Ashok Bhushan, J. - (1.) This appeal has been filed against the Division Bench Judgment of Calcutta High Court in FMA No.720 of 2005, by which the appeal filed by the respondent No.1 has been allowed setting aside the order of Executing Court dated 10.08.2004 rejecting the application filed by respondent No.1 under Order XXI Rules 98, 99 and 100 of the Code of Civil Procedure (hereinafter referred to as "CPC").
(2.) Brief facts of the case giving rise to this appeal are:- 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.15.2.2 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 possession.2.3 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 12.04.1996.2.4 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 Ex-Service 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 property.2.5 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 Corporation.2.6 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.
(3.) We have heard Shri Debal Banerji, learned senior counsel for the appellant and learned counsel appearing for the respondent.;