Laxman Dash vs Madan Mohan Rout and Others

G.K. Misra, C.J.—The Plaintiff-Petitioner is the decree. holder. In execution of a decree dated 24th April, 1961, be purchased one fourth share of opposite party No. 1''s interest in the coparcenary property of which opposite parties 2 to 7 are the co-sharers on 3-4-1964. The Petitioner put the decree into execution and got symbolical delivery of possession. But the execution became infructuous. Ultimately, in 1966, he filed T.S. No. 17 of 1966 for partition of his one-fourth share. This suit was decreed by the learned Munsif on 6-5-1969.

In appeal, the 3rd Additional Subordinate Judge, Cuttack, called upon the Munsif to record as finding a to whether the suit for partition was maintainable without the decree being put to Execution for getting symbolical delivery of possession jointly with other co-sharers. His direction was to the effect. The learned Munsif shall submit his findings with additional evidence taken if required to the Court within three months from the date of order.

Against this order calling upon the Munsif to record a finding on the particular issue that the Civil Revision has been filed.

The sole question for consideration is whether the auction-purchaser of an undivided interest in a coparcenary property is bound to execute the decree to obtain symbolical delivery of possession, and whether in absence of taking such possession, the suit for partition is not maintainable.

The legal position is well-settled and the law is not In conflict that it is open to him to file a suit for partition on the basis of the decree to carve out his specific interest where after he would obtain delivery of possession of the specific property allotted to him In partition. It is unnecessary to refer to a plethora of authorities. The matter is concluded by the decision of the Supreme Court In Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh and Others, . The same view has also been taken In Mamidi Venkata Satyanarayana Manikyala Rao and Another Vs. Mandela Narasimhaswami and Others, .

Mr. Patra vehemently contended that a different view has been taken In the latter case. The confusion In such an argument arises on account of the fact that it ignores the facts of each particular case. Manikayala Rao v. Narasimha Swamy A.I.R 1966 S.C. 470 related to a case where the question of adverse possession was examined. In that case after purchasing the undivided share of a coparcenary property the decree-bolder took symbolical delivery of possession. The question for consideration was whether taking of such symbolical delivery of possession interrupted the running of adverse possession. In that connection was contended that the taking of symbolical delivery of possession was a nullity and as such, should be ignored, and therefore, It cannot constitute an interruption In the running of adverse possession. This contention was negatived by their Lordships by an analysis that though the auction purchaser was not required In law to take delivery of symbolical possession, he, in fact, took such delivery under orders of the Court, and the order of the Court was not a nullity, as it was not without jurisdiction, but was passed in exercise of jurisdiction illegally. Their Lordships, therefore, recognized the fundamental proposition of law that the auction-purchaser of an undivided interest in a coparcenary property is only to file a suit for partition and carve our his specific interest through that process and is not called upon in law to take delivery of symbolical possession. Thus Mamidi Venkata Satyanarayana Manikyala Rao and Another Vs. Mandela Narasimhaswami and Others, is in line with Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh and Others, .

A learned Single Judge of this Court observed in I Ramamurty v. Khetra Praja 37 C.L.T. 271 that the Division Bench decision of this Court in Laxminarasamma v. Banganayakamma AIR 1964 Ori 43 does not lay down the correct law, as it was contrary to Mamidi Venkata Satyanarayana Manikyala Rao and Another Vs. Mandela Narasimhaswami and Others, . As the facts in those cases were with reference to acquisition of title by adverse possession, such a question does not arise in this case. I am, therefore, not called upon to determine whether the learned single Judge was correct in his view that the Division Bench decision had not been correctly made. It is, therefore, not necessary to express any opinion regarding these two decisions cited at the Bar in this case.

In view of the correct legal expositions, this case ought to have been finally decided here. But unfortunately the records are still pending with the lower Appellate Court, and I cannot pass the final order despite the finality of the view expressed on the legal question.

In the result, I would set aside the order of the learned Subordinate Judge, allow the Civil Revision, and direct that the Subordinate Judge should dispose of the appeal pending before him in accordance with law enunciated in this judgment.

It need hardly be stated that he has to do nothing more than merely to dismiss the appeal after fixing a date for hearing with intimation to the advocates.

I cannot part with the case without observing that the learned Additional Subordinate Judge shirked his duty without finally deciding the question of law. Even when a question of law was not raised before the trial Court, and was raised for the first time before the lower Appellate Court, the litigation could have been shortened by the Appellate Court the dealt with the case finally without remanding it for a finding on a particular issue where it involves a mere question of law.

On the first day of the hearing of the Civil Revision, the list did not contain the names of the advocates for the opposite parties. Accordingly, Mr. Patra could not appear in the case the point required some examination, and Mr. S.C. Mohapatra when called upon, expressed his willingness to assist the Court as an Amicus Curaie. In course of argument today he has placed the relevant law correctly and by this judgment J. would record my appreciation of his voluntary services.

Revision is allowed with costs. Hearing fee Rs. One hundred.