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Appeals from Appellate Decrees Nos. 592 to 595 .of 1959, decided on 11th June 1965.
Court sale‑"Symbolical" possession obtained by purchaser-- Amounts to dispossession of judgment‑debtor‑Transferee from certificate‑debtor not made party to certificate proceedings-- Certificate‑creditor cannot be allowed to fasten a symbolical possession against such transferee.
With regard to sale by Court, the position is, that, as against the judgment‑debtor, symbolical possession obtained by the purchaser would amount to dispossession of the said judg ment‑debtor. The reason is obvious, because even a token possession would prevail against the judgment‑debtor, who is a party to all the proceedings in the suit and in execution proceed ings relating to it. Consequently, it is clear that even a symbo lical possession, as against him, is actual possession because, in the eye of law, the token possession is taken in his presence although he may not be physically present at the time of a symbolical delivery of possession. There can be no such exten sion of the law to a party outside the suit. With regard to a person, who is not a party to the suit, physical possession, that is; actual possession must be established. This is a well‑settled principle.
The extension of the doctrine of symbolical possession is also of limited application. Its logic is also clear. In certificate sale, where X is the judgment‑debtor and, a party to the certificate proceedings, there is no manner of doubt that symbolical possession would prevail against X because he was the judgment- debtor. The same position will apply to subsequent transferees of X. The symbolical possession will apply to such transferees. But, the crucial point is, was X legally a proper party to the proceedings resulting in the sale If X had ceased to be the owner of the property in respect of which there has been a default in payment of dues, he could not be made a certificate‑debtor with regard to such dues for the simple reason that his interest in the defaulting property was already extinct. By merely making him a party to the certificate‑proceedings, to the exclu sion of his transferees, the certificate‑creditor cannot be allowed to fasten a symbolical possession against a transferee of X, who was not made a party to the certificate‑proceedings.
In a case X, the original owner of the suit lands transferred them to plaintiff. Subsequent to such transference, there was a default in payment of public dues in respect of the suit lands which were put to certificate sale wherein, X was made a party but not the plaintiff:
Held, that a delivery of mere symbolical possession ' of the suit‑lands to the purchaser at the certificate‑sale will not amount to a dispossession of plaintiffs, who were not parties to the certifi cate‑proceedings. Therefore, as against plaintiffs, the only kind of dispossession by the certificate‑purchaser mutt be actual physical dispossession.
Juggobundhu Mukerjee v. Ram Chunder Bysack I L R 5 Cal. 584; Thakur Sri Sri Radha Krishna Chanderji v. Ram Bahadur 22 C W N 330; Adyanath Chathak v. Krishna Prasad Singh 53 C W N 883 and Fazlur Rahman v. Abdul Jabbar 7 D' L R. 49 ref.
‑‑Second appeal‑ Assessment of evidence by lower appellate Court with regard to question of fact‑Curiousness of such assessment cannot be investigated in second appeal.
U. K. Ray with A. S: M. Shamsuzzaman for Appellants.
A. F. M. Mesbahuddin for Respondents.
These four appeals have had a chequered career. Each of these suits was instituted for declaration of plaintiffs' title to the suit‑lands and for confirmation of their possession therein and also for a further declaration that their interests in the suit‑lands had not been affected by a certificate‑sale whereby defendant No. 1 is alleged to have purchased the said suit‑lands.
It transpires that originally the jote belonged to one Nagarjan Bibi (vide Exh. 8) who died long ago. Plaintiffs purchased some lands of the jote from the heirs of Nagarjan, the original tenant, by deeds, which have been marked as Exhs. 1 series. Exhs. 4 and 4 (a) show their possession of the suit‑lands eversince the aforesaid purchase. Plaintiffs' had their names mutated in the Comilla Collectorate and such mutation is borne out by a document marked Exh. 5. Upon such purchase plaintiffs became‑the owners of the jote and their names were mutated as stated above. Subsequently, the said jote was sold for arrears of rent on the 3rd of March 1947. In the certificate proceedings, relating to the said sale, plaintiffs were not made parties, although they had become owners of the jote. In the aforesaid certificate sale the jote was purchased by Government at a nominal price. It is pertinent to mention that the suit‑lands constitute the khas lands of Government. Upon the aforesaid purchase by Govern ment, a token possession of the suit‑lands was taken in a manner which is known in this country as symbolical possession. Such possession is distinct from actual possession in a physical sense. Government, thereafter, settled the suit‑lands with the defendants.
Plaintiffs, on being aware of the aforesaid sale, unsuccessfully sought to set it aside and their case all along the line has been that they were not made parties to the certificate proceedings. Hence these suits.
Defendant No. 1, Province of East Pakistan, entered appearance, but did not file any written statement. The suits were not contested on behalf of the Province of East Pakistan.
Defendants 2 and 6 contested the suits and their defence was that the second and third sets of defendants had taken settlement of the jote from defendant No. 1 and had been in possession of the suit‑lands eversince such purchase. They have averred that plaintiffs have no interest in the suit‑lands. The other averments in the pleadings need not be set out here.
On the pleadings a number of issues were, framed by the learned Munsif at Comilla, who tried the suits. Both parties adduced oral and documentary evidence. It was vigorously contended on behalf of defendants that plaintiffs' suits were not maintainable as according to the said defendants, they were barred under Article 3, Schedule 111, of the Bengal Tenancy Act.
Learned Munsif held that since plaintiffs were not made parties to the certificate proceedings, defendants must prove actual physical possession of the suit‑lands within a period of twelve years before the date of the institution of the suits. On an appraisal of the evidence in the case, learned Munsif came to the conclusion that defendants could not establish their possession of the suit‑lands three years prior to the date of the institution of the suits. He, therefore, negatived the contention advanced on behalf of defendants and found all the relevant issues in favour of plaintiffs and decreed the suits.
Against the judgment and decrees passed by the learned Munsif, the said defendants preferred appeals which were heard and disposed of by a Subordinate Judge of Comilla. The learned Subordinate Judge reversed the judgment and decree passed by the learned Munsif and dismissed the suits.
Against the dismissal of the suits by the learned Subordinate Judge plaintiffs preferred appeals which were heard by a Judge of this Court sitting singly, who, by a judgment delivered on the 11th of February 1958, sent back the cases on remand to the Appellate Court below to record a finding as to the date on which the said defendants had come to actual possession of the suit‑lands, as distinct from a mere symbolical possession thereof.
When the appeals went back for re‑hearing, they were heard by another Subordinate Judge who, discussed the evidence in the case and came to the conclusion that the evidence adduced on behalf of defendants as to their possession' of the suit‑lands was unsatisfactory. He, however, came to the conclusion that it could not be held, by any manner of means, that defendants were in possession of the suit‑lands prior to three years from the institution of the suits. He, therefore, held that plaintiffs' suit would not be hit by the provisions of Article 3, Schedule III, Bengal Tenancy Act. Accordingly, he dismissed the appeals and disposed of the only point upon which this Court had remanded the cases back to the Appellate Court below. Learned Subordinate Judge, consequently, affirmed the judgment and decrees passed by the Trial Court. Hence these four appeals.
At the hearing of these appeals Mr. U. K. Ray, who appeared on behalf of the appellants, as argued that against the present set of defendants the dispossession would commence from the date of symbolical possession (as distinct from actual physical possession), which was obtained by the defendant Government, i.e., defendant No. 1.
The law on the subject is well‑settled. With regard to sale by Court, the position is, that, as against the judgment‑debtor symbolical possession obtained by the purchaser would amount to dispossession of the said judgment‑debtor. The reason is obvious, because even a token possession would prevail against the judgment‑debtor, who is a party to all the proceedings in the suit and in execution proceedings relating to it. Consequently, it is clear that even a symbolical possession, as against him, is actual possession because, in the eye of law, the token possession is taken in his presence although he may not be physically present at the time of a symbolical delivery of possession. There can be no such extension of the law to a party outside the suit. With regard to a person, who is not a party to the suit, physical possession, that is, actual possession must be established. This is a well‑settled principle. There are a large number of decisions to support this proposition, but, I may refer to some of them only, namely, Juggobundhu Mukerjee v. Ram Chunder Bysack (I L R 5 Cal. 584 at p. 588), Thakur Sri Sri Radha Krishna Chanderji v. Ram Bahadur (22 C W N 330 at p. 335), Adyanath Chatak v. Krishna Prasad Singh (53 C W N 883 at p. 886). The aforesaid principle has also been re‑affirmed in a decision of a Division Bench of this Court in the case of Fazlur Rahman v. Abdul Jabbar (7 D L R 49 at p. 54‑55).
The principle, as enunciated above, is not contested by the learned Advocate for appellants. He has sought to argue that plaintiffs, being transferees of the judgment‑debtor, it must be held that, even as against them, the symbolical possession which would have prevailed against their predecessor, would be available. He has sought to support the aforesaid proposition by reference to the aforesaid cases.
The extension of the doctrine of symbolical possession is also of limited application. Its logic is also clear. In a certificate‑sale, where X is the judgment‑debtor and a party to the certificate proceedings, there is no manner of doubt that symbolical possession would prevail against X because he was the judgment‑ debtor. The same position will apply to subsequent transferees of X. The symbolical possession will' apply to such transferees. But, the crucial point is, was X legally a proper B party to the proceedings resulting in the sale If X had ceased to be the owner of the property in respect of which there has been a default in payment of dues, he could not be made a certificate‑debtor with regard to such duds for the simple reason that his interest in the defaulting property was already extinct. By merely making him a party to the certificate‑proceedings, to the exclusion of his transferees, the certificate creditor cannot be allowed to fasten a symbolical possession against a transferee of X, who was not made a party to the certificate‑proceedings.
What was the position at the time of the certificate sale The transferors of the plaintiffs had long ceased to have arty ownership in the lands. Plaintiffs have had their names mutated in' the records of the Collectorate. In this certificate‑proceedings plaintiffs should have been made parties and not their predecessors whose interest in the suit‑lands had been wiped out long ago. The position resolves itself thus: X, the original owner of the suit‑lands, transferred them to plaintiffs. Subsequent to such transference, there was a default in payment of public dues in respect of the suit‑lands which were put to certificate‑sale wherein X was made a party but not the plaintiffs. A delivery of mere symbolical possession of the suit‑lands to the purchaser at the Certificate-sale will not amount to a dispossession of plaintiffs, who were not parties to the certificate‑proceedings. Therefore, as against plaintiffs, the only kind of dispossession by the certificate purchaser must be actual physical dispossession.
Mr. U. K. Ray found it difficult to contest the aforesaid proposition. He then turned round to say that the assessment of evidence of the parties with regard to actual possession of the suit‑lands was a curious one. In hearing a second appeal, at this late stage, I am neither prepared, nor called upon, to investigate the curiousness of the assessment. The basic fact is, that both the Courts below, particularly, the final Court of fact, namely, the Lower Appellate Court, did arrive at a finding that defendants had failed to prove actual dispossession of plaintiffs from the suit‑lands three years prior to the date of the institution of the suits. The appeals were thus rightly dismissed by the Appellate Court below.
I, therefore, hold that, on the concluded findings of fact, appellants have not succeeded in establishing that plaintiffs' suits are hit by Article 3, Schedule III, Bengal Tenancy Act.
In the result, I dismiss these appeals, but in view of the circumstances of these cases, I make no order as to costs.
S. Q.
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