- (1.) THIS application in revision which is directed against the order of the Additional Com-missioner, Jaipur, dated 7. 6. 1956, has arisen in the following circumstances. Kanhaiyalal Nanag Ram and others applied for reinstatement under sec. 7 of the Rajasthan (Protection of Tenants) Ordinance, 1949, against Ram Deva and others in the court of the Anti-Ejectment Officer, Jaipur, in respect of land measuring 22 bighas Chahi and 115 bighas barani (Kham) in village Parmanpura on 20. 7. 1953. After necessary enquiry the trial court ordered reinstatement of the applicants on 14-10 53. The applicants applied for the execution of the order and possession of the land in dispute was delivered to them by the Anti-Ejectment Officer. The non-applicants filed a revision before the Board of Revenue against the order of the Anti-Ejectment Officer. The revision was accepted by the Board on 8. 4. 1954 and the order of the Anti-Ejectment Officer was set aside. The non-applicants filed an application for execution of the order of the Board before the S. D. O. , Kotputli on 26. 4. 1954. Possession was alleged to have been delivered to the non-applicants on 19. 5. 1954 by Kanjilal Girdawar in compliance with the order of the Board. A supurdnama was executed by the non-applicants acknowledging delivery of possession to them. It appears that certain developments took place subsequently and the non-applicants were deprived of possession over the land in dispute. They submitted a second application to the S. D. O. , Kotputli on 10. 6. 1954 praying that possession over the land in dispute be delivered to them in execution of the order of the Board. The learned S. D. O. rejected the same on 12. 6. 54 on the ground that as the order of the Board had been executed once it could not be executed a second time. The non-applicants aggrieved by the order of the S. D. O. filed a revision before the Board on 19. 10. 1955. It was treated as an appeal under the provisions of the Rajasthan Tenancy Act which had come into force on 15th October, 1955 and the case was transferred to the court of the Additional Commissioner, Jaipur. The learned Additional Commissioner accepted the appeal and set aside the order of the S. D. O. on the ground that as was clear from the report of the Girdawar Quanungo the order of reinstatement over the land in dispute had not been fully or completely executed and the warrant did not contain any detail of the land in dispute. The Girdawar in execution of the warrant had delivered possession over 53 bighas and 7 biswas of land. It was difficult to make out whether the area of the land given in the report of the Girdawar approximated to 22 bighas Chahi and 115 bighas (Kham) of barani land. The learned Addl. Commissioner directed that possession of the land in dispute be given to the non-applicants. Against this order Kanhaiyalal and others have come up in revision before the Board.
(2.) WE have heard the learned counsel appearing for the parties and have also examined the record. It was contended before us on behalf of the applicants that the learned Additional Commissioner had overlooked the cardinal principle of law that once a decree or order was executed it could not be executed again. It was further, urged that the non-applicants had executed a supurdnama indicating that they had received possession over the land in dispute and they were fully satisfied with the manner in which the order of the Board was executed. A subsequent application for execution by them was absolutely un-called-for and the trial court had rightly rejected it. The learned Additional Commissioner had erroneously held that the order of the Board had not been fully or completely executed. It was alleged that the supurdnama gave a detail of the land in dispute. It not only mentioned khasra numbers of the fields but also specified their area. On behalf of the non-applicants it was argued that as was clear from the report of the Girdawar only paper possession had been given to them and the possession of the land in dispute had all along remained with the applicants. They were, therefore, justified in applying again for execution of the order of the Board. A large number of authorities were cited by the learned counsel for the non-applicants m support of his contention that where actual possession of the land in dispute had not been delivered in execution of an order of the Board the order could be executed again. These authorities are R. L. W. 1952 (R. S. 6. 2-B), R. R. D. 1955 March (D. B. p. 91 B), A. I. R. 1949 Patna (S. B, ). pager 152, A. I. R. 1918 Madras page 207, A. I. R. 1928 Calcutta 344. A. I. R. 1941 Peshawar page 25a, and R. L. W. 1956 page 92. A. I. R. 1941 Oudh page 429 was relied upon in order to show that an admission made in ignorance of legal rights and under an erroneous conception of real facts was not binding on the person making it. As the non-applicants had not received actual physical possession over the land in dispute the facts set out in the supurdnana which amounted to an admission could not, therefore, bind them. On behalf of the applicants reliance was placed upon 1956 RRD page 28 A. I. R. 1931 Calcutta page 427, A. I. R. 1948 Patna 417, A. I. R. 1917 Privy Council 198, and A. I. R. 1950 Pepsu page 22. Before we examine these authorities in detail in order to deduce from them the principle of law which would apply to the facts of the present case we think it necessary to refer to the provisions of Order 21, Rule 35, which prescribe the mode of execution of a decree for immovable property. Its relevant portion reads as follows : - " (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to reveive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property. (2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree " (3 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The rule draws a distinction between actual possession and symbolical possession. It d not define precisely what circumstances in a particular case would constitute delivery of actual possession. One can conceive of cases where from the nature of the property such a Zamindari or tank or mineral rights, it is not possible to remove the judgment-debtor physically from it nor is it possible to put the decree-holder in physical occupation of the property. What the official who is entrusted with giving possession can do is to go to the property and proclaim in the name of the court that so and so has been dispossessed and so and so has been put in possession of it. This delivery of possession is not symbolical but actual and is as effective against the judgment-debtor as his physical removal from a house In order to form a clear idea whether possession had in fact been delivered to the non-appli-cants or not we considered it necessary to send for the Girdawar as a court witness and examine him on the crucial point involved for determination in this revision. It is abundantly clear from his evidence that he delivered possession of the land to the non-applicants after the chahi and barani fields which were lying scattered about were pointed out by them The khasra numbers of those fields were ascertained from the Patwari. The identity of the land in dispute was, however, determined by the non-applicants themselves as they were fully aware of the land which had been taken away from their possession earlier. Out of the land in dispute only a small portion was under crops. The Girdawar also had it announced by the beat of drum that the possession of the land had changed hands and the applicants who chose to stay away had nothing to do with it any longer. Though the Girdawar was subjected to a searching cross-examination by the learned counsel for the non-applicants nothing was drawn out from him which would indicate that possession of the land had not changed hands. The non-applicants executed a supurdnama in which they set forth clearly that they had taken possession of the land in dispute. On the following day, as stated by the Girdawar in his evidence, the applicants obstructed the non-applicants while they started ploughing the land The Girdawar pointed out to the applicants that they were not justified in preventing the non-applicants from ploughing the land as he had delivered possession to them on the previous day. The applicants persisted in their attitude and the Girdawar went away leaving the parties to fight out the matter between them. It is also dear from the testimony of the Girdawar that the non-applicants deliberately accepted the delivery of possession given by him and did not repudiate it. It is also apparent from his evidence that the non-applicants did not raise any objection to the procedure adopted by the Girdawar nor did they complain subsequently within a few days of the delivery of possession that the warrant had not been fully and properly executed. Even if we assume for the sake of argument that the Girdawar instead of delivering actual possession gave them symbolical possession over that land in dispute the conduct of the non-applicants leaves hardly any room for doubt in our minds that they accepted such possession willingly being under the impression that it was sufficient to put them back on the land in dispute. Such symbolical possession between the parties would be deemed to amount to actual possession It did not constitute paper possession, as was contended by the learned counsel for the non-applicants. Paper possession does not amount to delivery of possession at all. If the Girdawar had not gone to the spot and had recorded documents indicating that possession had changed hands without observing any formalities the non-applicants would have been justified in contending that they had not received possession of the land in dispute. Paper possession is a nullity in the eye of law. With these observations we proceed to consider the authorities which have been cited before us by the learned counsel for the non-applicants as well as by the learned counsel for the applicants in order to determine the crucial point whether in their light it can be held that possession had actually changed hands in the manner provided under Rule 35 of Order 21. The first authority on which reliance has been placed by the learned counsel for the non-applicants is R. L. W. 1952 page 62-B. In this case the dispute was between brothers who had compromised the matter subsequently. When the trial in pursuance of this agreement proceeded to re-instate the applicant, the opposite-party raised an objection that as both the parties were co-sharers only symbolical possession could be given under Order 21, Rule 35 sub-clause (2), and not actual possession under sub-clause (1 ). It was held that as the suit Was not between co-sharers and as the parties had not cultivated the share of the land which had fallen to them the question of giving symbolical possession would not arise, and the applicant was entitled to actual possession. The learned Member of the Board did not go into the point as to what would constitute actual possession in the peculiar circumstances of that case, nor did he determine in what cases symbolical possession would be deemed to amount to actual possession. The facts of the case were absolutely different from the facts of the present case. The point involved in the case was also different. The second authority to which a reference has been made by the learned counsel for the non-applicants is R. R. D. 1955, page 91-B (March, 1955 ). The facts of that case are clearly distinguishable from the facts of the present case. In that case order of the Tehsildar was clear that the opposite-party should give possession over only such area as was not under crops and as most of the area was under crops physical possession could not be given to the appellant as reported by the Girdawar Quanungo on 17. 12. 1949. In that case symbolical possession had not been given nor did the learned Members of the Board decide in which cases it would be deemed to amount to actual possession. ' This authority would not therefore stand the non-applicants in good stead. The third case is A I. R. 1949 Patna page 152. In this particular case the question which was posed before the Special Bench was whether in proceedings under sec. 145, Cr. P. C. the Magistrate had to decide the question of actual possession or had to base his decision upon constructive possession. It was held that in a proceeding under sec. 145, Cr. P. C. the Magistrate should not infer possession from title on the ground that possession followed title. In this case the scope of possession as given in sec. 145, Cr. P. C. was determined. From the principal enunciated in this case it is not possible for us to construe R. 35 of O. 21, Cr. P. C. The authority, to say the least, is not relevant to the point in issue before us. The fourth authority to which a reference was made on behalf of the non-applicant is A. I. R. 1918 Madras page 207- The facts of this case were somewhat complicated. The suit was for the recovery of rent for certain lands for the year's 1910-11, 1911-12, and 1912-13. The defendants plea was that he was dispossessed of the land by the real owner and was,-therefore, not bound to pay rent after the date of his dispossession to the plaintiff who was the assignee of his landlord. The point for determination was whether the defendant bad been dispossessed by a third person who said that he had obtained symbolical possession of the land. Their lordships pointed out that symbolical possession was given only in cases where the party in actual possession was entitled to remain in such possession as in cases of delivery under O. 21, R. 96 C. P. C. and should not be confounded with cases where the party was entitled to actual possession but obtained only what was called a paper delivery i. e. , where he got no possession at all. The facts of the present case can be clearly distinguished from the facts of the case, which was before their lordships. Coming to the fifth authority, A. I. R. 1928 Calcutta 344 we may point out that this decision also deals with sec. 145, Cr. P. C. and lays down that a person who has obtained what is known as symbolical possession through a civil court is not necessarily in actual possession. We underline the word necessarily. The sixth case is reported at page 25 A. I. R. 1941 Peshawar. In this case it was held that symbolical possession could only be delivered in accordance with the provisions of Order 21, Rule 35, Sub-Rule (2), C. P. C. This rule prescribes two conditions precedent for the delivery of symbolical possession. One was announcement by the beat of drum and the second was fixation of a copy of the warrant on a conspicuous part of the property in question When either of these conditions was not fulfilled symbolical possession could not be said to have been delivered. This authority was dissented from in 32 A. I. R. 1954 Oudh page 96, wherein it was held that a formal defect in effecting delivery of possession would not invalidate the delivery of possession if there had been no substantial injustice or prejudice to the interest of the judgment debtor. In the present case it is correct that the warrant, though its contents were read out by the Girdawar, was not affixed to a conspicuous part of the land. The affixation of a warrant is considered necessary in order to serve as a notice to the person in possession of the land that its possession had been taken away from him. Where such a person is informed, this defect, which is of a technical nature, would not prove fatal. In the present case the applicants were fully made aware of the circumstance on the following day that the possession of the land had changed hands. The seventh authority on which reliance was placed is R. L. W. 1956 page 92. This authority lays down that if the attachment was not made according to the provisions of Rule 54, Order 21 G. P. C, inasmuch as a copy of the order for attachment was not affixed to a conspicuous part of the property the attachment was invalid. This authority deals with a different matter and does not lay down what constitutes delivery of actual possession as distinguished from symbolical possession. The last authority which was cited before us on behalf of the non-applicants was A. I. R. 1941 Oudh page 429. This authority determines to what extent admissions which were made in ignorance of the legal rights and ran counter to facts could be binding on a person making them. An admission if not conclusive would certainly shift the onus to the person making it and would cast a heavy burden upon him to prove facts which were inconsistent with those contained in his admission.
(3.) AFTER having examined the authorities cited by the learned counsel for the non-applicants we proceed to consider the decisions which were relied upon by the learned counsel for the applicants in support of his contention that possession as borne out by documentary and oral evidence had in fact changed hands and the non-applicants were, therefore, not entitled to put in a second application for execution of the order of the Board. The first authority, R. R. D. 1956 28, is a decision of the Board in which the point involved was similar to that involved in the present case. The learned Member of the Board followed A. I. R. 1931 Calcutta 427 and held that Mangilal who was given possession of the land in dispute and had executed a supurdnama for the same could not claim that possession be delivered to him again. The trail court was perfectly justified in holding that the order could not be executed a second time. We are in perfect agreement with the reasoning on which this decision is based. It lays down a principle of law which was formulated by their lordships of the Privy Council as early as 1917. In A. I. R. 1917 Privy Council on page 201, they approved of a Full Bench decision of the Calcutta High Court which was pronounced as early as 1880 in 5 Calcutta 584 that symbolical possession availed to dispossess the defendants sufficiently because they were parties to the proceedings in which it was ordered and given. Their Lordships saw no reason to question this decision or to hold that the rule of procedure should be altered. This decision was subsequently followed in A. I. R. 1931 Calcutta page 427, A. I. R. 1948 Patna page 417, and A. I. R. 1950 Pepsu 22. In the Calcutta and Patna cases the point involved for determination in this revision was dealt with at full length and it was held that where symbolical possession was delivered of immovable property in execution of a decree to the person entitled to actual possession thereof it was to be deemed to be equivalent to actual posses ion as against the judgment-debtor. The delivery of symbolical possession is the line of emarcation between possession precedent and possession subsequent. In Calcutta case it was, further, emphasised that if a decree holder-accepted such possession deliberately and did not repudiate it he could not subsequently turn round and allege that possession had not been given to him. The ratio decidendi of these cases is that between parties to a suit or a proceeding symbolical possession in certain circumstances is considered equivalent to actual possession. These circumstances turn mainly upon the conduct of the decree-holder which would determine whether he had received possession of the immovable property in a particular case or not. They would a depend upon the nature of the property and the steps taken by the bailliff to announce whether he had delivered possession of the property or not. Applying: this test to the facts of the present case we feel constrained to remark that the learned Additional Commissionor was not justified in holding that full and effective possession had not been given as the extent of the land in dispute had not been properly determined. The non-applicants pointed out the land in dispute to the Girdawar and made it sufficiently clear to him that this was the land which had been taken away from their possession earlier. The execution of the supurdnama coupled with the conduct of the non-applicants leaves hardly any doubt in our minds that they had deliberately accepted possession whether symbolical or actual from the Girdawar and had not repudiated it. It has been clearly brought out in the Pepsu case, which is comparatively a recent authority, that technical irregularities committed in delivery of symbolical possession in case where the decree provides for actual possession are not very material as between the parties to the proceedings and such possession gives a fresh start of limitation to the decree-holder for getting actual possession of the property. In the present case the applicants obstructed the non-applicants from ploughing the land on the following day and the Girdawar, whose evidence appears to be worthy of credit, made it clear to them that the land had passed out of their possession to the non-applicants. In occupying the land without lawful authority they were committing an act of trespass for which they could be sued. For the aforesaid reasons we allow the revision, set aside the order of the learned Additional Commissioner and restore that of the learned S. D. O. dismissing the application of the non-applicants on the ground that the order which had been fully executed once could not be executed a second time. .;