Judgment:
SUBHRO KAMAL MUKHERJEE, J.
Although, this appealhas been classified as first appeal, in all fitness of things, the appeal should be classified as an appeal from original order.
This is an appeal against an order rejectingthe application filed by a third partyobjector under Order XXI, rules 97 to 101 of the Code of Civil Procedure. Under rule 103 of Order XXI of the Code, the orders passed on such adjudication are to be treated as decrees, but in view of the judgment of a division bench of this court pronounced in the case of Surajmal Jain vs. Prabir Kumar Sett reported in 1980(2) C.L.J. 161, the appeal against such order is to be classified as an appeal from original order.
A division bench of this court, byorder dated December 14, 2004, inter alia, held that this appeal is to be classified as regular first appeal. It seems that attention of the division bench was not drawn to the aforesaid decision of Surajmal Jain (supra).
We, therefore, direct theoffice to register the appeal as an appeal from original order.
This is an appeal against the judgmentand order dated October 8, 2004 passed by the learned Civil Judge (Senior Division), Third Court at Alipore, South 24-Paraganas, in Misc. Case No. 18 of 2003.
The suit property is PlotNo. 548, Block ‘N’, Post Office and Police Station - New Alipore, Kolkata – 700053. The property is, also, known as premises No. 23A/548, Diamond Harbour Road, Kolkata-700053.
Admittedly, the defendantswere the owners of the property in suit. They entered into an agreement for sale of the property in suit with the plaintiffs on May 27, 1980.
As the defendants did not executethe document in favour of the plaintiffs, in spite of their repeated requests, a suit was instituted, inter alia, for specific performance of contract. The suit was registered as Title Suit No. 165 of 1984 before the learned Assistant District Judge, Third Court at Alipore.
By judgment and decree dated January27, 1999, the suit was decreed on contest against the defendants.
The defendants, being aggrieved by and dissatisfiedwith the said decree, preferred an appeal before this court, which was registered as First Appeal No. 78 of 1999.
During the pendency of the aforesaid appeal,these appellants filed an application for addition of parties in the appeal. In the application, it was claimed that Deshpran Building Stores, a partnership firm, acquired title in the property in suit by way of adverse possession. In the application for addition of parties, as aforesaid, it was admitted that the defendants were the owners of the property in suit and they allowed the said partnership firm to park their vehicles on the land in question. It was stated that the applicants came into the property in suit and started parking their vehicles on the basis of permission granted by the defendants.
However, a division bench ofthis court, by order dated August 20, 2001, rejected the said application for addition of parties as the partnership firm had no concern with the specific performance of contract for sale of the property in suit. The division bench noted the plea of the applicants that they were permitted to keep their vehicles in the land in question and held that such permissive occupation only for the purpose of keeping the vehicles could not make the applicants necessary or proper party to the suit.
By judgment and decree dated December 3, 2001, the appeal was dismissed.
In the meantime, the decree holders put the decree into execution giving rise to Title Execution Case No. 8 of 1999.
After dismissal of the appeal, these appellants filed an application under Order XXI, rule 97 to 101 of the Code of Civil Procedure asserting their independent right in relation to the property in suit. The application was registered as Misc. Case No. 18 of 2003. In the application, these appellants, again, reiterated that they had acquired title in relation to the property in suit by way of adverse possession.
By the impugned judgment and order dated October 8, 2004, the learned judge in the executing court rejected the said miscellaneous case holding, inter alia, that the applicantsfailed to establish their case for title in the property in suit.
Being aggrieved, these appellants have come up with this appeal.
Mr. Bhaskar Ghosh, learned senior advocate appearing in support of this appeal, argues that in the absence of proper adjudication as to the claim of adverse possession, the order impugned in this appeal is bad in law.
Mr. Jiban Ratan Chatterjee, learned senior advocate appearing for the decree holders/respondents, submits that the sheet anchor of the case of the appellants is the trade licence issued by the Kolkata Municipal Corporation. He submits that the trade licence was issued during the pendency of the aforesaid miscellaneous case. He submits that the appellants had failed to establish the case of their adverse possession, as they failed to produce any cogent evidence in support of the same.
Mr. Chatterjee, in support of his contention, cites a decision of the Supreme Court of India in the case of L. N. Aswathama and Another vs. P. Prakash reported in (2009) 13 S.C.C. 229 as also a decision of this court in the case of Trinath Chandra Das and ors. vs. Debaprasad Bhattacharya and anr. reported in 2011 (3) C.L.J. (Cal) 11.
Undisputedly, the defendants/judgment debtors were the owners of the property in suit. They had entered into an agreement for sale of the same with the decree holders. These appellants claimed that they were in possession of the property in suit even before such agreement. Their case was that they came into possession of the property in suit on the basis of the permission granted by the defendants for the purpose of parking their vehicles.
Shrimati Renukana Jana deposed as petitioners’ witness no. 1 in support of theapplication filed under Order XXI, rule 97 to 101 of the Code of Civil Procedure. She stated that when the partnership firm came to possess the property in suit, there was no owner. Adversepossession can be claimed against the erstwhile owner of the property in suit. It is settled law that unless there is a rightful claimant, there cannot be any claim of adverse possession.
There was a contradiction in the statement made by the partnership firm in relation to their possession in the present application and in the application filed by them for theiraddition in the appeal preferred by the judgment debtors in this court. They unequivocally statedthat the firm was permitted by the erstwhile owners to keep their vehicles. Once they came intopossession on the basis of the permission, they were not entitled to dispute the title of the rightful owners alleging that they had acquired title by way of adverse possession.
In L. N. Aswathama and another (supra), the supreme court held that in order to establish a claim of title by prescription, that is, adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding 12 years and that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi.
In this case, the partnership firm came into possession lawfully after getting permission from the rightful owner to park their vehicles. A party, who originally got possession by permission cannot claim adverse possession. Onus of proof is on the party claiming title by adverse possession.
These appellants claimed merely on the basis of oral assertion that they acquired title by adverse possession. There was no supporting evidence in support of such plea. The only document, which was sought to be relied upon by these appellants, in support of their case of uninterrupted possession, is a receipt issued by the licence department of the Kolkata Municipal Corporation. The receipt is dated November 17, 2003 for the year 2003-04. This was procured during the pendency of the proceeding in the court below. We hold that this was procured for the purpose of making the application under Order XXI, rule 97 to 101 of the Code of Civil Procedure.
We do not think that the learned judge in the executing court ever committed any error of law, in the facts and circumstances of the case, in rejecting the said miscellaneous case and thereby negating the plea of adverse possession by them.
We do not find any merit in the appeal and, as such, the same is dismissed.
In view of dismissal of the appeal, the connected application for stay filed under CAN 9695 of 2004 becomes infructuous and the same is, also, dismissed.
We, however, direct the parties to bear their respective costs in this appeal.
Xerox certified copy of this order, if applied for, will be made available to the applicant within a week from the date of putting in the requisites.