TMI Blog1958 (3) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... m on 6-12-1934 It appears that one Mat Ram filed a suit for the recovery of certain amount against the two brothers. In 1928 the suit against Harnam was dismissed hut it was decreed against Amar Singh. In execution of his decree Mat Ram got attached the equity of redemption of Amar Singh's share in the house in March 1933. Jagmal filed objections under Order XXI rule 58, Civil Procedure Code, on the ground that he was owner of the western half by purchase and that this portion could not be attached and sold in execution of the decree of Mat Ram. The objections were dismissed on 8-1-1934 on the ground that the same had been filed after long delay. Neither Jagmal nor Pat Ram, his successor-in-interest, filed any suit under Order 21 rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... share which was 1/4th of the entire house. The Additional District Judge accordingly granted in favour of the plaintiffs a decree for possession by partition of one-fourth of the house and then remitted issues regarding improvements etc. to the trial Court for decision. Dissatisfied with this decision the plaintiffs have filed this second appeal from order in this Court and their point in the appeal is that they are entitled to get possession of one-half of the entire house instead of one-fourth. 2. The learned counsel for the defendants endeavoured to support the decision of the lower appellate Court on the ground that there was no valid delivery of symbolical possession to the plaintiffs in the present case. If this plea prevails, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stituted by him under Order 21, Rule 58, Civil Procedure Code. In that application he had claimed absolute title in the western half of the house by purchase and sought the relief that this portion should not be attached and sold. The application was dismissed on the ground that it had been filed after long delay. Therefore Tagmal was denied the right claimed by him by purchase. The same title he is setting up as a defendant in the present suit, and this title he is debarred from asserting even as a defendant 4. This legal proposition was not seriously challenged by the defendants' counsel. He, however, urged that the defendants are in actual possession of the entire property since long and that they can defend this possession by put ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bahadur AIR 1917 PC 197. It follows that the plaintiffs dispossessed Amar Singh, the judgment-debtor, and got actual possession of his rights in the property. This right was equity of redemption in half of the entire house. This position cannot be disproved unless the defendants are allowed to show that Tagmal had purchased absolutely the western one-half of the house from Amar Singh and Harnam. This they are precluded from showing by the provisions of Order 21 Rule 63, Civil Procedure Code. Jagmal's failure to assert his right under the sale deed by a suit under Order 21 Rule 63, Civil Procedure Code, has the consequence of the sale not being effective and must be deemed to be nonexistent qua the plaintiffs. The result is that T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have the effect of transferring rights from one party to another party. These conclusions have no application to the present case, in the present case. all that the plaintiffs are claiming is that Jagmal is precluded from asserting his title by purchase as on the dismissal of his application he failed to file a suit under Order XXI rule 63, and therefore the transfer by that purchase cannot affect the plaintiffs' right. 6. The learned counsel then relied on Laxman Ganesh v. Bahrain Lahanu. AIR 1948 Bom 18. In that case all that was held was that the defendant who had not filed a suit under Order XXI rule 63, Civil Procedure Code, after his objections had been dismissed, was precluded from proving his the to the properly, but that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Civil Procedure Code, that the applicant had become owner of the property by adverse possession and therefore that right could be asserted in subsequent proceedings in spite of the fact that no suit under Order XXI Rule 63 was filed. After all Order XXI Rule 63 makes Qua decision on the objections conclusive relating to the right claimed in the objections if the order is not challenged by a suit. In the present case all that has been held is that the defendants cannot assert the title under the stile deed which was in fact rejected in the application under Order XXI Rule 58. For these reasons all these cases are distinguishable and have no application to the present case. I, therefore, hold that the defendants cannot set up their title ..... X X X X Extracts X X X X X X X X Extracts X X X X
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