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He stated that he was interested in the field as be was its protected lessee and as such 'he was entitled to receive compensation that may be granted. Ratio |
But be said that he was entitled to the said amount. Ratio |
Finally, the prayer in the written statement was to stay the delivery of possession of the bungalow at least for two months. Ratio |
It would thus be seen that in his written statement filed on 24 3 1959 the appellant did not deny the publication of notice on the spot under section 9(1) nor did he propose to put any impediment in the taking of possession of the land comprised in Survey No. 30/2. Ratio |
He merely wanted the stay of taking possession in respect of the house. Ratio |
The total area mentioned in this letter is 234 acres 31 gunthas including 19 acres and 16 gunthas in Survey No. 30/2. Ratio |
The Revenue Inspector endorsed "handed over as above." On the facts and in the circumstances of this case it is difficult to accept the argument put forward on behalf of the appellant that the taking and giving of possession on 3 4 1959 was only on paper and not on the spot. Ratio |
The High Court in its judgment has referred to a letter dated 7 4 1959 by the Land Acquisition Officer to the Collector, Akola to say that the appellant represented before him that a stay order had been passed in respect of Survey No. 30/2 by the Minister for Agriculture and the proceedings for taking possession of thi... |
Thereupon, the Tehsildar made a report dated 11 4 1959 stating therein "possession has already been delivered to the Principal, Agricultural College. Ratio |
Akola and the possession receipt is enclosed. Ratio |
In case possession of section No. 30/2 is still to be withheld, the Principal, Agricultural College, S.D.O., P.W.D. and the lessee of the field would be approached in this respect and necessary action would be taken accordingly. Ratio |
" As a matter of fact it would appear from the letter dated 16 4 1959 written by the Assistant Secretary of the Government of Bombay to the appellant in reply to his letter addressed to the Minister for Agriculture a copy of which was forwarded to the Collector, Akola that for the first time in this letter he was reque... |
Then comes the letter dated 4 5 1959 written by the Land Acquisition Officer to the Collector, Akola. FAC |
Reference was made to all these 258 documents on behalf of both the parties. FAC |
The S.D.O. and the Land Acquisition Officer sought instructions of the Collector as to what action was to be taken in respect of land measuring 19 acres 16 gunthas out of Survey No. 30/2 "the possession of which has already been delivered to the Agricultural Department". FAC |
The next letter is one from the Principal of the College to the Land, Acquisition Officer dated the 27th May, 1959 asking clarification of the stay order received in regard to Survey No. 30/2. FAC |
The reply is dated 4 6 1959 informing him that clarification will be made on receipt of further communication from the Collector. FAC |
The next letter is dated 18 7 1959 from the Principal of the College to the Director of Agriculture stating therein that possession of the whole field No. 30/2 excluding the area of 1 acre 16 gunthas which was also required for the purpose of the College, was delivered on 3 4 1959 but in view of the Government order co... |
Then comes an important letter again referred at the Bar on behalf of both the parties written by the Special Land Acquisition Officer, Akola to the Commissioner, Nagpur on the 13th December, 1961. FAC |
The difficulty in releasing the land under section 48 (1) was pointed out and further, in this letter it is stated "Taking over possession of IA 15G of land to be acquired under urgency clause was deferred as on joint spot inspection made by the then Sub Divisional Officer, Principal Agricultural College and S.D.O. (P.... |
" It Would thus be clear beyond any shadow of doubt that possession was taken on the spot. FAC |
On spot inspection the area of 1 acre and odd only was left out of possession. FAC |
But then in this very letter there is a statement "The Collector Akola was directed to stay the acquisition proceedings in respect of this field until further orders, though possession receipt for section No. 30/2 was passed on 3 4 1959, the possession (physical) of the entire field section No. 30/2 of Umari is still r... |
" Learned counsel for the appellant submitted that physical possession of the entire land comprised in Survey No. 30/2 remained with the appellant and the possession delivered was either on paper or merely symbolical ; it therefore, could not prevent the release of the land from acquisition under section 48(1) of the A... |
It is not necessary to refer to the further correspondence which ensued. ARG |
It may, however, be stated that because of the stay order and the dispute raised in respect of the land comprised in Survey No. 30 in the award prepared by the Collector on 30 1 1960 compensation for the said land was not determined. Ratio |
And eventually in the year 1968 an area of 12 acres 23 gunthas was sought to be released from acquisition. Ratio |
The question for consideration is was the release valid and proper ? 259 In order to appreciate what is meant by taking possession of the land under section 16 or 17(1) of the Act and what is the mode of taking such possession in regard to the waste or arable land with which we are concerned in this case, it is necessa... |
The Code does not prescribe that in respect of a particular property there can be two modes of giving possession either to a decree holder or to an auction purchaser one ,. symbolical" and the other "actual". STA |
These Rules prescribe that if the property is in the occupation of the judgment debtor or some one on his behalf the possession shall be given if necessary by removing the judgment debtor and placing the decree holder or the auction purchaser in occupation of the same. Ratio |
On the other band if the property is of such a nature that the judgment debtor cannot be in actual occupation of it, as for instance, property in the possession of a tenant, the only mode of giving possession is by proclaiming on the spot that the possession has been given to the decree holder or the auction purchaser.... |
In some decisions the former mode of possession has been called "actual '9 and the latter "symbolical". Ratio |
Really speaking even the delivery of so called "symbolical" possession is delivery of "actual" possession of the right title and interest of the judgment debtor. Ratio |
It completely dispossess him. Ratio |
It does not affect the physical occupation of the property by a person who is not bound by the decree or whose interest is not affected by sale of the judgment debtor 's interest in execution of a decree. Ratio |
If the property is land over which does not stand any building or structure, then delivery of possession over the judgment debtor 's property becomes complete and effective against him the moment the delivery is effected by going upon the land, or in case of resistance, by removing the person resisting unauthorisedly. ... |
A different mode of delivery is prescribed in the Code in the rules aforesaid in regard to a building, with which we are not concerned in this case. Ratio |
Sometimes the expression symbolical or formal delivery of possession has been used in decisions to connote the actual delivery of possession effective against the judgment debtor leading to his dispossession in the eye of law even though the duration of the dispossession may be momentary or temporary. Ratio |
In the other, the delivery is effected by the officer of the Court by going through a certain process prescribed by section 224, and proclaiming to the occupants of the property that the plaintiff has recovered it from the defendant. Ratio |
This is the only way in which the decree of the Court, awarding possession to the plaintiff, can be enforced ; and as, in contemplation of law, (1) I.L.R. 5 Calcutta 584.260 Ratio |
both parties must be considered as being present at the time when the delivery is made, we consider that, as against defendant, the delivery thus given must be deemed equivalent to actual possession." Ratio |
As against third parties, of course, this symbolical possession (as it is called) would be of no ' avail ; because they are no parties to the proceeding. Ratio |
But if the defendant should, after this, again dispossess the plaintiff by receiving the rents and profits, we think that the plaintiff would have twelve years from such dispossession to bring another suit." Ratio |
Another Full Bench consisting again of live learned Judges of the Calcutta High Court presided over by Petheram, C.J., in the case of Joggobnudhu Mitter vs Purnanund Gossami and another (1) reaffirmed teh view taken in Juggobundhu Mukherjee 's case (I.L.R. 5, Calsutta,584)in the following words : "The Full Bench held t... |
possession obtained by the plaintiff 's vendor was effective as against the judgment debtor, defendant, and that the suit brought against him within 12 years of that event was not barred by limitation. Ratio |
The plaintiffs had filed a suit to recover possession of the said land. PRE |
The principal defendant who was the appellant before the Privy Council was an idol by shebiats who was in actual possession of the land by their tenants. PRE |
The predecessors of the defendants in the suit were parties to an earlier mortgage action. PRE |
In due course a decree was obtained. PRE |
The property which, according to the finding, included the disputed land was sold. PRE |
The mortgagee decree holders were the purchasers of the property. PRE |
"The land being in occupation by cultivating tenants under an apparently bona fide title they received formal possession as usual after due proclamation by beat of drum in 1898."(vide page 200 column 2). PRE |
Lord Sumner delivering the judgment of the Board said At the same page "This interruption, if such it was, of the defendants ' actual possession was not of long duration. PRE |
Hence the necessity for the present suit. PRE |
Hence also the defence of adverse possession for more than twelve years before suit began. PRE |
" It would thus be seen that formal possession of the land in actual occupation of the tenants, which in a sense was symbolical, was ' characterised as interruption of defendant 's actual possession. PRE |
And finally the ratio of the decision of the Full Bench of the Calcutta High Court in Juggobundhu Mukherjee 's case (I.L.R. 5, Calcutta, 584) was approved thus at page 201, column 1 : "In the High Court and before their Lordships it was further argued that symbolical possession would not avail against the defendants, b... |
The High Court (1) I.T.R. 16 Calcutta 530.(2) A.T.R. 1917 Privy Council 197 (2).261 following a decision of the Full Bench in Juggobundhu Mukherjee vs Ram Chandra Bysack (1880) 5 Calcutta, 584=5 C.L.R. 548 (F.B.) held that symbolical possession availed to dispossess the defendants sufficiently, because they were partie... |
This decision is one of long standing, and has been followed for many years. PRE |
Their Lordships see no reason to question it or to hold that this rule of procedure should now be altered. PRE |
" In the case of joint possession the decision of the Privy Council in Sri Radha Krishna Chanderji 's case [A.I.R. 1917 Privy Council, 197(2)] has been referred with approval by this Court in the case of M. V. section Manikayala Rao vs M. Narasimhaswami and others(1) in paragraph 7 at page 474 in the judgment of Sarkar... |
In that case the question of defendants adverse possession arose with reference to a property which was not in occupation of any tenant. PRE |
The suit for possession after the mortgage sale and delivery was being resisted by a person who was in. PRE |
no better position than the mortgagor judgment debtor. PRE |
The learned Judge pointed out at pages 147 and 148 "When it is said that symbolical possession is not binding upon a third party but actual possession is, it is only meant that when a decree bolder or an auction purchaser has been put in actual occupation of the property every body else has been ousted from it, and con... |
This is an obvious fact and not a question of law. PRE |
On the other had if the Court simply proclaims that the decree holder or auction purchaser has been given possession but on account of the nature of the property they have not been placed in physical occupation of the property itself, such a delivery of possession can be binding only upon those who are parties to those... |
The difference, as I have said, is due to the nature of the property and not on account of the difference in the nature of possession. PRE |
The question will always be not what was the mode of delivery of possession but who has in fact been ousted by it." (1) ; (2) A.I.R. 1932 Patna 145. PRE |
262 The same learnedJudge had the occasion to consider the question again in the case ofMahabir Singh and others vs Emperor(1). PRE |
And that too with reference to a property which was not in possession of any tenant but of the judgment debtor. PRE |
The question arose in a criminal case and the confusion arising out of the use of the expressions "the actual" and "symbolical" possession was again discussed at page 568. PRE |
The writ of delivery was issued in the previous litigation under Order 21, Rule 95 of the Code and in that connection the different modes of delivery of possession over a piece of land were discussed. PRE |
The momentary possession given to the purchaser was characterised as delivery of symbolical possession by the Additional Sessions Judge and not actual possession. PRE |
The learned Judge pointed out at page 569, column 1: "It issued its writ under Rule 95, and the peon formally put the auction purchaser in possession of the property. PRE |
It is wrong to think that there Are two kinds of delivery of possession ; one actual and the other symbolical independent of the nature of possession of the judgment debtor. PRE |
Even if the delivery of possession was symbolical, its effect against the judgment debtor was the same. PRE |
" The so called paper possession or possession on paper is no delivery of possession, actual, formal or symbolical. PRE |
A Bench of the Madras High Court consisting of Rajamannar, C.J. and Rajagopala Aiyangar, J. has stated at page 762 in the case of Pathaperumal Ambalam vs Chidambaram Chettiar(2) : .lm15 "The next question is whether it makes any difference in legal effect if possession is taken through court. PRE |
The Code contemplates no notice to the judgment debtor at that stage or any objection being raised by him to the delivery of possession under Rule 95, or Rule 96, and as the full title to the property has passed from the judgment debtor to the auction purchaser, he has no interest in the property to protect. PRE |
" It has further been pointed out "The characterisation of possession taken under Order 21 Rule 96, as "paper possession" is hardly justified and runs counter. PRE |
to the principle on which the provision is based. PRE |
Symbolical possession obtained under Order 21, Rule 96 is quite a different thing from paper possession, which might correctly describe only the possession obtained by a party who being entitled to actual possession, the judgment debtor himself being in possession, obtains delivery of possession on paper without actual... |
(2) A.T.R. 1954 Madras 760. 263 It would thus be seen that a symbolical or formal delivery ' of possession as understood in law has the effect of dispossessing the judgment debtor from his right title or interest in the property. PRE |
It does not dispossess the person in ' actual possession in his own right not liable to be evicted under the decree or in pursuance of the auction sale. Ratio |
A symbolical or formal delivery of possession against the judgment debtor is giving of actual possession of the property in the eye of law and has the effect of dispossessing him although as a matter of fact he may have succeeded in resuming back, possession as before shortly after dispossession. Ratio |
In a proceeding under the Act for acquisition of land all interests are wiped out. Ratio |
Actual possession of the land becomes necessary. Ratio |
for its use for the public purpose for which it has been acquired. Ratio |
Therefore, the taking of possession under the Act cannot be "symbolical" in the sense as generally understood in Civil Law. ' Surely it cannot be a possession merely on paper. Ratio |
In the eye of law the taking of possession will have the effect of transferring possession from the owner or the occupant of the land to the Government. Ratio |
Section 9(1) of the Act reads as follows "The Collector shall then cause public notice to be given at convenient places or near the land to be taken, stating that the Government intends to take possession of the land, and that claims to compensation for all interests in such land may be made to him. Ratio |
" When a public notice is published at a convenient place or near the land to be taken stating that the Government intends to take possession of the land, then ordinarily and generally there would be no question of resisting or impeding the taking of possession. STA |
Delivery or giving of possession by the owner or the occupant of the land is not required. Ratio |
The Collector can enforce the surrender of the land to himself under section 47 of the Act if impeded in. Ratio |
taking possession. Ratio |
On publication of the notice under section (1) claims to compensation for all interests in the land has to be made ; be it the interest of the owner or of a person entitled to the occupation of the land. Ratio |
On the taking of possession of the land under section 16 or 17 (1) it vests absolutely in the Government free from all incumbrances. Ratio |
It is, therefore, clear that taking of possession within the meaningof section 16 or 17(1) means taking of possession on the spot. Ratio |
It isneither a possession on paper nor a "symbolical" possession as generally understood in Civil Law. Ratio |
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