Ram Kishan vs Sheo Chand and Others

D.K. Mahajan, J.—This second appeal is directed against the concurrent decisions of the Courts below dismissing the plaintiff''s suit.

The facts giving rise to this appeal are that Deegha was the last occupancy tenant of the land measuring 4 bighas 16 biswas, which is denoted in the revenue papers by khasra Nos. 1238 and 1260 situate in village Shamspur. Deegha, occupancy tenant, died on the 17th of June, 1942. without leaving a heir. The plaintiff entered into possession of the occupancy tenancy on the plea that he was the adopted son of Deegha. However, on the 7th of October, 1942, Sheo Chand and others brought a suit for possession by partition of these khasra numbers. The title of that suit was Faqira etc. v. Ram Kishan etc. In that suit a decree to the extent of 21/32 shares was passed in favour of the plaintiffs with regard to these two khasra numbers, and on the 7th of March, 19(sic), symbolical possession was delivered of this 21/32 shares to the plaintiffs. The present suit was filed by Ram Krishan, the alleged adopted son of Deegha, to the effect that the defendants be restrained from getting the land partitioned. This suit was necessitated because the defendants applied to the Revenue Court for partition where a question of title was raised by the present plaintiff with the result that a direction was given by the Revenue Court for getting the question of title settled by the Civil Court. The plaintiff''s claim is based on his alleged adoption by Deegha and also on the basis of adverse possession. The only material issue that arose for determination in the Courts below was with regard to adverse possession. The Courts below have found as a fact that the plaintiff is not the adopted son of Deegha. It has also been found that the plaintiff has not proved his title to the land in dispute by adverse possession. On the question of adoption no arguments have been addressed to me, and rightly so because this being a finding of fact would not be open to question in second appeal.

On the question of adverse possession, the learned counsel for the appellant has raised the contention that the Courts below have held that the plaintiff has not perfected his title to the land in dispute by adverse possession by reason of the break in the continuity of possession in view of the delivery of symbolical possession of the land to the present defendants or their predecessors in interest on the 7th March, 1945 The trial Court came to the conclusion that there was proper delivery of symbolical possession on the 7th of March, 1965. The lower appellate Court, while agreeing with the tried Court on this matter, observed that the warrant of possession had not been affixed on the property or near about it at the time when the symbolical possession was delivered. Basing himself on this finding, the learned counsel for the appellant contended that there was no lawful delivery of symbolical possession on the 7th of March, 1945. Which in any manner broke the continuity of plaintiff''s adverse possession. Therefore, the whole controversy that has been raised before me is whether on the 7th of March, 1945, there was lawful delivery of symbolical possession. It is common ground that the only method in which possession could be delivered was as contemplated by Order 21 rule 35(2) of the Civil Procedure Code. The contention, however, is that as the warrant of possession was not affixed on the property or at some conspicuous place near the property, the delivery of possession is no delivery of possession as such in the eyes of law. In support of this contention the learned counsel relies on a Division Bench decision of the Punjab Chief Court in Khub Ram v. Sural and others 10 P.R. 19(sic)7, and the following decisions :

Jauhri Lal and others v. Peman and others 55 I.C. 19; Nidhi Ram v. Parsa Ram 74 I.C. 1; and Harnam Singh v. Ganda Singh and others 145 I.C. 345.

These decisions do support the contention of the learned counsel, but the facts of the present case are distinguishable from the facts of Khub Ram v. Surat. The present case stands concluded by the decision of the Lahore High Court in Jauhri Lal and others v. Peman and others (L.P.A.) 68 I.C. 182. In Jauhri Lal''s case, the decision in Khub Ram v. Surat was considered and it was observed that "where persons particularly concerned in execution proceedings have been made aware of those proceedings and publicity thereof has thus been achieved, the provisions of the law contained in Order 21 rules 35(2) and 36 of the CPC should be deemed to have been substantially complied with." In Jauhri Lal''s case, the warrant of possession had not been affixed as required by Order 21 Rule 35(2) of the CPC and in spite of this it was held that the omission to do so did not render the delivery of possession illegal. In the present case from the report (Exhibit D. 1) it is apparent that the proclamation about the delivery of possession was made by beat of drum. The report is silent as to whether the copy of the warrant was affixed or not. But we have the statement of the plaintiff Ram Kishan as P.W. 3 to the effect that proceedings with regard to delivery of possession were taken. He has nowhere stated in the witness-box that he was unaware about the symbolical delivery of possession made on the 7th of March, 1945. The lower appellate Court has merely, on the basis of the report, taken it for granted that the warrant of possession was not affixed. It may be possible to come to that conclusion from the fact that Exhibit D. 1, the report, is silent as to this matter. But it was incumbent on the lower appellate Court to consider Exhibit D. 1 along with other evidence and not depend on it alone divorced from other evidence as has been done in this case. Exhibit D. 1 read with the statement of the plaintiff leaves no manner of doubt that the provisions of Order 21, rule 35(2) were fully complied with. Moreover, at no stage was any grievance made by the plaintiff that he was wholly unaware of the delivery of possession which followed the decree dated the 17th of August, 1944, That being so, it cannot be held that the delivery of possession on the 7th of March, 1945, was defective.

For the reasons given above, this appeal fails and is dismissed. However, there will be no order as to costs.