The institution of a suit for recovery of possession arrests the running of adverse possession and the same position continues until the decree for recovery continues to be executable.

R. N. MISRA, J.

( 1 ) LEGAL representatives of the plaintiff are in appeal against the affirming judgment and decree of the learned Additional District Judge of Dhenkanal in a suit for title, confirmation of possession and permanent injunction.

( 2 ) O. S. No. 40 of 1954 had been filed on 11-3-1954 for recovery of possession from the plaintiff on the allegation that the defendant had been forcibly dispossessed on 16-12-1953 and the suit was decreed for recovery of possession on 7-7-1955. Execution of the decree had been levied and the last execution case being No. 12 of 1966 for recovery of possession was pending when on 19-12-1966, the plaintiff filed the present action being Title Suit No. 75 of 1966 alleging in para 12 of the plaint :-

"that as the defendants are not to dispossess the plaintiff from the suit land by levying execution of the decree in O. S. No. 40 of 1954, vide Execution Case No. 12 of 1966, pending in the court of the munsif, Dhenkanal, and since in the Settlement of 1965 the disputed land has been wrongly recorded in the names of the defendants, the plaintiff institutes the suit for declaration of his title, confirmation of his possession and a permanent injunction against the defendants restraining them not to interfere with the plaintiff's possession of the suit land at any time in future. "

On behalf of the plaintiff, it was contended that a mere decree did not arrest the running of adverse possession and as plaintiff has remained in possession from 16-12-1953 before Execution Case No. 12 of 1966 was instituted on 15-41966, he had already remained for more than twelve years by way of adverse possession and had acquired title to the property. In support of this contention reliance was placed in a single Judge decision in the case of Damodar Jew thakur v. Hema Narayan Misra, AIR 1969 Orissa, 54. When both the courts below negatived that plea, in Second Appeal the same contention has been reiterated. When the Second Appeal was placed for hearing, our learned brother das, J. directed it to be placed before a Division Bench in consideration of the fact that the legal position was somewhat conflicting and that is how the appeal has now been placed before us.

( 3 ) MR. Mohanty for the appellants seeks support from the following observations of the learned single Judge In Damodar Jew Thakur's case (AIR 1969 Orissa 54 at p. 55) :--

"the real difficulty arises with regard to 22 acres which is the subject-matter of alienation by permanent Pattas in favour of defendants 21 to 49. These Pattas were granted in April, 1944. The concurrent findings of the courts below are that these transferees are in possession over since then till the date of the suit which was instituted on 21-12-1956. On this finding the plaintiff's suit is prima facie barred by adverse possession as the transferees are in possession for more than 12 years in their own right, title and interest openly. "

After extracting a paragraph from Lord Buckmaster's judgment in the case of subbaiya Pandaram v. Md. Mustafa, AIR 1923 PC 175, the learned Judge continued to say:-

"there is clear indication in the aforesaid passage that after a declaratory decree is obtained unless appropriate steps are taken for recovery of possession, the declaratory decree by itself would not prevent the running of time and the adverse possession prior to the suit can be tacked to the adverse possession continuing thereafter. There is conflict of thought as to whether the aforesaid principle would apply to a decree for declaration of title and recovery of possession not followed by delivery of possession either symbolical or actual. Most of the authoritative pronouncements are in favour of the view that a mere decree for declaration of title and recovery of possession would not interrupt the running of time. It stands on the same footing as a mere declaratory decree. If, however, the decree for recovery of possession is followed by actual seizure of the property either in execu