The auction-purchaser of an undivided interest in a coparcenary property is not bound to execute the decree to obtain symbolical delivery of possession, and in the absence of taking such possession, the suit for partition is maintainable.

JUDGMENT :

G.K. Misra, C.J. - The plaintiff-petitioner is the decree-holder. In execution of a decree dated 24th April, 1961, he purchased one fourth share of opposite party no. 1's interest in the coparcenary property of which opposite parties 2 to 7 are the co-sharers on 3-4-1964. The petitioner put the decree into execution and got symbolical delivery of possession. Bat the execution became in-fructuous. Ultimately, in 1966, he filed T.S. No. 17 of 1966 for partition of his one-fourth share. This suit was decreed by the learned Munsif on 6-5-1969.

In appeal, the 3rd Additional Subordinate Judge, Cuttack, called upon the Munsif to record as finding a to whether the suit for partition was maintainable without the decree being put to execution for getting symbolical delivery of possession jointly with other co-sharers. His direction was to the effect :

"The learned Munsif shall submit his findings with additional evidence taken if required to the Court within three months from the date of order."

Against this order calling upon the Munsif to record a finding on the particular issue that the Civil Revision has been filed.

2. The sole question for consideration is whether the auction-purchaser of an undivided interest in a coparcenary property is bound to execute the decree to obtain symbolical delivery of possession, and whether, in absence of taking such possession, the suit for partition is not maintainable.

3. The legal position is well-settled and the law is not in conflict that it is open to him to file a suit for partition on the basis of the decree to carve out his specific interest where after he would obtain delivery of possession of the specific property allotted to him in partition. It is unnecessary to refer to a plethora of authorities. The matter is concluded by the decision of the Supreme Court in Sidheshwar Mukherjee v. Bhubaneswar Prasad Narain Singh and others AIR 1953 S.C. 487. The same view has also been taken in Manikayala Rao v. Narasimha Swamy AIR 1966 S.C. 470.

4. Mr. Patra vehemently contended that a different view has been taken in the latter case. The confusion in such an argument arises on account of the fact that it ignores the facts of each particular case. Manikayala Rao v. Narasimha Swamya AIR 1966 S.C. 470, related to a case where the question of adverse possession was examined. In that case after purchasing the undivided share of a coparcenary property the decree-holder took symbolical delivery of possession. The question for consideration was whether taking of such symbolical delivery of possession interrupted the running of adverse possession. In that connection it was contended that the taking of symbolical delivery of possession was a nullity and as such, should be ignored, and therefore, it cannot constitute an interruption in the running of adverse possession. This contention was negatived by their Lordships by an analysis that though the auction-purchaser was not required in law to take delivery of symbolical possession, he, in fact, took such delivery under orders of the Court, and the order of the Court was not a nullity, as it was not without jurisdiction, but was passed in exercise of jurisdiction illegally. Their Lordships, therefore, recognized the fundamental proposition of law that the auction-purchaser of an undivided interest in a coparcenary property is only to file a suit for partition and carve out his specific interest through that process and is not called upon in law to take delivery of symbolical possession. Thus, Manikayala Rao v. Narasimha Swamy AIR 1966 S.C. 470 is in line with Sidheswar Mukherjee v. Bhubaneswar Prasad Narain Singh and others AIR 1953 S.C. 487.

A learned Single Judge of this Court observed in I. Ramamurty v. Khetra Praja 37 C.L.T. 271, that the Division Bench decision of this Court in Laxminarasamma v. Ranganayakamma AIR 1964 Orissa 43, does not lay down the correct law, as it was contrary to Manikayala Rao v. Narasimha Swamy AIR 1966 S.C. 470. As the facts i