- (1.) THIS first appeal is at the instance of plaintiffs in a suit for declaration and permanent injunction and is directed against the judgment and decree dated 24th September, 2007 passed by the learned judge,13th Bench, City Civil Court at Calcutta, in Title Suit No. 158 of 2002, thereby dismissing the said suit.
(2.) THE appellants before us filed a suit being Title Suit No. 158 of 2002 in the City Civil Court at Calcutta thereby praying for the following relief:- " (a) A decree for declaration that the plaintiffs are owners of the suit flat No. 5, on the 3rd floor at premises No. 115e, Lenin Sarani, police Station -Muchipara, Kolkata - 700 013. (b) Decree for declaration that the plaintiffs have every right to have peaceful possessions of the suit property. (c) Permanent injunction restraining the defendant No. 1 and his associates from creating any disturbance to the peaceful possession of the plaintiffs in the suit property. (c-1) Declaration that the order passed in S. C. C. Suit No. 151 of 1998 is a nullity and cannot be enforced and the same is not binding upon the plaintiffs as the plaintiffs have become the owners. (d) Cost and Advocate's fees. (e) Such other relief or reliefs as this learned Court may deem fit and proper. "
(3.) THE case made out by the appellants may be summed up thus:- (a) One Sukumar Mukherjee, since deceased, the father of appellant Nos. 1, 3 and 5 and the husband of appellant No. 4, had been residing at the suit flat described in the schedule to the plaint from the year 1968. The said Sukumar Mukherjee died on 2nd April, 1993 leaving the appellants as his sole heirs and legal representatives. (b) On the death of the said Sukumar Mukherjee, the appellants had been in exclusive possession of the suit flat without any objection or resistance from any person and in fact, they had been residing in the said flat for the last 34 years. (c) The respondent No. 1 is a tenant in respect of another flat situated on the 1st floor of the said premises, being premises no. 115e, Lenin Sarani, Kolkata-700 013. (d) The respondent No. 2 claimed to be the owner of the entire premises No. 115e, Lenin Sarani, Kolkata -700 013 and the respondent Nos. 3 and 4 are the Joint Receivers appointed by the high Court at Calcutta in Suit No. 416 of 1978. (e) Neither the appellants were nor their predecessor was the licensee in respect of the suit property and in fact, they were in adverse possession against the real owner by exercising the right of full ownership over the flat and the order of eviction passed in s. C. C. Suit No. 151 of 1998 was not binding upon them. (f) The respondent No. 1 was a person of quarrelsome nature and for the last 3 years was trying to oust the appellants from the suit property and on January 22, 2000 the respondent No. 1 with some associates came to the suit property and asked the appellants to vacate the same. In view of such threat the appellants made complaint before the local police station. (g) The respondent No. 1 had no right, title or interest in the suit property and was forcibly trying to oust the appellants from the suit property. (h) The cause of action of the suit arose first on 22nd June, 1968 when the predecessor-in-interest of the appellant took possession of the suit flat, thereafter on 22nd January, 2002 when the respondent No. 1 threatened the appellant to vacate the suit property and also on 23rd June, 1980 when the appellant acquired right of adverse possession and the cause of action was continuing day to day. ;