Mere possession does not constitute adverse possession unless accompanied by open assertion of hostile title.

1. THE petitioner-appellant in the Civil Revision application as also the appeal, which is a partnership firm, was a third party in an execution proceeding. The first respondent-landlord filed a suit in August, 1979 for eviction of the respondent No. 2. During pendency of the said execution proceedings the appellant fifed an application purported to be under section 47 of the Code of Civil Procedure, paragraph 3 whereof reads thus:

"that the opposite party No. 1 is staying on the 1st floor at the said premises. Your petitioner since the 1st part of year 1967 is adversely occupying a room at the ground floor at Premises No. 3, mango Lane, Calcutta-1 without any interruption and/or resistance horn the opposite party No. 1. The opposite party No. 1 nerve asked your petitioner to vacate the said premises. Therefore, your petitioner is in possession of the said room bearing their lawful right, title, interest in the said room. Actually the uncle of the opposite party no. 1 since deceased is distant relation of one of the partners of your petitioner, who allowed your petitioner to run the said businesses as rightful owner of the said suit room without paying any rent to the opposite party No. 1. Since then your petitioner is running their business at the: said premises without any obstruction from opposite party No. 1".

2. AS during pendency of the said application the first respondent-decree holder prayed for police help In terms of Rule 208 of the High court Civil Rules and Orders, the appellant filed another application purported to be under Order 21 Rule 101 of the Code of Civil Procedure making the same allegations.

Before the learned trial Judge the appellant did not adduce any oral evidence. It appears from Order No. 24 of the Miscellaneous Case which was registered pursuant to filing of the said application, an application for adjournment was filed but the same was rejected. Both the parties appear to have filed their documents which have been considered by the learned trial Judge although they were not marked as exhibits. The learned trial Judge in terms of the judgement under appeal dated 21.3.94 held that the both the said applications under section 47 of the Code of Civil Procedure are not maintainable and while arriving at the said finding it relied on a decision of a division bench of this court in Lakshmi Debnath V. Renu Aich and Ors., reported in CLT 1994 (1) HC 58.

3. ON merit of the matter also, the learned trial Judge clearly committed an error in holding that the appellant's application under Section 47 of the Code of Civil Procedure as also under Order 21 Rule 101 of the Code of Civil Procedure were not maintainable in view of the decisions of this court as also the Apex Court inasmuch as all the objections raised by a third party must be decided in the execution proceedings itself. Reliance in this connection has been placed on Subhendu Gupta us. Calcutta Vyapar pratisthan Ltd., reported in 1995 W. B. L. R. 101, Sri Deba Prosad Mazumdar vs. Sri Man Mohan Mazumdar and Ore, reported in 1997 (1) CHN 495. Bhanwar Lai vs. Satyanarain and Ann, reported in (1995)1 SCC 6, Babulal vs. Raj Kumar and Ors. , reported in 1996 (3) SCC 154 and Brahmdeo choudhury vs. Rishikesh Prasad Jaiswal and Ann, reported in (1997)3 SCC

4. THE learned Counsel, however, accepted that although the learned trial Judge, inter alia, held that the application filed by the appellant under section 47 as also under Order 21 Rule 101 of the Code of Civil Procedure were not maintainable, it had the jurisdiction to decide the case on merit the learned Counsel, however, submitted that although the appellant had taken a plea of adverse possession as also a plea of being a licencee, keeping in view the fact that the first respondent raised a specific plea to the effect that the plea of the appellant as regard grant of licence by an uncle of one of the partners of the decree holder failed inasmuch as the person concerned died in the year 1964 where