Case: SHAMSHER SINGH &amp; ANR Vs. LT. COL. NAHAR SINGH (D) THR. LRS. &amp; ORS

2.1 One Tarapada Dutta owned premises No.15, Sahanagar Road, P.S. Tollygunge, Calcutta. An agreement for sale was executed by Anadi Dutt, who claimed to be son of Tarapada Dutta in favour of Rajvindar Singh in respect of 4 Kh. 4 Ch. and 00 sft. of land and structures at premises No.15. Another agreement for sale was entered by Anadi Dutt with Shamsher Singh in respect of 4 Kh. 6 Ch. and 6 Sft. of land and structures of premises No.152.2 The respondent had filed a T.S. No.211 of 1990 before the 3rd Munsif at Alipore praying for decree of declaration of his right with regard to premises in question on the basis of adverse possession2.3 Anadi Dutt having not executed the sale deed in pursuance of agreement for sale dated 07.05.1990, two title suits being Suit No.50 of 1994 and 51 of 1994 were filed by Rajvindar Singh and Shamsher Singh, which were decreed ex-parte on 20.12.1994. In pursuance of decree of the Court, two separate Deeds of Conveyance were executed in favour of Dayal Singh (Nominee of Rajvindar Singh) and in favour of Shamsher Singh. Decree holders filed two execution cases vide Execution no. T.Ex. No.09 of 1995 and T.Ex. No.10 of 1995 seeking delivery of possession of the suit property. First Time Court Bailiff could not succeed in delivering possession, however, subsequently the Court Bailiff with the help of police delivered Khas vacant possession of the suit premises to the Decree Holder on 12.04.19962.4 After lapse of 30 days, respondent No.1 filed two Misc. cases Nos. 10 of 1996 and 11 of 1996 against Rajvindar Singh, Shamsher Singh, Dayal Singh and Asis Dutt under Order XXI Rules 98, 99 and 100 CPC before the 6th Assistant District Judge, Alipore. In the said two Misc. cases, respondent No.1 claimed that his father Sardar Iqbal Singh was the occupier and was running his business under the name and style as Public Transport Business in the suit premises and after his death, respondent No.1 has been running a business under the name and style of ExService United Coal Enterprise (P) Ltd. In the above said Misc. Case No.10 of 1996, the respondent No.1 claimed that Anadi Dutt was not the son of Tarapada and it was Asis Kumar Dutt, who was the only son, owner and only legal heir of Late Tarapada. It was also claimed that a T.S. No.211 of 1990 was pending before 3rd Munsiff at Alipore filed by respondent No.1, in which he claimed right and title of the suit premises on the basis of adverse possession. It was further claimed that Shamsher Singh, Rajvindar Singh and Dayal Singh had fraudulently obtained decree in collusion with Anadi Dutt and has evicted the respondent No.1 from the suit property2.5 In Misc. proceeding application, although, the respondent No.1 has impleaded Asis Kumar Dutt but he neither contested the Misc. application nor challenged the title of Anadi Dutt, against whom an ex-parte decree was passed. On 21.01.1999, Dayal Singh also got a deed of conveyance executed in his favour by Asis Kumar Dutt, alleged true legal heir of the Late Tarapada Dutta. Dayal Singh got his name mutated in Kolkata Municipal Corporation2.6 The Executing Court by order dated 10.08.2004 rejected Misc. Case No.10 of 1996 and Misc. Case No.11 of 1996 filed by respondent No.1. Trial court held that respondent No.1 failed to prove that he has acquired title by way of adverse possession. Against the order dated 10.08.2004 rejecting the Misc. applications filed by respondent No.1, first appeal, FMA No. 720 of 2005 was filed by respondent No.1 in the Calcutta High Court, which appeal has been allowed by Calcutta High Court by the impugned judgment dated 15.12.2009. The High Court by impugned judgment has set aside the order of the Executing Court dated 10.08.2004 disposing the application filed by respondent No.1 under Order XXI Rules 98, 99 and 100 with a direction that appellant (respondent No.1 in this appeal) should be put back into possession of the suit property. Aggrieved by the judgment of the High Court, this appeal has been filed.

Reasoning:
7. There is no dispute between the parties that the premises in question was originally owned by one Tarapada Dutta.8. In the application, which was filed by respondent No.1 for putting him back into possession under Order XXI Rules 98, 99 and 100 CPC, the respondent No.1 has claimed his possession since 1965 after death of his father. The respondent No.1 in his application has also relied on filing of suit for declaration of his title being Suit No.211 of 1990. There is no dispute between the parties that in execution of decree of specific performance, the appellants were put in possession and respondent No.1 aggrieved by his dispossession had filed an application under Order XXI Rules 98, 99 and 10016. There is a marked difference between Rule 101 as it existed prior to amendment and as it now exists after 1976 amendment. Earlier a person who was a bona fide claimant and who satisfied that he was in possession of the property on his own account or on account of some other person then the judgment-debtor could have been put in possession of the property on an application under Rules 100 and 101, whereas now after the amendment for putting back into possession an applicant has not only to prove that he is in bona fide possession rather he has to prove his right, title or interest in the property. What was earlier to be adjudicated in a suit under unamended Rule 103 is now to be adjudicated in Rule 101 itself, thus, for being put in possession, an applicant has to prove his right, title or interest in the property and by simply proving that he was in possession prior to the date he was dispossessed by decree-holder, he is not entitled to be put back in possession.17. In view of the statutory scheme which is delineated by amended provisions of Rule 101, the submissions of the counsel of the respondent that by simply proving the fact that he was in possession prior to he being dispossessed by decree-holder, he should be put back in possession cannot be accepted. The respondent-applicant had to prove his right, title or interest in the property to be put back in possession20. Thus, the trial court returned categorical finding that appellant has failed to prove his right, title and interest and his application deserves to be rejected. The High Court in appeal filed by respondent No.1 without upsetting the finding of the Executing Court that respondent No.1 failed to prove his title by adverse possession allowed the appeal by making following observations:-Be that as it may, the question whether the appellant has obtained any title in respect of the suit property by way of adverse possession or not is not being decided by this Court and thus this Court is not going into the said question. But the fact remains that the appellant was very much in possession of the suit property when the respondent No.1 took delivery of possession of the suit property through the Courts bailiff without any proceeding being initiated against the appellant and without the appellant being served with any prior notice with regard to such delivery of possession…………..27. The purpose of amendment under Rule 103 is also that any adjudication made under Rule 101 shall have same force and be subject to the same conditions as to an appeal or otherwise as if it was a decree. Rule 101, thus, affords an opportunity to get all issues relating to right, title or interest in the property to be determined. When the respondent No.1 filed his application claiming to be put back into possession, it was obliged to establish its right, title or interest in the property without which his application could not have been allowed. The Executing Court has considered the application of respondent No.1 in right perspective and has clearly held that respondent No.1 failed to prove his title by adverse possession, hence application deserves to be rejected.28. High Court committed error in observing that in application proceedings under Order XXI Rules 99, 100 and 101, the Court is not to decide such question. Without determination of right, title or interest, the application could not have been allowed. We having already extracted the observations of the High Court, where it clearly held that the title in respect of the property by way of adverse possession need not be gone into in the appeal before it. The above observation of the High Court was erroneous. In the proceeding under Order XXI Rules 99, 100 and 101, right, title or interest has to be determined and without establishing right, title or interest, the respondent No.1 cannot claim that he should be put back into possession. We do not accept the submission of the learned counsel for the respondent that on mere fact that respondent No.1 was in possession of the premises prior to being dispossessed, they should be put back into possession. For putting back into possession, the respondent No.1 was obliged to establish his title to the property by adverse possession, without which, he could not have asked the Court to put him back into possession. The High Court clearly erred in allowing the appeal and the Executing Court has rightly rejected the application filed by respondent No.1. We may further notice that suit No.211 of 1990 filed by respondent No.1 seeking declaration of title to the property by adverse possession has been subsequently dismissed by decree on 16.03.2009 and no steps have been taken for restoration of the suit29. We do not find any error in the order passed by the Executing Court and the High Court committed error in allowing the appeal, directing the respondent No.1 to be put back into possession.