Case Note & Summary
The litigation originated from a suit for possession, declaration, and damages regarding agricultural lands bearing Survey Nos. 1/2 and 54/3. The lands had been mortgaged by one Ganpat Motiram Mahajan to Madhav Martand Deshpande, who obtained a decree in R.C.S. No. 606/1937. In execution proceedings (Regular Darkhast No. 1097/1944), the lands were auctioned and purchased by the plaintiffs on 21.03.1955, with sale confirmed on 25.06.1955. However, defendant No. 2 claimed tenancy rights, leading to tenancy proceedings that ultimately declared him a trespasser. Plaintiffs sought possession in execution but received only symbolical possession on 27.04.1956, as the executing court disposed of the matter due to the tenancy dispute. Plaintiffs then filed the present suit in 1963 for actual possession. Defendant No. 1 (appellant) denied the plaintiffs' claims and contended he had allowed defendant No. 2 to cultivate as a tenant. The trial court decreed the suit against defendants other than defendant No. 1, directing the legal representatives to deliver possession. On appeal, the lower appellate court partly allowed the appeal, setting aside the possession decree regarding one survey number vis-à-vis defendant No. 2, but did not pass a formal decree against defendant No. 1 despite holding he was not a tenant. Aggrieved, defendant No. 1 filed this second appeal, and the plaintiffs cross-objected seeking a decree against defendant No. 1. The appellant challenged the maintainability of the suit, arguing that possession should have been sought under Order 21 Rule 95 CPC and that a separate suit was barred by Section 47 CPC. He also contended the suit was time-barred, having been filed beyond three years from the date the sale became absolute as per Article 180 of the Limitation Act, 1908. Additionally, he argued the cross-objection was not tenable while the appeal was pending for admission. The respondents countered that the suit was maintainable because execution proceedings terminated after symbolical possession, leaving a right to sue for actual possession under Article 65 of the Limitation Act; that limitation and maintainability pleas were not raised earlier and involved mixed questions of law and fact; and that the cross-objection was maintainable after admission of the appeal. The High Court, after considering the submissions, held that since symbolical possession alone was given in execution and the proceedings were terminated, a suit for actual physical possession was maintainable. The objection regarding Section 47 CPC could not be taken for the first time in second appeal as it was a mixed question. On limitation, the suit was filed within 12 years under Article 65 after symbolical delivery, and the plea of limitation was not pleaded. The cross-objection was held maintainable as the appeal had been admitted after hearing both sides, and the pendency of an earlier application for correction did not bar it. Consequently, the second appeal and cross-objection were dismissed, confirming the decree of the lower appellate court.
Headnote
A) Civil Procedure - Execution - Suit for Possession on Title - Code of Civil Procedure, 1908, Order 21 Rules 95, 96, Section 47 - In execution of a mortgage decree, plaintiffs purchased agricultural lands in auction and obtained symbolical possession due to a tenancy claim; execution proceedings were terminated. Subsequently, a suit for actual physical possession based on title was filed. Held that such a suit is maintainable as the execution proceedings concluded with only symbolical delivery, and the plea of non-maintainability not raised earlier cannot be taken in second appeal being a mixed question of law and fact. (Paras 11, 12, 13, 14) B) Limitation - Suit for Possession - Limitation Act, 1963, Article 65 - After symbolical possession is delivered in execution, the right to actual possession accrues under Article 65 which prescribes 12 years from when possession becomes adverse. The suit filed in 1963 (sale confirmed in 1955, symbolical possession in 1956) was within limitation. The plea of limitation based on Article 180 of Limitation Act, 1908 was not pleaded and was a mixed question, hence cannot be raised first time in second appeal. (Paras 11, 12, 13) C) Civil Procedure - Cross-Objection - Maintainability - Code of Civil Procedure, 1908, Order 41 Rule 22 - Cross-objection filed after admission of second appeal is maintainable. Pendency for admission under Order 41 Rule 11 does not bar cross-objection once the appeal is admitted after hearing both sides. The filing of an application for correction earlier does not render the cross-objection non-maintainable. (Paras 11, 12, 13)
Issue of Consideration
Whether suit for possession on the basis of title was maintainable when symbolical possession had already been obtained in execution proceedings; whether the suit was barred by limitation; whether the cross-objection was tenable in a second appeal pending admission under Order 41 Rule 11 CPC.
Final Decision
Second appeal dismissed; cross-objection dismissed. Decree of the lower appellate court confirmed. No costs.
Law Points
- suit for possession on title after symbolical delivery in execution is maintainable
- limitation period for actual possession suit after symbolical delivery is 12 years under Article 65 Limitation Act
- plea of non-maintainability and limitation not raised before trial court cannot be agitated in second appeal
- cross-objection under Order 41 Rule 22 CPC maintainable after admission of appeal
- mixed question of law and fact cannot be raised first time in second appeal
