Law: Bengal Tenancy Act (VIII of 1885)

Section: 3

Law: Civil Procedure Code (V of 1908)

Section: 100

(a) Bengal Tenancy Act (VIII of 1885),. Sched. III, Art. 3-- Court sale-"Symbolical" possession obtained by purchaser-- Amounts to dispossession of judgment-debtor-Transferee from certificate-debtor not made party to certificate proceedings-- Certificate-creditor cannot be allowed to fasten a symbolical possession against such transferee.   With regard to sale by Court, the position is, that, as against the judgment-debtor, symbolical possession obtained by the purchaser would amount to dispossession of the said judg ment-debtor. The reason is obvious, because even a token possession would prevail against the judgment-debtor, who is a party to all the proceedings in the suit and in execution proceed ings relating to it. Consequently, it is clear that even a symbo lical possession, as against him, is actual possession because, in the eye of law, the token possession is taken in his presence although he may not be physically present at the time of a symbolical delivery of possession. There can be no such exten sion of the law to a party outside the suit. With regard to a person, who is not a party to the suit, physical possession, that is; actual possession must be established. This is a well-settled principle.   The extension of the doctrine of symbolical possession is also of limited application. Its logic is also clear. In certificate sale, where X is the judgment-debtor and, a party to the certificate proceedings, there is no manner of doubt that symbolical possession would prevail against X because he was the judgment- debtor. The same position will apply to subsequent transferees of X. The symbolical possession will apply to such transferees. But, the crucial point is, was X legally a proper party to the proceedings resulting in the sale? If X had ceased to be the owner of the property in respect of which there has been a default in payment of dues, he could not be made a certificate-debtor with regard to such dues for the simple reason that his interest in the defaulting property was already extinct. By merely making him a party to the certificate-proceedings, to the exclu sion of his transferees, the certificate-creditor cannot be…