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2005 Supreme(Cal) 557
High Court Of Calcutta
Soumitra Sen
JAI KRISHNA ARORA - Appellant
Versus
MAULVI ABDUR RAB FIROZE AHMED AND CO. - Respondent
C. S. 3443 Of 1969
Decided On : 08/24/2005
PRATAP CHATTERJI, SABYASACHI CHOWDHURY, Sourav Mohitra, TAPAN SIL
A person claiming adverse possession must prove how and when the adverse possession commenced, the nature of possession, and whether the fact of adverse possession was known to the real owner. Mere long possession does not create adverse possession.
Headnote:
EXECUTION OF DECREE - ADVERSE POSSESSION - EXECUTION PROCEEDINGS STAYED DUE TO PENDING SUIT - DECREE OF SUPREME COURT - EXECUTABILITY OF DECREE - LIMITATION - SUCCESIVE EXECUTION APPLICATION - ORDER 21 RULES 97 AND 101 OF THE CODE OF CIVIL PROCEDURE - APPLICABILITY - EFFECT OF ORDER PASSED IN SUCH PROCEEDING - DECLARATORY DECREE - EXECUTABILITY - INDEPENDENT TITLE - BURDEN OF PROOF.
Fact of the Case:
Raja Ram Singh filed an application under Order 21 Rules 97 and 101 of the Code of Civil Procedure, claiming an independent title to the suit property and seeking a trial on evidence to establish the same. The plaintiff, who had obtained a decree for eviction against the defendant, resisted the application, contending that Raja Ram Singh had failed to establish his independent right, title, or interest in the suit property.
Finding of the Court:
The court found that Raja Ram Singh had failed to prove his independent title to the suit property. The evidence on record suggested that he was merely a Darwan (watchman) of the defendant and had been residing in the suit premises by way of permissive occupation. The court also held that the execution proceedings had remained stayed due to the pendency of a suit filed by one Luftar Rahaman, and that the decree became executable only after the dismissal of that suit.
Issues: 1. Whether Raja Ram Singh had established his independent title to the suit property? 2. Whether the execution proceedings had remained stayed due to the pendency of the suit filed by Luftar Rahaman? 3. Whether the decree was executable after the dismissal of the suit filed by Luftar Rahaman? 4. Whether the plaintiff was entitled to an order for possession of the suit property?
Ratio Decidendi: 1. A person claiming adverse possession must prove how and when the adverse possession commenced, the nature of possession, and whether the fact of adverse possession was known to the real owner. Mere long possession does not create adverse possession. 2. Execution proceedings can be stayed due to the pendency of a suit that challenges the validity or enforceability of the decree. 3. A decree becomes executable only after the dismissal of a suit that has stayed its execution. 4. A plaintiff/decree-holder can file successive execution applications within the period of limitation until the decree is satisfied.
Final Decision: The court allowed the plaintiff's application for possession of the suit property and dismissed Raja Ram Singh's application with costs.
( 1 ) BY this order the above two applications are being disposed of. G. A. No. 2590 of 2003 has been filed on behalf of the plaintiff, inter alia, praying for the following reliefs:"a) Sheriff of Calcutta be directed to put the plaintiff in possession of the entire 1st and 2nd floor of the said premises No. 86, Purushottam Roy street, Calcutta by removing the defendant and any other person found therein in terms of the order dated 11th May, 1976; b) The Officer-in-Charge, Burrabazar Police Station be directed to depute sufficient number of police personnel at the premises No. 86, purushottam Roy Street, Calcutta and to break open the lock of any room if any for the purpose of execution of the decree in terms of the order dated 11th May, 1976; c) Suitable direction be given to the Officer-in-Charge, Burrabazar Police station to depute adequate number of police personnel at premises no. 86, Purushottam Roy Street, Calcutta to render all kinds of assistance for recovery of possession of the said premises as well as for maintaining peace in the locality for such period as to this Hon'ble court may deem fit and proper; d) Such further and other orders be passed to put the plaintiff in possession of the suit premises in terms of the decree dated 22nd November, 1971; e) Such further and other order or orders be passed and/or direction or directions be given as this Hon'ble Court may deem fit and proper. "
( 2 ) G. A. NO. 2324 of 2000 has been filed by one Raja Ram Singh, inter alia, praying for the following reliefs :"a) Decide by trial on evidence the questions/objections to execution of the decree dated November 22, 1971 passed in Suit No. 3443 of 1969 [joy krishna Arora also known as Joy Kissen Arora vs. Maulvi Abdur Rab firoze Ahmed and Co. ] as against your petitioner as stated inter alia at paragraph 30 of the petition and its various sub-paragraphs; b) Direct that your petitioner cannot be dispossessed by the plaintiff and/ or those claiming under and/or through him except by due process by separate suit, if available in accordance with law, if the objections to execution aforesaid, are sustained; c) Direct that your petitioner be supplied copies of all pleadings, affidavits, petitions, depositions, documents and process in Suit No. 3443 of 1969 [joy Krishna Arora also known as Joy Kissen Arora vs. Maulvi Abdur rab Firoze Ahmed and Co. ] including interlocutory process and orders passed thereon and final orders/decrees and/or all papers filed in Court of any description, whatsoever, on the usual terms; d) Pending disposal of the application, pass an interim order staying all further proceedings in execution of the decree dated November 22. 1971 passed by His Lordship the Hon'ble Justice Ramendra Mohan Datta in suit No. 3443 of 1969 [joy Krishna Arora also known as Joy Kissen arora vs. Maulvi Abdur Rab Firoze Ahmed and Co. ]; e) Pending disposal of this application, pass an interim order restraining the plaintiff and/or his men, agents, servants, staff employees, assigns, successors-in-interest and/or any person claiming through and/or under him, from dispossession your petitioner from premises No. 86, pandit Purushottam Roy Street, P. S. Burrabazar, Calcutta - 700 007; f) Pass ad interim order (s) in terms of prayers (c), (d) and (e) above; g) Pass suitable orders as to costs of and/or incidental to this application including legal expenses; h) Pass such other and/or further order (s)/direction (s) as may deem fit and proper. "
( 3 ) PRAYER- (A) of the application filed by Raja Ram Singh has already been granted and evidence have also been laid by various witnesses in the said proceedings. Before dealing with the controversy in issue some of the relevant facts are required to be stated which are as under: the plaintiff had filed the instant suit on 3rd of October, 1969 being Suit no. 3443 of 1969, inter alia, praying for eviction of the defendant and for delivery of vacant possession of 1st and 2nd floor of
