BOMBAY HIGH COURT

                                          Mahadev Sakharam Parkar

                                                         Vs

                                               Janu Namji Hatley

            (Basil Scott, Kt., C.J. Russell and Chandavarkar .JJ Batchelor and Heaton, J.)

                                                   05.01.1912

                                                  JUDGMENT

Basil Scott, Kt., C.J.
1. We answer the question referred in the negative. Symbolical possession is not real possession
nor is it equivalent to real possession under the Civil Procedure Code except where the Code
expressly or by implication provides that it shall have that effect.

2. Sections 264 and 319 of the Code of 1882 prescribed and impliedly gave effect to symbolical
possession under certain specified conditions but symbolical possession was neither prescribed
nor recognised by Sections 265 or 318 of that Code or by the corresponding sections of the
earlier Codes nor in our opinion do the Bengal Full Bench decisions, Jitggobundhu v. Ram
Chunder By sack1 and Joggobundhu v. Purnanund2 suggest the contrary.

3. Under the new Code of 1908, Rule 35 (2) of Order XXI provides one additional case in which
symbolical possession may be resorted to.
4. We overrule Gopal v. Krishnarao3 and Mahadeo v. Parashram4 which, we think, were
wrongly decided.
Cases Referred.

1(1880) I.L.R. 5 Cal. 584
2(1889) I.L.R. 16 Cal. 530
3(1900) I.L.R. 25 Bom. 275
4(1900) I.L.R. 25 Bom. 358