(1.) This motion is by the petitioners (who will hereafter be referred to as the plaintiffs), whose application for permission to sue as paupers has been rejected by the Court below.
(2.) The facts are thus: The predecessor-in-interest of the 1st defendant had, in execution of the hypothecation decree in O. S. No. 173 of 1108 on the file of the Munsiff, Changanacherry, obtained by him against Kunnappally tarwad, purchased the plaint schedule properties on 17 10 1113 and taken delivery of them on 16 12 1116. Though the plaintiffs' father, who was no party to those proceedings, obstructed the delivery, he was overruled and delivery was effected on 16 12 1116. The dispute as to possession survived the delivery proceedings and ultimately culminated in M. C. No. 13 of 1119 (1943) before the Sub-Divisional Magistrate, Kottayam, under S.128 of the Travancore Criminal Procedure Code, which corresponded with S.145 of the Indian Code. The Magistrate, by his order dated 28 10 1946 expressed inability to decide as to the party in possession and therefore ordered continuance of attachment of the properties and the receiving order "until a competent Court has determined the rights of the parties thereto or the person entitled to possession thereof." On the eve of expiry of three years after the Magistrate's order, the 1st defendant instituted O. S. No. 65 of 1125 on the file of the District Court, Kottayam, against the plaintiffs' predecessor for declaration of title and recovery of possession from the receiver. That suit was tried by the Subordinate Judge, Kottayam, who found title and possession of the properties with the 1st defendant. The plaintiffs took the matter in appeal before this Court (in A. S. No. 218 of 1959) which, by the judgment, Ext. D2, dated 23 10 1963, left the question of title open between parties, and found the delivery of 1116 aforesaid to be real. A fresh suit to determine the rights of the parties thus became inevitable; for a mere delivery by Court, as has been observed by the Privy Council in Karan Singh v. Raja Bakar Ali Khan 9 I. A. 99 will not give a title, and, as observed by me in CRP. No. 351 of 1967 since reported in 1967 KLT 667 , will not affect the title of the true owner who was no party thereto. On 5-2-1964, the plaintiffs presented this application for permission to sue as paupers for declaration of their title to the property and for recovery thereof from the receiver. The Principal Subordinate Judge, Kottayam, held:
"Under O.33 R.5(d)(i), 'where the suit appears to be barred by any law the court shall reject an application for permission to sue as a pauper.' The petitioner was examined as P. W. 1. He would admit that he has no fresh evidence other than what his father had tendered in the prior suit. The court has power to reject an application for permission to sue in forma pauperis where the claim is prima facie barred by limitation or is res judicata etc. But in considering the question whether the applicant has a cause of action or not, the court has to look only to the allegations made by the applicant, and cannot enter to the merits of the claim. It is open to the court to consider not only the allegations contained in the plaint, but also the facts appearing in the examination of the applicant. It has come out in the deposition of the petitioner that he has no evidence worth the name to be adduced; and the same contentions were raised and agitated by his father in the prior suit. Therefore. I find that this petition is not maintainable. It is hence, dismissed."
The prior suit referred to being O. S. No. 65 of 1125 which left open the right (title) to the properties, there cannot be a bar of res judicata. The Subordinate Judge has riot indicated the law that bars a re-agitation of the question which has teen expressly left open in a prior suit. The plaintiffs went in appeal before the District Judge, Kottayam, who dismissed the appeal with costs, observing:
"This suit was plainly filed on account of the following observations in Ext. D2 judgment:
'In the inconclusive nature and discussion of the evidence on the question of title, I think it proper in the interest of justice to leave open the question of title to the suit properties." The above observations only mean that the question of title was alone left open and does not, as the appellants' learned counsel contended, mean that the question of subsisting title was also left open. If so, the finding of fact, that the respondent got actual delivery in 1116, would have no meaning at all and his suit would not have been decreed and the appeal filed by the appellants' father would not have been dismissed with costs. I am, therefore, justified in taking the view, on account of the findings of fact in Ext. D2 judgment which, I may repeat, are binding upon the appellants, that they have prima facie no subsisting title which in turn means that the substantive relief of possession which they claim in the present suit, is pinna facie time barred."
It is absurd to think that when this Court left open the question of title to the suit properties, it meant something other than subsisting title. The facts of the case show unambiguously that what was relevant in the suit was only subsisting title. In the context of the challenge to a delivery proceeding had in execution of a decree by a person claiming title to the properties no Judge could have reasonably thought that any antecedent but non subsisting title would have been the thing considered and left open for decision in another suit.
(3.) Encouraged apparently by the above quoted observation of the District Judge, counsel for the respondents defendants contends that the suit is barred under Art.142 of the Limitation Act, in as much as the plaintiffs' dispossession was on 16-12-1116/31-7-1941 and their present application is dated 5 2 1964. This contention, I am afraid, ignores the fact that the properties had been in possession of a receiver appointed by the Sub Divisional Magistrate, Kottayam, since 1943 till after the institution of the present pauper petition. If the receiver's possession was possession of the rightful owner and if ultimately in this suit the plaintiffs are found to have title to the properties, it cannot then be said that the plaintiffs were out of legal possession since 1943, or that the defendants were in possession beyond 1943.;