Abdul Gafur is to keep them separate as evidenced by the fact of his benami purchase of Nimhowla right, and separate mortgage of the two interests to two different persons. In one right he is to get actual possession, and in another he is to get rent. Further, the Court of Appeal below proceeded on the basis that there were two distinct and separate rights in existence. The learned Additional District Judge got over the difficulties by holding that the two interests being co extensive in the self‑same land, whatever interest Abdul Gafur had was affected by the mortgage decree of the plaintiffs, and that the defendant No.1 being a party to the suit and the execution proceeding, her right, title and interest was also affected by the decree and the sale. The learned Additional District Judge overlooked the fact that both the mortgages‑one in favour of the plaintiffs' predecessor‑in- interest, and the other in favour of the defendant No.1 were simple mortgages, and as such no question of possession of defendant No. 1 at the time of the suit could arise. The contention of Mr. Chowdhury relying on Khub Lal Upadhya v. Jhapsi Kunda (I L R 3 Pat. 244 (248)), that she, being in possession of the suit land, was interested in the mortgage security, and as such, necessary party to the mortgage suit and the execution proceeding, is misconceived one. There is nothing in the bond itself to show that what ever right Abdul Gafur had in the suit land was mortgaged to the plaintiffs predecessor‑in‑interest, nor it appears that Nimhowla right of Abdul Gafur or of the defendant No.1, the mortgage of that right, was impugned in plaintiffs' mortgage suit. As Nimhowla right was not impugned in the plaintiffs' mortgage suit whatever might have been the position of Abdul Gafur on account of his possession of the mort gaged land, defendant No 1 was not bound to set up her paramount title and as such it was not affected by doctrine of res judicata. This view gets support from the Privy Council decision in the case of Radha Kishun v. Khurshed Hossein and others (L R 47 I A 11), relied on by Mr. Rakshit. Mr. Chowdhury, learned Advocate for the respondents then referred to the recital (Amar Khas Dahkilee Zameen) in the bond, and contends that plaintiffs by purchase are entitled to get khas possession. It may be correct provided their title is not barred by limitation and adverse possession. That leads us to the determination of the question of limita tion and adverse possession. As to limitation and adverse possession defendant No. 1 is not relying much on the delivery of possession on account of her purchase in execution of her mortgage decree to which Tarak Chakravorty was not a party, but on the delivery of possession on account of her purchase in rent sale in the year 1935 to which Tarak Chakravorty was a party. Present suit has been filed on the 19th of December, 1947. It is beyond twelve years from the date of delivery of pos session obtained by defendant No. 1 on account of the rent sale. Both the Courts below found actual physical possession of the suit land with defendant No. 1 since then. Mr. Chowdhury contends on behalf of plaintiffs respon dents that the suit as framed comes under Article 144 and not under Article 142 of the Limitation Act as the trial Court seems to think, and defendant No. 1 who sets up title by adverse possession must prove uninterrupted pos session for statutory period. His contention is that symbolical possession taken by the plaintiff's predecessor Keshab through Court in 1937 is an interruption, and defendant No.1 being a party, it will operate as an actual possession. In support of his contention he relies on the Privy Council case of Thakur Sri Sri Krishna Chanderji v. Ram Bhadure and others (22 C W N 330). It is true that the suit as framed is one for possession of plaintiff's auction purchase right and defendant No.1 claims title by adverse possession, so it comes not under Article 142 but under Article 144 of the Limitation Act. But it is not correct to say that there is an interruption in the possession of defendant No.1 by symbolical possession of the plaintiffs through Court. What is required is not notional interruption, but interruption in the actual physical possession of the adverse claimant which is admittedly wanting in this case. Question is whether in law, symbolical possession in this case will operate as an actual possession to constitute an interruption in the possession of an adverse claimant. I have already stated that Nimhowladar is not to be in actual possession, but to get rent from Osat Nimhowladar, who is entitled to be in actual possession of the land. Sol the execution‑purchaser of Osat Nimhowla is to get actual possession under Order XXI, rule 95 of the Code of Civil Procedure when the land is in actual possession of defendant No.1 the judgment‑debtor (if defendant No.1 can bai called a judgment‑debtor at all), and not in occupation of tenant under him or others entitled to be in possession off it in bona fide claim of right. So possession taken under Order XXI, rule 96 of the Code of Civil Procedure by posting a pole and by proclamation is not such an effective possession as to make the time run anew against the execution‑purchaser from the date of delivery of possession. Their Lordships of the Privy Council in the case in 22 C W 330 have not decided anything contrary to this nor their lordships have laid down a law in general term that symbolical possession in all cases will operate as an actual possession against the judgment‑debtor. That was a case in which the land was in actual possession of tenant under the judgment‑debtor as it appears from the judgment at page 334 of the report: "the land being in occupation by cultivating tenants under an apparently bona fide title, they received formal possession as usual after due proclamation by beat of drum in 1898." On these facts their Lordships of the Privy Council affirmed the decision of the Calcutta High Court based on the decision of Full Bench of that High Court in the case of Juggobundhu Mukherjee v. Ram Chandra Bysack (I L R 5 Cal. 584), where it has been held that symbolical possession "avail to dispossess the defendants sufficiently because they were parties to the proceedings in which it was ordered and given". Their Lordships of the Privy Council observed: "This decision is one of long standing, and has been followed for many years. Their Lordships see no reason to question it or to hold that this rule of procedure should now be altered." In Juggobundhu Mukerjee's case the reference to the Full Bench is in the following terms:‑ The question is whether the plaintiff, having obtained a decree for possession of immovable property, which is in occupation of raiyats, and having obtained the kind of delivery prescribed by the Code in such cases, viz. by proclamation and not having, in any other mode, obtained actual possession, obtains thereby a fresh period of limitation, that is to say, is entitled to maintain a suit for recovery of the same land within 12 years from the date of such proclamation. The Full Bench answered the question in the affirmative and observed :‑ "In the one case the delivery of the land is to be made by placing the plaintiff in direct possession. In the other the delivery is effected by the officer of the Court by going through certain process prescribed by section 224 and proclaiming to the occupants of the property that the plaintiff has recovered it from the defendant. This is the only way in which the decree of the Court, awarding possession to the plaintiff, can be enforced; and as, in contemplation of law, both parties must be considered as being present at the time when the delivery is made, we consider that, as against the defendant, the delivery thus given must be deemed equivalent to actual possession." The facts of this case as well as those of the Privy Council case mentioned above are different from the facts of the present case in this that the lands in dispute in those cases were in occupation of persons in bona fide claim of right other than the judgment‑debtor, and actual possession could not have been delivered, whereas in the present case the land was in actual possession of defendant No.1, and actual physical possession could have been taken. Neither the Full Bench case of Calcutta High Court on which the Privy Council relied nor their Lordships of the Privy Council lay down generally that symbolical possession in all cases will operate as an actual possession. A decision of a Court is an authority for what it decides, and should be read with reference to the facts of that case and not indepen dently of them. The view we have taken is supported by the Full Bench decision of Bombay High Court in the case o if Mahadev Sakharam Parkar v. Janu Namji Hatle and others (I L R 36 Bom. 373), followed by the Full Bench of Allahabad High Court in the case of Jang Bahadur Singh and another v. Hanwant Singh (I L R 43 All. 530). Further, the defendant No. 1 relies on her title acquired in rent sale in 1935 long after plaintiffs' purchase in their mortgage sale in 1933. In that right she was never a party to the mortgage decree and the sale thereunder. She cannot be called in that capacity a judgment‑debtor in the true sense of the term. So when her actual possession was not disturbed she was not bound to object to the symbolical possession of the plaintiffs nor she is bound by it. Therefore, the contentions on behalf of the defendant are of substance. The defendant No. 1 has acquired title by adverse possession and the suit of the plaintiff is barred by limitation under Articles 138 and 144 of the Limitation Act, and the claim of defendant No. I is not barred under section 47 of the Code of Civil Procedure or by resjudicata. The result is that this appeal is allowed with cost, and the judgment and decree of the lower appellate Court are set aside and those of the trial Court restored. HASAN, J.‑

I agree. Appeal allowed.