- (1.) This appeal arises from the judgment dated 16/11/1978 of a division bench of the Calcutta High court in appeal A. A. D. No. 1271 of 1966. The facts, in brief, are that the appellant is the owner of the demised site granted to Mohammadin and Bros. , the tenant for use and occupation. The lease was of 13/03/1939. The tenant raised structures on the site and was in enjoyment of them. The appellant filed Title Suit No. 76 of 1953 against the tenant for ejectment from the demised site and for mesne profits. A preliminary decree was made on 12/11/1953 directing recovery of Khas possession subject to the appellant's paying compensation for the structures which had to be determined either by mutual agreement or by an order of the court. Since there was no mutual agreement, a final decree was made on 22/08/1957 directing the appellant to pay a sum of Rs. 1,390. 00 as compensation towards the value of the structures. That final decree was not appealed against by the tenant. Later on, the appellant filed Title Suit No. 87 of 1963 against not only the said tenant but also against the respondent and two others for declaration of title, possession, mesne profits and mandatory injunction against the respondent to pull down the structures on the site. The defence set up by the respondent in the suit was that he was inducted by Mohammadin Bros. on the site and structures thereon prior to partition of India and before their migration to East Pakistan. More over Mohammadin and Bros. had transferred their rights in favour of the respondent by oral sale. Hence the respondent had been in possession and enjoyment of the shops on the site in his own right and as owner thereof. At any rate the respondent had perfected his title to the site and structures by adverse possession. He had also let out certain portions of the structures to others. Further, in survey and settlement records, his name had come to be entered, as owner.
(2.) The trial court did not accept the claim of the appellant that Mohammadin Bros. had surrendered possession of the site and structures by abandonment. It also found the claim of the respondent that he and two others had been in possession as tenants and sub-tenants to be of no merit. The pleas of oral sale and adverse possession of the respondent were also negatived. It held that the decree in T. S. No. 76 of 1953 had become inexecutable, having been barred by limitation and the appellant was not entitled to the decree as prayed for. On appeal, the appellate court disbelieved the respondent's pleas of oral sale as well as adverse possession. But on the basis of findings on other issues, it reversed the decree of the trial court and decreed the suit. As stated earlier the High court reversed the decree and non-suited the appellant. Thus, this appeal by special leave.
(3.) The facts as disclosed from the judgments of the courts below are that the appellant is the owner of the property which Mohammadin and Bros. took on lease with permission to erect structures thereon for use and enjoyment. The respondent came into possession of the site and structures as a tenant of Mohammadin and Bros. , but no attornment of tenancy was made to the appellantas a sub-tenant. The plea of the respondent is one of acquisition of title to the site and structures either by purchase from Mohammadin and Bros. or by adverse possession. The decree in Title Suit No. 76 of 1953 was barred by imitation And remained unexecuted. On these facts the question is, whether the decree in O. S. No 76 of 1953 stands in the way of the appellant to get the declaration of titled the disputed site and other reliefs sought in the suit. Order 21, Rule 35 (1, Civil Procedure Code (1 Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged or to such person as he may appoint to receive delivery on his behalf and, if necessary, by removing any person bound by the decree who refuses to vacate the property. "sub-rules (2 and (3 are not material, hence omitted. Order 21, Rule 36 "Where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the court shall order delivery to be made by affixing a copy of the warrant in some conspicuous places on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property. ";