- (1.) This application under Article 227 of the Constitution of India is directed against judgment dated 24th of February, 2011 passed by Additional District Judge, 6th Court, Alipore, District 24 Parganas (South) in Misc. Appeal No.231 of 2006 affirming order dated 10th of April, 2006 passed by learned Civil Judge (Senior Division), 10th Court Alipore in Misc. Case No.4 of 2003.
(2.) The petitioners' case may be summarized as follows:- The entire premises No.18, 18/1, 18/2 and 18/3 measuring about 23 cottahs more or less comprised one holding under Kolkata Municipal record originally belonged to Kalipada Mukherjee and his two brothers. The present petitioners being refugees came to Kolkata during 1947 48 and occupied 5 cottahs of land out of said 23 cottahs of land. They also obtained necessary permission from Kalipada Mukherjee and his brothers. One Safi Seikh Mansur Ali claiming himself as Mutwalli of Haqquane Anjuman Wakf Estate alleged to purchase 18 cottahs of land of premises No.18 from Kalipada Mukherjee and his brothers and filed a Title Suit being No.2 of 1962 praying for recovery of possession of 11 cottahs of land out of said 18 cottahs of land from trespassers. He obtained a decree in said Title Suit No.2 of 1962. An execution case being Title Execution Case No.32 of 1965 was filed for recovery of possession of said 11 cottahs of land from the trespassers being defendants of said suit. At the time of execution of said decree the present petitioners were tried to be dispossessed from their possession. They resisted the decree and filed one case being Misc. Case No.4 of 2003 under Order 21 Rule 97, 98, 99, 100, 101, 102 and 103 read with Section 151 of the Code of Civil Procedure. They also filed one application under Order 27 Rule 9 of the Code of Civil Procedure for appointment of a survey passed advocate commissioner for relayment of the suit property vis- -vis the property under the possession of the petitioners. Learned trial court dismissed the said Misc. Case by order dated 10th of April, 2006. An appeal being Misc. Appeal No.231 of 2006 was filed but the same was also dismissed by the order impugned dated 24th of February, 2011. Hence, is this revisional application.
(3.) The substituted plaintiff filed a written objection alleging inter alia that the original plaintiff purchased the entire premises No.18 Bagmari Road being well demarcated property having area of 18 cottahs of land though it was wrongly mentioned in the deed as 23 cottahs of land. Said property was purchased from the admitted owner Kalipada Mukherjee and his two brothers under three separate deeds and as some squatters were illegally occupying 11 cottahs of land, one suit being Title Suit No.2 of 1962 was filed for recovery of possession of said portion of suit property which was decreed after contested hearing. Long back the execution case being Title Execution Case No.32 of 1963 was filed. Premises Nos. 18/1, 18/2, and 18/3 Bagmari Road are imaginary premises numbers. Present petitioners never occupied any portion of premises No.18 and they were set up by the judgment debtors to stall the execution of the decree.;