BAIJNATH Vs. SRI BHAGWAN

JUDGEMENT

(1.) THIS is an appeal by the plaintiffs arising out of a suit in which they claim a half-share in certain property by partition. Their right to a half-share in this property was judicially affirmed as against the defendants or their predecessors by a decree passed on the 25 of June 1904, and they obtained formal possession from the Court on the 17 January 1908. The sole point argued in the Court below and in this Court was one of limitation. The present suit was filed on the 10 January, 1920. The question is whether limitation should run from the date of confirmation of the sale under Art. 138 of the Limitation Act, or from the date of delivery of formal possession under Art. 142 or Art. 144. The suit is within 12 years from the latter date but beyond 12 years from the former. The trial Court held that delivery of formal possession by the Court formed a fresh starting point for limitation, and decreed the suit. The lower appellate Court reversed this decree. The finding of the Court below is very difficult to understand. The learned Subordinate Judge seems to think that there was no provision for delivery of symbolical possession under the Code of 1882, although Section 319 of that Code, which provides for delivery of symbolical possession, was expressly referred to in the judgment of the trial Court. THIS mistake entirely vitiates the judgment of the learned Subordinate Judge. The learned Subordinate Judge thought that symbolical possession could not be delivered because no such possession was allowed by law, and that even if it could be delivered, it was necessary formally to prove all the steps by which that possession was delivered. The learned Subordinate Judge overlooks the presumption that the acts of a Court have been regularly carried out unless the contrary is shown. In face of the formal dakhilnama given to the plaintiff under the orders of the Court and in the absence of any evidence of fraud in connexion with that delivery of possession it is clear that formal possession was given, and such formal possession in a case to which it applies is, under the Pull Bench ruling in Jang Bahadur Sing V/s. Haumant Singh AIR 1921 All 9 sufficient to give a fresh starting point for limitation. We accordingly set aside the decree of the Court below and restore that of the trial Court with cost in all Courts including in this Court fees on the higher scale.