Ownership claims through tenancy do not equate to legal possession under the Civil Procedure Code, impacting the maintainability of applications for adjudication.

JUDGMENT :

Heard Mr. O. Laskar, learned counsel for the appellants and Mr. B. Kaushik, learned counsel for the respondents.

2. This appeal, under Section 100 , read with Section 151 of the C.P.C., is directed against the judgment and order dated 09.12.2024, passed by the learned Civil Judge (Senior Division), Sribhumi (first appellate court), in Misc. Appeal No. 05/2021.

3. It is to be noted here that vide impugned Judgment and Order dated 09.12.2024, the learned first appellate court had upheld the impugned order, dated 26.08.2019, passed by the learned Munsiff No. 1, Karimganj (executing court), in Title Execution Case No. 05/2015, whereby the learned executing court has rejected the application, dated 14.08.2019, filed by the appellants under Rule 97 & 101 of Order XXI of the C.P.C. in the said Title Execution Case, arising out of Title Suit No. 136/2006.

Background Facts:-

4. The background facts, leading to filing of the present appeal, are adumbrated herein below:-

“One Bhola Nath Mazumder had instituted one title suit, being T.S. No. 136/2006 (T.S. 26/1996 or T.S. 06/2006) against Smti. Uma Rani Das and Others, for recovery for Khas possession and recovery of arrear rent from the defendants.

The suit land, measuring 24 decimel (3 Kathas 13 Lechas) pertaining to survey Dag No. 3790 and 3793, under Khatian No. 2518, under ward No. 17 of Karimganj Municipality, and the suit house described in the schedule of the plaint, along with some other house, originally belongs to one Karunamoy Das, S/o Late Kamini Das; Jagadish Chandra Das, S/o Late Jamini Mohan Das; and Anil Chandra Das, S/o Late Aswini Kumar Das, who had land holders right and maliki right respectively.

One Sri Ajit Kumar Das, duly constituted attorney of the said three owners, entered into a contract with one Taru Mazumdar (w/o plaintiff No. 1 and mother of plaintiff Nos. 2 – 5) to sell the suit land and the suit house and some other land, vide Binanama, dated 03.07.1988. But, the three owners had failed to execute the sale deed in favour of Taru Mazumder for which, she had preferred T.S. No. 37/1988, in the court of learned Assistant District Judge, Karimganj for specific performance of contract and execute the sale deed in her favour. The said suit was contested by defendant Karunamoy Das and Jagadish Chandra Das by filing their written statements along with their counter claims. But, the defendant No. 3, Anil Chandra Das and defendant No. 4, Ajit Kumar Das of the said T.S. No. 37/1988 did not contest the suit and therefore, the suit proceeded ex-parte against them. Thereafter, the learned trial court decreed the suit, vide judgment and decree dated 31.08.1995, in favour of plaintiff, Taru Mazumder and counter claims made by defendant Nos. 1 & 2 was dismissed.

During the pendency of the title suit, the defendant No. 2, Jagadish Chandra Das died, but his legal heirs were duly substituted. Against the judgment and decree dated 31.08.1995, passed in the said T.S. No. 37/1988, no appeal had been preferred and the decree remained un- challenged. Subsequently, on the strength of the decree passed in the said suit, sale deed was executed on 31.05.1996, in favour of decree holder, namely, Taru Mazumder and the deed was also executed by Sub-Registrar Office, Karimganj on 19.06.1996, vide document No. 1223.

The defendants were the monthly tenant in the suit land and the house, under the said vendors (Karunamoy Das, Jagadish Ch. Das and Anil Ch. Das) and therefore under the decree holder, Taru Mazumder on payment of monthly rent of Rs. 21/ as per Bengali Calendar month. Accordingly, by operation of law, t