The central legal point established in the judgment is that delivery proceedings are not conclusive against the defendants, and independent evidence should be considered in determining possession.

1. This appeal has been referred to a Division Bench on the ground that there is an apparent conflict in the decisions of this Court reported in Sadasivan Pillai v. State (1959 KLT. 501) and Vellakutty v. Karthiyani (1967 KLT. 667).

2. The second appeal which is filed by defendants 2 to 10 arises out of a suit for permanent injunction to restrain them from interfering with the possession of the plaint property by the plaintiff.

3. The plaint schedule property is a paddy land covering an extent of 1 acre 80 cents. The suit was dismissed by the trial court and it was decreed by the learned appellate judge.

4. The plaintiff claims possession of the plaint schedule property in pursuance to the delivery in execution of the decree in O. S.65 of 1957 on the file of the Palghat Sub Court evidenced by Ex. P2. The defendants while denying the title and possession of the plaintiff claim to be in possession of the property. The defendants deny the delivery of possession of the property under Ex. P2 to the decree holder in O.S. 65 of 1957 and they have also adduced evidence to prove their possession of the plaint schedule property even after the date of Ex. P2.

5. The learned District Judge without examining the evidence given by the defendants upheld the possession of the plaintiff merely on the basis of Ex. P2 relying on the decision in Sadasivan Pillai v. State (1959 KLT. 501) which has followed a decision of the Travancore Cochin High Court reported in Velayutha Kurup v. State (1953 KLT. 31). The learned judge observed:

"On the question of possession, I think that Exhibit P2 is decisively in favour of th-plaintiff. It can be seen from Exhibit P2 that the entire survey No. 64 was delivered over to the plaintiff on 8 41963. P. W. 3, the Village Officer who has attested Ext. P2, the delivery account, swears about the demarcation of the property and delivery of the same. There is no reason to disbelieve him. So the fact of delivery is proved."

After referring to the decisions already referred to, the learned judge concluded as follows:

"So it is evident that once the property was delivered over to the plaintiff, the defendants cannot contend that they are in possession of the property since they are not parties to the decree in which delivery was effected and their remedy is to seek re-delivery in appropriate proceedings."

The learned judge therefore did not consider the evidence adduced by the defendants to prove that in spite of Ex. P2 they have been continuing in possession of the property.

In Velayudha Kurup v. State (1953 KLT. 31) Koshi, C. J. observed: " once it is found that the Amin had gone to the spot and put the decree-holders in physical possession, if persons other than the judgment-debtor claim to be in possession on the date of the delivery, the remedy open to them was to seek re-delivery under the provisions enacted in Order XXI, Code of Civil Procedure, or to bring a fresh suit to recover possession."

Those observations were made after the learned judge has found on an appreciation of the evidence that there was in fact transfer of possession in pursuance to the delivery proceedings. The dictum laid down by the learned judge after such a finding is supported by 0.21, R.100, sub-rule (1), CPC. which reads thus:

"Where any person other than the judgment-debtor is dispossessed of immovable property by the bolder of a decree, for the possession of such property or, where such property has been sold in execution of a decree by the purchaser thereof, be may make an application to the Court complaining of such dispossession."

The above provision is based on the principle that when a stranger to an execution proceeding is dispossessed he cannot take the law into his own hand and trespass on the property actually delivered Following this decision Anna Chandy, J. in Sadasivan Pillai v. Stale (1959 KLT. 501) observed as follows:

"The attempt of the accused with the help of his political friends to take the law into his hands, is a neg