JUDGMENT M.L.pendse, J.:---This is an appeal preferred by original decree holder in Suit No. 349 of 1970 to challenge legality of judgment dated September 8, 1989 passed by learned Single Judge on Chamber Summons No. 245 of 1978. The Chamber Summons was taken out by respondent No. 13 under Order 21, Rule 99 of the Code of Civil Procedure. The trial Judge by the impugned judgment adjudicated the rights of the appellants and the respondent in exercise of powers under Order 21, Rule 101 of the Code of Civil Procedure. The facts giving rise to the passing of the impugned order are as follows. 2. Nanabhoy Byramjee Jeejeebhoy was owner of several lands situated in 7 villages including village Poisar in Borivili Taluka. The villages in which the lands were situated were Khoti villages and Nanabhoy was the Khot. Nanabhoy had inherited the lands from his father. Khoti rights were abolished by legislation passed by Government of Bombay and in accordance with provisions of the Act lands were regranted in favour of the Khots. Thus, Nanabhoy became owner of lands situated in 7 villages including village Poisar. On July 24, 1951, Nanabhoy, by deed of conveyance, transferred the ownership rights in favour of Byramjee Jeejeebhoy Private Limited, a Company incorporated under the Indian Companies Act. After abolition of Khoti rights, the Government introduced record of rights in accordance with the provisions of the Land Revenue Code and the name of the Company was entered in the record of rights as owners of lands in 7 villages. The lands at village Poisar include lands bearing Survey No. 19, Survey No. 22, Hissa Nos. 1 and 2 and Survey No. 22, Hissa No. 14. On August 26, 1964, the appellant Company entered into an agreement with Govindbhai Appaji Bhatte and 11 others who were carrying on business in the name and style of New Swastik Land Development Corporation, a registered Partnership to sell 7 pieces of lands comprising of Survey No. 17, Hissa No. 9, Survey No. 18, Hissa No. 1, Survey No. 19 Hissa No. 2, and Survey No. 22, Hissa Nos. 1, 9, 14 and 15. The total area agreed to be sold was 23 acres and 231/2 gunthas. The appellants received a sum of Rs. 1 Lakh as earnest money at the time of execution of the agreement and the purchaser had agreed to pay a sum of Rs. 1, 9, 14 and 15. The total area agreed to be sold was 23 acres and 231/2 gunthas. The appellants received a sum of Rs. 1 Lakh as earnest money at the time of execution of the agreement and the purchaser had agreed to pay a sum of Rs. 5 Lakhs more within a period of three months from the execution of the document. The remaining purchase price was to be paid at the time of execution of sale deed. It appears that the purchaser lost interest in securing sale deed and thereupon the appellants instituted Suit No. 349 of 1970 on the Original Side of this Court on April 27, 1970 for specific performance of the agreement. The appellants claimed that the purchaser should be directed to specifically perform the agreement by payment of balance purchase price of Rs. 11,24,520/- along with interest. The appellants, in the alternative, claimed that it should be declared that the sum of Rs. 1,00,000/- paid as earnest money stands forfeited and the purchaser should be directed to pay damages of Rs. 5 Lakhs to the appellants. The suit was resisted by the proposed purchasers by filing written statements but when the suit came up for hearing in July 1976, the parties filed consent terms requesting the Court to pass decree in accordance with the consent terms. By this time, some of the defendants - proposed purchasers had died and their names were deleted, while Oshivara Land Development Corporation Limited was added as defendant No. 12. The consent decree, inter-alia, provided that the agreement dated August 26, 1964 for sale of land stands terminated and rescinded. The purchasers agreed to pay to the appellants a sum of Rs. 5 Lakhs as damages and the earnest amount of Rs. 1 Lakh was to be appropriated towards the claim of damages. The consent decree further provided that the defendants shall hand over to the appellants physical vacant possession of the suit lands. 3. In pursuance of the consent decree, the appellants instituted Execution Application No. 70 of 1978 on April 10, 1978 and the Court directed warrant of possession of lands covered by the consent decree on April 20, 1978. The consent decree further provided that the defendants shall hand over to the appellants physical vacant possession of the suit lands. 3. In pursuance of the consent decree, the appellants instituted Execution Application No. 70 of 1978 on April 10, 1978 and the Court directed warrant of possession of lands covered by the consent decree on April 20, 1978. On May 25-1978, the warrant was executed by the Sheriff of this Court with the assistance of the police and actual possession of lands covered by the decree was handed over to the appellants save and except an area of 10 gunthas where the material of the respondent was stored. The report made by the Sheriff sets out that possession of an area of 10 gunthas was not delivered as one Mohamed Yasin, a Watchman present at the spot, claimed that materials of M.K. Patel are lying on that area. The respondent - K.K. Patel - thereafter instituted Chamber Summons No. 245 of 1978 on June 3, 1978 in accordance with the provisions of Order 21, Rule 99 of the Code of Civil Procedure. Order 21, Rule 99 provides that where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for possession of such property, then the person dispossessed may make an application to the Court complaining of such dispossesion. On such application being made, the Court is required to adjudicate in accordance with the provisions contained under Rule 101 of Order 21 of the Code of Civil Procedure. The Chamber Summons filed by respondent sought restoration of possession of land admeasuring about 37, 986.50 Sq. Yards bearing Survey No. 19, Hissa No. 2, Survey No. 22, Hissa No. 1 (part), Survey No. 22, Hissa No. 1A (part) and City Survey Nos. 639 and 701 of village Poisar. The respondent also sought mandatory injunction directing the appellants to remove the structure constructed in the portion of the land. The respondent also sought damages or compensation for wrongful dispossession at the rate of Rs. 25,000/- per month from the date of dispossession till restoration. 4. In support of the Chamber Summons under Order 21, Rule 99 of the Code of Civil Procedure the respondent filed an affidavit sworn on June 2, 1978. The respondent also sought damages or compensation for wrongful dispossession at the rate of Rs. 25,000/- per month from the date of dispossession till restoration. 4. In support of the Chamber Summons under Order 21, Rule 99 of the Code of Civil Procedure the respondent filed an affidavit sworn on June 2, 1978. The respondent claimed that he was in exclusive, continuous, uninterrupted and adverse possession of the land for more than 30 years preceding the date of filing of the affidavit. The respondent claimed that he had acquired absolute ownership by adverse possession for period of more than 12 years preceding the date of affidavit. The respondent claimed that he had leased out portion of the land to Kakadya Paliya Babar and to Jivlya Rajya Vartha and the portion leased to Kakadya Paliya Babar was about 3 acres 1 guntha, while to Jivlya Rajya Vartha was about 32 gunthas. The respondent claimed that the leases were granted in the year 1947 and both Kakadya and Jivlya were in occupation till year 1970. On the death of Kakadya in the month of July 1970, the respondent claims that his widow Yesubai and his son Sukeria handed over possession to the respondent and subsequently executed a deed of release on October 30, 1975. Jivlya, claims the respondent, surrendered possession in the year 1970 and from that date onwards, the respondent is in exclusive possession. The respondent further claimed that the City Survey Office had issued a Property Register Card in respect of a part of the land in favour of the respondent and the said portion was given City Survey No. 639, Survey No. 638 (part) and City Survey No. 701 (part). It was further asserted that adverse possession was to the full knowledge of the appellants as the respondent had installed heavy and expensive machinery for manufacturing Hume Pipes in a portion of the land several Hume Pipes which were manufactured were stocked and lying on the land. The respondent claimed that he had constructed a hut in the portion of the land for providing accommodation to the Watchman. The respondent also asserts that he had put up a fencing of barbed wire and erected an iron gate on the eastern side of the plot and also put a sign board bearing the name of the respondent as well as the name of his constituted attorney Danmal Jain. The respondent also asserts that he had put up a fencing of barbed wire and erected an iron gate on the eastern side of the plot and also put a sign board bearing the name of the respondent as well as the name of his constituted attorney Danmal Jain. The respondent then stated that since the lands were entered as owner in the name of the appellants in the land revenue records, applications were made in the year 1971 for deletion of the name of the appellants and entering the name of the respondent as Kabjedar and the mutation entry was made on May 25, 1971 inspite of the objection of the appellants. Subsequently, that entry was set aside by the appellate authority and the proceedings adopted by the respondent to challenge the order of appellate authority were pending. The respondent claimed that he had paid non-agricultural assessment after the Deputy Collector found that a portion of the land was used for non-agricultural purpose from year 1952 onwards. The respondent claimed that he had paid an amount of Rs. 1,439. 25 as non-agricultural assessment from year 1952 to year 1970 in pursuance of order dated March 24, 1971. The respondent, therefore, claimed that the dispossession of the respondent in execution of the decree passed in Suit No.349 of 1970 was illegal as the appellants have lost title to the lands and the respondent has perfected title by adverse possession. The respondent asserted that the decree passed by this Court could not have been executed or enforced as the respondent was not claiming through the judgment-debtor but was independently asserting his right as owner by prescription. 5. The application made by respondent under Order 21, Rule 99 of the Code of Civil Procedure was resisted by the appellants by filing affidavit sworn by Madhusudan Brijlal Vakharia who is looking after the suit lands as Estate Manager and was conversant with the facts of the case. The appellants denied that the respondent was in possession of the lands for a period over 12 years and has perfected title by adverse possession. The appellants challenged the claim of the respondent that Kakadya and Jivlya were inducted on lands by the respondent as tenants. The appellants denied that the respondent was in possession of the lands for a period over 12 years and has perfected title by adverse possession. The appellants challenged the claim of the respondent that Kakadya and Jivlya were inducted on lands by the respondent as tenants. The appellants also claimed that the respondent had forcibly entered upon the land just prior to the execution of warrant of possession and had dumped the machinery with a view to create evidence. The appellants also claimed that possession of an area of 10 gunthas which was not handed over at the time of execution of warrant of possession should be delivered to the decree-holder. On the strength of these pleadings reflected in the affidavits filed by the parties, the trial Judge framed various issues and the respondent entered the witness box in support of the case. On behalf of the appellants, Vakharia, the Estate Manager and Kanubhai Nagrecha, a Photographer, were examined and in addition to the oral evidence both the parties produced large number of documents on record in support of their respective cases. The respondent unequivocally gave up the claim in respect of land bearing Survey No. 22, Hissa No. 14 (part)-1A admeasuring about 32 gunthas and adjudication before the trial Judge was limited to the remaining lands of an area of about 7 acres 33 gunthas 15 annas equivalent to 37986. 50 Sq. yards. The trial Judge, on appreciation of evidence, came to the conclusion that the appellants had proved their title in respect of Survey No. 19, Hissa No. 2 but not in respect of area covered by Survey No. 22, Hissa No. 1 and consequently, the execution of the decree in respect of Survey No. 22, Hissa No. 1 was illegal. The trial Judge further held that the title of the appellants stood extinguished as the respondent established adverse possession in respect of the land covered by Survey No. 19, Hissa No. 2 and consequently, the appellants were not entitled to dispossess the respondent in execution of the decree. The trial Judge further held that the proceedings in execution were vitiated as the decree obtained by the appellants in Suit No. 349 of 1970 was by abuse of process of law. The trial Judge further held that the proceedings in execution were vitiated as the decree obtained by the appellants in Suit No. 349 of 1970 was by abuse of process of law. The trial Judge also held that the question of title of the appellants and the right to secure possession from the respondent cannot be determined in the enquiry under Order 21, Rule 99 of the Code of Civil Procedure and the remedy of the appellants, if any, is to institute a suit. On the strength of these findings, the trial Judge directed the Sheriff to put back the respondent in possession of the suit land which was recovered by the appellants in execution of the decree. The trial Judge gave further direction to the Sheriff and to the parties for measurement of land, preparation of plan with the assistance of the Architect, etc. The order passed by the learned Judge in under challenge and on admission of the appeal, the enforcement of the impugned order was stayed, with the result that the respondent is in possession of an area of only 10 gunthas though it is not in dispute that area of 10 gunthas in surrounded by land which is in possession of the appellants and consequently, the respondents had no access even to this area of 10 gunthas. 6. Shri Chagla, learned Counsel appearing on behalf of the appellants, submitted that the findings recorded by learned trial Judge suffer from serious infirmity and are not sustainable in face of the evidence on record. The learned Counsel urged that the finding that the respondent established adverse possession of the lands in dispute is entirely faulty and it was an error to place blind reliance upon the oral testimoney of the respondent to conclude that the title of the appellants stands extinguished, while the respondent acquired title by prescription. Shri Chagla further submitted that the finding of the trial Judge that the title of the appellants to land covered by Survey No. 22, Hissa No. 1 was not established is wholly incorrect. The finding that the proceedings in execution were vitiated as the decree obtained by the appellants in Suit No. 349 of 1970 in respect of possession of the land was merely a device to dispossess the respondent is not correct. The finding that the proceedings in execution were vitiated as the decree obtained by the appellants in Suit No. 349 of 1970 in respect of possession of the land was merely a device to dispossess the respondent is not correct. Shri Chagla submitted that the trial Judge was in error in holding that the execution of the decree was abuse of the process of law. Shri Parikh, learned Counsel appearing on behalf of the respondent, on the other hand, submitted that the impugned judgment is not required to be disturbed as the respondent had established title by adverse possession. Shri Parikh also submitted that the decree which led to execution was a collusive one and in any event was not executable as the appellants had never sought possession in the suit. Shri Parikh urged that the plaintiffs had failed to establish title to the lands in dispute. It was also urged on behalf of the respondent that as the respondent was claiming independently of the judgment-debtor, it was not open for the executing Court under Order 21, Rule 10 to adjudicate the controversy and the respondent should have been restored back to possession with the direction to the appellants to institute suit, if so advised. 7. Order 21, Rule 99 of the Code of Civil Procedure, inter alia, provides that where any person other than the judgment-debtor is dispossessed of immovable property by the holder of the decree for possession of such property, then such person may make an application to the Court complaining of such dispossession. Sub-rule (2) of Rule 99 requires the Court to adjudicate upon the application in accordance with the provisions under Rule 101. Rule 101 provides that all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under Rule 97 or Rule 99 and relevant to the adjudication of the application shall be determined by the Court dealing with the application and not by a separate suit. The rule further provides that the executing Court shall be deemed to have jurisdiction to decide such questions. The appellants in execution of the decree dated July 14, 1976 passed in Suit No. 349 of 1970 dispossessed the respondent of the lands in dispute excluding 10 gunthas and on such dispossession, the respondent filed an application complaining of dispossession. The rule further provides that the executing Court shall be deemed to have jurisdiction to decide such questions. The appellants in execution of the decree dated July 14, 1976 passed in Suit No. 349 of 1970 dispossessed the respondent of the lands in dispute excluding 10 gunthas and on such dispossession, the respondent filed an application complaining of dispossession. The application was, therefore, required to be determined by the trial Court in accordance with provisions of Rule 101 and question relating to the right, title and interest in the property was required to be adjudicated. The respondent claimed right to remain in possession of the lands on the strength of acquiring ownership rights by adverse possession. The respondent is not claiming interest to remain in possession in any other capacity. The respondent claimed to have trespassed upon the lands in the year 1947 and by continuous uninterrupted and hostile possession perfected his title. It is not the claim of the respondent that the appellants were not the owners of the property in dispute in year 1947. The appellants, on the other hand, are claiming that the respondent was not in adverse possession and had not acquired title by prescription. The appellants do not base their title to the lands under the decree passed in Suit No. 349 of 1970 but independently of that and under the conveyance executed by Nanabhai Byramjee on July 24, 1951. It is not in dispute that prior to the date of conveyance, the lands were held by Nanabhai Byramjee as absolute owner, Nanabhoy being Khot of 7 villages held under Khoti laws. As the issue of title to the properties arose between the appellants and the respondent in an application filed under Order 21, Rule 99 of the Code of Civil Procedure, it was incumbent upon the trial Court to adjudicate the question under Rule 101. As mentioned hereinabove, the respondent did not dispute the title of Nanabhoy Byramjee to the lands in dispute. It hardly requires to be stated that the burden is extremely heavy upon the party who claims to have acquired title to the property by adverse possession. The long possession is not equivalent to adverse possession and for a person who claims to have acquired title by prescription, it is necessary to establish that the person was enjoying the property openly, continuously and hostile to the knowledge of the true owner. The long possession is not equivalent to adverse possession and for a person who claims to have acquired title by prescription, it is necessary to establish that the person was enjoying the property openly, continuously and hostile to the knowledge of the true owner. Article 65 of Schedule 1 to the Limitation Act of 1963 provides that in respect of suit for possession of immovable property or any interest based on title, the period of limitation is 12 years and the time begins to run when the possession of the defendant becomes adverse to the plaintiff. It is, therefore, clear that it is incumbent upon the defendant to prove by positive evidence as to when the possession became adverse to the true owner. In other words, the date of commencement of adverse possession is quite important. It is required to be stated at this juncture that the lands in dispute were situated in village Poisar which was Khoti village and in year 1947 and even thereafter the lands were open and on some portions, the grass grew naturally. The lands acquired great value after City rapidly developed from year 1960 onwards and after year 1970, there is a considerable industrial development as well as residential colonies have come up around this lands. It is now well settled by catena of decisions that the claim for adverse possession of an open land is to be examined with great care and even assuming that the person is enjoying the open land without any authority, that would not necessarily lead to the inference that such person enjoyed the land adversely to the true owner. With this well-settled principles, it is now necessary to examine whether the respondent had established title to the lands by adverse possession. 8. The respondent is the sole witness examined to establish the claim. Kanubhai Kantilal Patel the respondent deposed that prior to year 1946, his father Kantilal was engaged in fabrication business and the business was carried on in partnership, in the name and style of A.M. Patel Company and WITCO Engineering Company. The respondent stated that prior to year 1946, the firm was doing business by way of job work on the site of the job and business was carried on from Mogra village, Andheri. The respondent stated that prior to year 1946, the firm was doing business by way of job work on the site of the job and business was carried on from Mogra village, Andheri. The respondent deposed that in year 1947, his father was in search of some suitable land with a desire to expand business and accordingly contacted Danmal Jain of Andheri who was dealing in lands. Danmal Jain suggested to the father of the respondent that the lands situated at Poisar village are available. On enquiry, Danmal Jain told that the name of the owner will be ascertained and thereafter deal can be settled. The respondent claimed that lands were found suitable and, therefore, the lands were occupied. The respondent claimed that there were wild growth of shrubs and grass and the same was cleared. The respondent deposed that he did not know the Survey Numbers of the land and on clearance of shrubs and grass, two katcha sheds were constructed; one was a tin shed of about 30 x 15, while the other was covered by palm leaves and admeasured 20 x 12. The respondent deposed that Kakadya and Jivlya were working at the business site at Andheri and they were brought down to the lands and portion of land from Survey No. 22, Hissa No. 1 and entire area of Survey No. 19, Hissa No. 2 was given for cultivation to Kakadya. Jivlya was also given land for cultivation. The respondent claimed that the tin shed was used for storing implements, tools and equipments for the business. It was further stated that the fabrication work was done on the land and the job work was done on the site. The fabrication work was carried between year 1947 and 1957. The two firms. A.M. Patel Company and WITCO Engineering Company carried on business till 1957 and thereafter the business was taken over by M.K. Patel Company, the partnership firm of which the respondent is a partner. In respect of what the respondent claimed to have transpired between year 1947 and 1957, the respondent was closely cross-examined. The respondent admitted that he was born in year 1929 and was hardly 18 years old in November, 1947. In year 1947, the respondent was studying at Pune for First Year. In respect of what the respondent claimed to have transpired between year 1947 and 1957, the respondent was closely cross-examined. The respondent admitted that he was born in year 1929 and was hardly 18 years old in November, 1947. In year 1947, the respondent was studying at Pune for First Year. The respondent admitted that he was undertaking education till the year 1955 and during the period of his study, he was residing outside Bombay. The respondent accepted that after completing his Engineering Course, he joined the service with the Public Works Department of Bombay Government and left the service only in the year 1957. The admissions given by the respondent clearly establish that tall claim made that in 1947, it was the respondent who had trespassed on the land and started claiming adversely to the true owner is nothing but a figment of imagination. The uncorroborated word of the respondent that he had entered the land in 1947 could not be believed in face of the admission that till year 1957, the respondent was either undertaking education outside Bombay or was in service with the Government Department. The claim of the respondent that he had inducted Kakadya and Jivlya on the portion of the land as lessees for cultivation is also difficult to accept. The respondent claimed that he was recovering rent of Rs. 30/- and Rs. 10/- from Kakadya and Jivlya respectively but was unable to produce any rent receipts or rent notes in support of the claim. The respondent claimed that Kakadya and Jivlya were working at his business site at Andheri before they were brought down to the lands in dispute and on this aspect also, there is no material save and except the uncorroborated word of the respondent. The respondent placed reliance upon entries in 7 x 12 extract (Ex. 44) to indicate that Kakadya and Jivlya were in possession as lessees in a portion of the land. The perusal of 7 x 12 extract indicates that from year 1952 when the lands were liable to pay land revenue assessment, initially between year 1952 and 1959 the name of Kakadyas father was entered as lessee. In the year 1959, the name of Kakadya was substituted in the name of his deceased father. Apart from name of Kakadya and Jivlya, names of some other persons also appeared in 7 x 12 extract indicating occupation. In the year 1959, the name of Kakadya was substituted in the name of his deceased father. Apart from name of Kakadya and Jivlya, names of some other persons also appeared in 7 x 12 extract indicating occupation. The respondent could not explain how the names of persons other than Kakadya and Jivlya appeared in the record of rights. 7 x 12 extract shows the appellants as the owners of the disputed land right from year 1952 onwards and the name of the respondent nowhere appears in the revenue record. The respondent was unable to establish that Kakadya and Jivlya were inducted by him in the portion of the suit land as lessees in year 1947. We are unable to accept the oral testimony of the respondent on this count, in absence of any documentary evidence to suggest that Kakadya and Jivlya were cultivating the portion of the land as tenants of the respondent. It is not the case of the respondent that any revenue assessment was paid in respect of the disputed land at any time till year 1970. Realising the futility of the claim that Kakadya and Jivlya were inducted as lessees of the respondent, Shri Parikh urged that the appellants came out with the case that Kakadya and Jivlya were not lessees but were trespassers and if Kakadya and Jivalya were shown as tenants in 7 x 12 extract, then the conclusion is unescapable that these tenants were inducted by the respondent. It is impossible to accede to the submission. From the mere fact that the names of Kakadya and Jivalya appear as lessees in 7 x 12 extract, it is impossible to conclude that those persons were inducted as lessees by the respondent in the year 1947. The respondent admitted that apart from his word, he has no document to show that they were paying rent to him. It is also interesting to notice that though the respondent claimed that in the year 1947, he had inducted Kakadya as lessee, the name of Kakadya appears in the record of rights only in the year 1959 and that in pursuance of the mutation entry which sets out that the name of Kakadya was entered on the death of his father Paliya. This fact itself is enough to disbelieve the respondent that he had inducted Kakadya as lessee in the year 1947. This fact itself is enough to disbelieve the respondent that he had inducted Kakadya as lessee in the year 1947. The respondent had no explanation why the name of the respondent did not appear as the owner right from the year 1947 onwards in the revenue record. Shri Parikh submitted that Kakadya and Jivlya had surrendered the land in their occupation in favour of the respondent in the year 1970. It was contended that Kakadya died some time in the year 1970 leaving behind his widow Yesubai and son Sukeria. Shri Parikh submitted that the claim of the respondent that the leased lands are surrendered by legal representatives of Kakadya and Jivlya in year 1970 should be accepted and the lands were surrendered on some statements recorded by the revenue authorities. Neither the legal representatives of Kakadya, nor Jivlya were examined before the trial Judge and reliance upon the statements before the Talathi cannot be of any assistance because all these statements are after year 1970 and as will be indicated hereafter the respondent appears to have started making claim to the land only from December, 1970 onwards. In these circumstances, we are not prepared to accept the claim of the respondent that he was in unauthorised occupation of the lands in dispute from year 1947 and had inducted Kakadya and Jivlya as lessees. 9. It is interesting to notice from the evidence led before the trial Court that the documentary evidence to support the claim for possession of the disputed lands is only from December, 1970 onwards. The respondent claimed that it was Danmal Jain, an estate broker, who had pointed out the lands to the respondent in the year, 1947 and the said Danmal Jain had acted on behalf of the respondent and had approached the revenue authorities for the first time in December, 1970. On December, 22, 1970, application was made on behalf of the respondent before the Tahsildar claiming that the respondent is in occupation and use of land bearing Survey No. 19, Hissa No. 2 admeasuring 1 acre 37 gunthas and Survey No. 22, Hissa No. 1-A admeasuring 1 acre 4 gunthas since 20 to 25 years. The respondent claimed that he is the owner of the land though it was wrongly entered in the name of the appellants in the record of rights. The respondent claimed that he is the owner of the land though it was wrongly entered in the name of the appellants in the record of rights. The application further recites that Kakadya Paliya was cultivating the same and the respondent was receiving cash and paddy towards the rent and, therefore, the name of the respondent should be entered in the record of rights. It is interesting to note that this application was for entering the name of the respondent as owner in respect of land admeasuring 3 acres and 1 guntha. Another application dated June 22, 1971 was filed by the respondent claiming that the area of 3 acres 1 guntha was in possession of the respondent for over 20 years and the name of Kakadya Paliya is entered in the revenue record by mistake and, therefore, the said name should be deleted. On July 6, 1972, the third application was filed by respondent whereby request was made for entering the name of the respondent to the lands bearing Survey No. 19, Hissa No. 2 admeasuring 1 acre 37 gunthas and an area of 24793 sq. yards out of lands Survey No. 22, Hissa No. 1 totally admeasuring 18 acres 181/2 gunthas including Pot Kharab of 141/2 gunthas. The respondent claimed that he is in occupation of these lands for last 28 years and enjoying the fruits and produce thereof as sole and exclusive owner. The respondent claimed that he had also put up the fencing and there is no obstruction or objection to his continuous, open, peaceful, absolute and exclusive possession, use and enjoyment of the land and, therefore, the name of the appellants should be deleted and that of the respondent should be entered. It is obvious from the perusal of these applications that the respondent started initially claiming ownership of land admeasuring 3 acres 1 guntha and subsequently raised the demand for an area of over 20 acres. All these applications claiming ownership are only after December, 1970. The notice was issued to the appellants by the Tahsildar by treating the application of respondent as R.T.S. Case No. 10 of 1971 and the appellants filed their objection pointing out that the respondent had no right, title and interest to the land and his name cannot be entered. All these applications claiming ownership are only after December, 1970. The notice was issued to the appellants by the Tahsildar by treating the application of respondent as R.T.S. Case No. 10 of 1971 and the appellants filed their objection pointing out that the respondent had no right, title and interest to the land and his name cannot be entered. The appellants also pointed out that Suit No. 349 of 1970 is already pending in Bombay High Court in respect of this land and consequently the entry should not be altered to the prejudice of the appellants. The Tahsildar, inspite of the objection, passed detailed order dated June 21, 1974 accepting the claim of the respondent and directing deletion of the name of the appellants. It is unusual that the Tahsildar should write such an order including reference to reported decisions while making entries in revenue record. It is not necessary to dwell on this aspect any more because it is not in dispute that the order was set aside by the superior authority holding that the issue of title cannot be determined by revenue authorities for the purpose of making entries in the record of rights. The respondent also tried to create evidence about occupation and user of the land by approaching the Deputy Collector. The Deputy Collector issued notice dated February 26, 1971 to the appellants demanding why non-agricultural assessment should not be levied on the portion of the disputed land from year 1952. The notice was issued by the Deputy Collector to the respondent and Kakadya Paliya. On March 4, 1971, the appellants through their attorneys informed the Deputy Collector that the land was never used for non-agricultural purpose and the respondent and Kakadya has no right, title and interest in the lands and are rank trespassers. The Solicitors informed the Deputy Collector that the non-agricultural assessment should not be levied, nor fine should be levied and recovered from the respondent who is trying to create evidence for claiming title by adverse possession. On March 4, 1971 the Deputy Collector claims to have recorded statements of Yesubai and Sukeria, legal representatives of Kakadya by obtaining their thumb impressions and the statements which are indentical recite that the claim of tenancy right is given up and the non-agricultural assessment should be recovered from the respondent. On March 4, 1971 the Deputy Collector claims to have recorded statements of Yesubai and Sukeria, legal representatives of Kakadya by obtaining their thumb impressions and the statements which are indentical recite that the claim of tenancy right is given up and the non-agricultural assessment should be recovered from the respondent. On March 4, 1971, the Deputy Collector proceeded to pass order holding that the land is used for the purpose of construction of residential/commercial structure since 1952. It is not in dispute that the only structures alleged to have been constructed are two sheds, one tin shed and one shed covered by palm leaves. The order of the Deputy Collector then recites that Danmal Jain who was the Power of Attorney holder of the respondent appeared in pursuance of the notice and his statement was recorded. Danmal Jain claimed that the respondent is using the land for non-agricultural purpose of storing wood, tractor and other implements of construction since year 1952 and he is prepared to pay non-agricultural assessment. The Deputy Collector then noticed the objection filed by the appellants through their Attorneys and observed that the question of ownership of the land has no relevance for the revenue authorities and levied non-agricultural assessment from March 1, 1952 to July, 1970 of total value of Rs. 1,439.25, and the yearly assessment was thereafter fixed at Rs. 78.15. As expected, the respondent immediately paid that amount. The order of the Deputy Collector is of no value because it proceeds on the assumption that Danmal Jain has stated that the respondent is in occupation from year 1952 and is using the land for non-agricultural purpose of storing wood, tractor and other implements for construction and which assumption is totally incorrect. The perusal of the statement of Danmal Jain, which is on record, clearly indicates that Danmal Jain had not stated anything which is quoted by the Deputy Collector. Danmal Jain has merely stated that the respondent is the sole owner and is prepared to pay non-agricultural assessment. Danmal Jain has further stated that the lands are used for residential purpose and, therefore, non-agricultural assessment should be levied. It is difficult to imagine from where the Deputy Collector found out that Danmal had made statement that lands are used for non-agricultural purpose since year 1952 by the respondent and for the purpose of storing wood, tractor, other implements for construction. It is difficult to imagine from where the Deputy Collector found out that Danmal had made statement that lands are used for non-agricultural purpose since year 1952 by the respondent and for the purpose of storing wood, tractor, other implements for construction. It is obvious that everything is not in order in respect of the order of the Deputy Collector. It is obvious that all this record is prepared by the respondent to claim adverse possession, of the land in dispute. The respondent deposed in the witness-box that he had paid Rs. 2,000/- to Danmal for attending to the work before the revenue authorities. The respondent did not personally appear before the authorities and pretended ignorance as to what statements were made by Danmal Jain. We are not prepared to place any reliance upon the orders secured by the respondent after year 1970 from the revenue authorities. In pursuance of the order of the Deputy Collector, some portion of the disputed land was given City Survey Number but that fact is of no assistance to the respondent as the order holding that some part of the land was used for non-agricultural purpose is wholly incorrect. 10. Shri Parikh submitted that the fact that the respondent was in occupation of the disputed land is established by the claim that the respondent had erected fencing around the land in the year 1955 and the same was repaired in the year 1971. The learned Counsel urged that not only the fencing was erected but an iron gate was set up by the respondent and the board setting out the name of the respondent was also put up on the suit lands. The claim of construction of fencing around the land in the year 1955 as well as in the year 1971 was seriously disputed by the appellants and the respondent was cross-examined at length. We are not prepared to accept the claim of the respondent about the construction of fencing and iron gate in view of the documentary evidence produced on record in the shape of reports made by the revenue authorities and obviously at the behest of the respondent. The first report is dated April 23, 1971 and is made by the Maintenance Surveyor and addressed to the City Survey Officer. The first report is dated April 23, 1971 and is made by the Maintenance Surveyor and addressed to the City Survey Officer. The report recites that the Maintenance Surveyor visited the site to ascertain whether the land was used for non-agricultural purpose and noticed as follows : "The buildings which are situated on the site are in City Survey No. 638. Moreover, there is no fencing etc. around the said building. There are no buildings in City Survey Nos. 701 and 639." The report clearly establishes that fencing was not in existence on the date of inspection in April, 1971. It is not in dispute and indeed the respondent has admitted that fact on more than one occasion that the buildings referred to are nothing but two sheds, one being a tin shed while the other covered by palm leaves. The respondent has deposed that the sheds were initially used by Kakadya and Jivlya for their residence and subsequently for storing the material of the respondent. The report falsifies the claim of the respondent that he had erected fencing around the disputed land in year 1955 and had repaired in year 1971. The second report is in respect of the note of site inspection made on March 22, 1974 by Aval Karkun. The note recites that inspection was carried out in the presence of the respondents advocate and appellants representative of lands bearing Survey No. 19, Hissa No. 2 and Survey No. 22, Hissa No. 1. The inspection note recites that portion of the land has been fenced with barbed wire and on the eastern side, there is iron gate. The note further recites that on some of the poles of the fencing, name of respondent is written in white paint. A katcha road passing through the land in dispute was also noticed. The inspection note further recites : "There are 17 tad (patra) trees, 13 Khajuri trees, 3 mango trees, and 5 Chincha trees. There are also 5 drum-stick trees. The materials like wooden pots and barrels are lying there. These materials are claimed by the respondent. The part of the land appears to be cultivable and there are 3 or 4 khacharas containing cut grass. There are also 5 drum-stick trees. The materials like wooden pots and barrels are lying there. These materials are claimed by the respondent. The part of the land appears to be cultivable and there are 3 or 4 khacharas containing cut grass. There is name of the respondent on the iron gate." The perusal of the report of 1971 and the inspection note of 1974 leaves no manner of doubt that the fencing and the iron gate was put up by the respondent after year 1971 and the claim that the same was erected in year 1955 is totally false. The claim is made by the respondent in the witness-box only with a view to establish occupation of the disputed lands from year 1947 onwards. As noticed hereinabove, the respondent was taking education till year 1955 and was in service till year 1957. It is impossible to believe that the respondent had put up the fencing and the iron gate any time prior to year 1971. Shri Parikh submitted that the action of fencing the land and putting up of an iron gate with the board setting out the name of the respondent is an overt act which should lead the Court to conclude that the respondent was holding the land adversely to the appellants. The submission need not detain us as the assumption that the respondent was in occupation and put up a fencing and iron gate is without any foundation. When the report of year 1971 was brought to the attention of the respondent in cross-examination, the respondent merely stated that he was not aware of the report as Danmal Jain was attending to the proceedings before the revenue authorities. It is also necessary to note that a part of the land covering Survey No. 22, Hissa No. 1 was acquired by the State Government for construction of a road and Award was made providing for judgment of compensation in favour of the appellants in June 11, 1965. In respect of these proceedings, the respondent claimed ignorance in the witness-box and deposed that as he was not a party to the proceedings, he had not received any notice of the acquisition proceedings. The respondent also stated that Kakadya and Jivlya did not tell him about the proceedings although they were parties and then claimed that Kakadya and Jivlya used to consult Danmal. The respondent also stated that Kakadya and Jivlya did not tell him about the proceedings although they were parties and then claimed that Kakadya and Jivlya used to consult Danmal. The fact indicates that even in year 1965, the respondent had no connection with the lands in dispute. Shri Parikh submitted that the portion of the land acquired was not leased out by the respondent to Kakadya and Jivlya and, therefore, the question of respondent claiming any interest in the compensation amount does not arise. The submission does not impress us because it is the claim of the respondent that Kakadya and Jivlya were inducted in land bearing Survey No. 22, Hissa No. 1 as lessees and the Award indicates that a portion of the land which was entered in the name of Kakadya and Jivlya was acquired. It is nobodys case that Kakadya and Jivlya were in possession of the lands under two different lease agreements and the respondent claims that the entire area in possession of Kakadya and Jivlya was one which was leased out by the respondent. In these circumstances, the fact of passing of the Award of which the respondent was not even aware assumes importance and is clearly indicative of the fact that the respondent was not in occupation in year 1965. 11. We repeatedly enquired from Shri Parikh as to what is the evidence led by the respondent to indicate possession of the disputed land prior to year 1970. The enquiry was made as the record indicates that the respondent started making efforts to get his name entered in the revenue record only after year 1970 and the construction of fencing and iron gate, etc., is only after year 1971. Shri Parikh submitted that three circumstances should be considered to hold that respondent was in occupation of the disputed land prior to year 1970. The first circumstance is of creation of lease by respondent in favour of Kakadya and Jivlya and the second circumstance is that the plaintiffs did not examine their officers who were concerned with the land to challenge the testimony of the respondent. We have already pointed out how the claim of the respondent of creation of lease in favour of Kakadya and Jivlya is unacceptable. We have already pointed out how the claim of the respondent of creation of lease in favour of Kakadya and Jivlya is unacceptable. Shri Parikh submitted that the plaintiffs examined Vakharia at the trial and the witness claimed that he had joined the Company in the year 1955 while he was studying in college. Vakharia claimed that from year 1955, he used to accompany Mrs. Dosibai Jeejeebhoy who was Director of the appellants to various sites of the estate of the Company. Vakharia admitted that there was no Estate Manager in the Company from year 1947 to 1975 and the Estate Manager at the relevant time was one Shri Gupte and it was his duty to ensure that there was no encroachment on the property. Shri Parikh submitted that Vakharia admitted in cross-examination that at the time of giving evidence, he was Director of several Companies and in charge of Vakharia Estates and Private Limited. The learned Counsel urged that evidence of Vakharia is of no assistance because for the crucial years, the witness was not connected with the appellants. Shri Parikh submitted that Minochar Dinshaw was the person who exercised all control over the property since 1930 to 1972 as deposed to by Vakharia. In addition, Mrs. Dosibai used to take part in the management of the Company and Nanabhoy was also one of the Director since year 1950 to 1988. The learned Counsel urged that none of the Directors were examined at the trial, nor the relevant staff who was concerned with the management of the estate including the lands in dispute and, therefore, adverse inference should be drawn to conclude that the respondent was in occupation from year 1947. Shri Parikh submitted that non-examination of crucial witnesses by the appellants is a circumstance which should warrant the Court to hold that even the uncorroborated word of the respondent about his adverse possession is acceptable. It is impossible to accede to the submission. The respondent has come to the Court with a specific claim of adverse possession and the burden upon the respondent to establish that claim is not discharged merely because, according to the respondent, the relevant witnesses were not examined by the appellants. It is impossible to accede to the submission. The respondent has come to the Court with a specific claim of adverse possession and the burden upon the respondent to establish that claim is not discharged merely because, according to the respondent, the relevant witnesses were not examined by the appellants. The case of adverse possession must be established by positive, reliable and acceptable evidence to be led by the party claiming adverse possession and it is not permissible to hold that the title of the true owner stands extinguished inspite of absence of such evidence. The third and the last circumstance urged by Shri Parikh is the evidence of the respondent about the user of the land from year 1947. The learned Counsel submitted that the respondent has deposed in the witness box about the use of the land. The respondent stated that the land was used for the purpose of business of the firm and steel fabrication work was carried on. The fabrication work involved fabrication of steel trusses, posts, steel columns, grills, collapsible gates, grill work, etc. The respondent deposed that equipments like welding sets, drilling machinery and cutting machinery and other types of machinery were needed for the fabrication work. The respondent asserted that the work of fabrication was carried at the site from year 1947 onwards. The witness claimed that the partnership firm of M.K. Patel Company had executed several works like construction of passengers jetty at Elephanta island, at Ratnagiri, at Tarapur, at Mandwa, at Mankhurd, at Marve-Manori, etc. between years 1956 to 1974. The respondent claimed that the steel cylinders used in the construction of the jetty were fabricated on the disputed land. The respondent claimed that the equipment needed for fabrication of cylinders was bending roller and welding equipments and the welding set was procured from Hindustan Electric Company Limited in the year 1958. The respondent conceded that account books of the relevant years are not available. The respondent then claimed that he had purchased two tractors and the motor of the tractor was used for generating energy required for fabrication work. The respondent had to concede that electric power was not available on the land at any time. The respondent further claimed that he was manufacturing hume pipes on the suit land and this manufacture was commenced in the year 1965. The respondent had to concede that electric power was not available on the land at any time. The respondent further claimed that he was manufacturing hume pipes on the suit land and this manufacture was commenced in the year 1965. Indeed, the respondent claimed that in the year 1965, apart from Indian Hume Pipe Company, which is a reputed concern, the respondent was the only other manufacturer in respect of 6 diameter hume pipes meant for foundation of jetties. The respondent stated that the source of power to run the plant for manufacturing hume pipes on the suit land was provided by tractor by means of belting. The respondent produced the purchase vouchers of several articles from year 1965-66 onwards and Shri Parikh submitted that these articles which were purchased were found at the time of recovery of possession by the appellants in execution of the decree. Relying on this circumstance, it was urged that the claim of the respondent that articles purchased in year 1965 were kept on the disputed land from the date of purchase for the purpose of business activities, fabrication, etc., should be accepted. It is impossible to accept the submission. The mere fact of production of purchase vouchers cannot lead to the conclusion that the article covered by the vouchers were stationed on the disputed land. Shri Chagla rightly submitted that apart from the purchase vouchers, the respondent did not produce the delivery challans or led any evidence of any person connected with the alleged manufacturing activities on the suit land. Indeed, it is difficult to believe that 6 diameter of hume pipes could be manufactured on the suit land which did not enjoy electric power. The respondent also could not produce any delivery challan in respect of the alleged manufacture and sale. The explanation of Shri Parikh is that the the entire manufacturing items were consumed by the respondent while undertaking jobs at several places. We are not prepared to accede to the submission of the learned Counsel. Reliance was then placed upon Rozmel entries of year 1957 to indicate purchase of an article which according to the learned Counsel was stationed on the disputed land. We are not prepared to accede to the submission of the learned Counsel. Reliance was then placed upon Rozmel entries of year 1957 to indicate purchase of an article which according to the learned Counsel was stationed on the disputed land. We are not prepared to place any reliance upon this Rozmel entry as the entry does not indicate that the article was stored on the disputed land and, in any event, the respondent had not produced any account books to establish that claim. Shri Parikh then referred to Photograph (Ex. 35) which is alleged to have been taken by the respondent in the year 1965. Shri Parikh submitted that the perusal of this photograph will indicate that the respondent had set up machineries for manufacture of pipes and moulds. On persual of the photograph, we do not find anything to indicate that the photograph, even if accepted, was taken by the respondent in the year 1965 is of the machinery stationed on the land. It is not the claim of the respondent that the machinery was permanently affixed to the land. It is impossible to accept the claim of the respondent that the machinery was in existence from year 1965 onwards because the reports of year 1971 as well as year 1974 to which reference is made hereinabove do not refer to the existence of any machinery on the disputed land. Shri Parikh submitted that the respondent was not cross-examined to suggest that the photograph was not taken on the disputed land and in absence of any such suggestion, it must be concluded that the appellants accepted the claim of the respondent that photograph was taken on the disputed land. Reliance is placed on the decision reported in A.I.R. 1961 Calcutta 359, (A.E.G. Carapiet v. A.Y. Derderian)1, to urge that when a party declines to avail of the opportunity to put essential and material case in cross-examination, it must follow that the party believed the testimony given and could not dispute it at all. We are unable to accede to the submission that the cross-examination does not indicate that the appellants challenged the claim of the respondent that photograph was taken on the disputed land. We are unable to accede to the submission that the cross-examination does not indicate that the appellants challenged the claim of the respondent that photograph was taken on the disputed land. The tenor of the cross-examination leaves no manner of doubt that the appellants first disputed the claim that the photograph was, at all, taken in the year 1965 and secondly that it was taken at the suit site. 12. Shri Parikh had to concede that but for the three circumstances which are considered, hereinabove the only material to establish possession of respondent prior to year 1970 is uncorroborated testimony of the respondent. We are unable to place any reliance upon the testimony of the respondent as, in our judgment, the respondent is not a person on whose words reliance can be placed. The respondent has set up a false case to claim possession of large area of open land and though initially on December 22, 1970, the respondent was making effort to enter his name in record of rights for an area of 3 acres l guntha, subsequently the greed of the respondent led him to make claim to the larger and larger area. According to the respondent, 7 x 12 extract indicates possession of Kakadya to an area of 1 acre 37 gunthas equivalent to 9,317 sq. yards of Survey No. 19, Hissa No. 2 and of an area of 1 acre 4 gunthas equivalent to 5,324 sq. yards of Survey No. 22, Hissa No. 1. Kakadya was in possession of 14,641 sq. yards, while, on the other hand, Jivlya was in possession of 32 gunthas equivalent to 3,872 sq. yards of Survey No. 22, Hissa No. 1. The respondent secured release deed from the legal representatives of Kakadya indicating surrender of lands in their possession. The release deed makes interesting reading as the area alleged to have been surrendered is shown 24,793 sq. yards out of Survey No. 22, Hissa No. 1, while the area shown in 7 x 12 extract was only 5,324 sq. yards. Though 7 x 12 extract shows entire land as agricultural land, the release deed while increasing the area from 5,324 sq. yards to 24,793 sq. yards of Survey No. 22, Hissa No. 1 divides it into two parts as agricultural and non-agricultural being 12,140 and 12,653 sq. yards respectively. yards. Though 7 x 12 extract shows entire land as agricultural land, the release deed while increasing the area from 5,324 sq. yards to 24,793 sq. yards of Survey No. 22, Hissa No. 1 divides it into two parts as agricultural and non-agricultural being 12,140 and 12,653 sq. yards respectively. While increasing the area of land out of Survey No. 22, Hissa No. 1, the area covered in Survey No. 19, Hissa No. 2 is maintained. It is obvious that the respondent by obtaining the release deed is trying to prepare evidence to claim more and more land and the respondent had no explanation as to how the area increased in the release deed. Shri Chagla invited our attention to declaration dated February 23, 1975 made by the respondent. The respondent declared that lands set out in the schedule to the declaration, that is an area of 19938 sq. yards plus 18048.40 sq. yards out of Survey No. 19/2 and Survey No. 22/1 originally belonged to the firm of M/s. A.M. Patel and Company and the firm was in occupation and Vahivat thereof for about 30 years. The respondent declared that the lands formed the assest of the firm of M/s. A.M. Patel Company after year 1957 onwards when all the assets and liabilities of the earlier firm were taken over. The respondent then declared that there was no tangible income, rent or profits derived from the lands and the lands were enjoyed by the persons cultivating the same and the produce of the land was very meagre and enjoyed by the tenants and nothing was received by the firm. The respondent further declared that though the lands were in possession of the firm, the name of the respondent was entered as owner only recently. The respondent further declared that though the lands were in possession of the firm, the name of the respondent was entered as owner only recently. What the respondent stated thereafter is required to be set out : "I say and declare that I am only the benamidar and my name is shown as the owner as representing the firm as stated above only for the sake of administrative convenience, but I hold the same for and on behalf of and for the benefit of the said firm of M/s. M.K. Patel Company who are the obstensible owners and I am only one of the partners of the said firm." Shri Chagla rightly contended that the declaration clearly indicates that the claim of the respondent that he was personally in adverse possession from year 1947 is entirely false and frivolous. The learned Counsel urged that the respondent filed application under Order 21, Rule 99 claiming that he is personally in adverse possession from year 1947 onwards but the declaration in August, 1975 gives a death-blow to such claim. The respondent when confronted with the declaration in the witness-box had no explanation. The respondent claimed that he could not recollect whether he had made such declaration on affidavit. The respondent when pointedly asked had to concede that the statements and declarations are correct. The respondent then asked as to why a contrary claim was made in the application under Order 21, Rule 99 and the answer was that the respondent was not aware of making such a declaration on oath. It is impossible to place any reliance upon the oral testimony of respondent whose memory conveniently fails him from time to time. 13. Shri Parikh submitted that there are tell-tale circumstances to indicate that the lands in dispute were in possession of trespassers and in support of the submission, reliance was placed on letter dated March 11, 1959 written by Attorneys of the appellants to the Talathi. The letter, inter-alia, recites that neither Paliya Ziprya, nor Kakadya Paliya whose names are proposed to be entered as tenants are put in possession by the appellants. The Attorneys claimed that the lands are lying vacant and are in appellants' possession notified for Industrial area under the Master Plan prepared by the Development Control Authority. The letter, inter-alia, recites that neither Paliya Ziprya, nor Kakadya Paliya whose names are proposed to be entered as tenants are put in possession by the appellants. The Attorneys claimed that the lands are lying vacant and are in appellants' possession notified for Industrial area under the Master Plan prepared by the Development Control Authority. Shri Parikh submitted that this letter is indicative of the fact that the appellants were conscious that Kakadya and his father Paliya were in occupation of the land even though not inducted by the appellants. Reliance was placed on agreement of sale dated August 26, 1964 between the appellants and Govindbhai Appaji Bhatte and others and which gave rise to the filing of Suit No. 349 of 1970 by the appellants for specific performance. Shri Parikh submitted that Clause 4 of the agreement clearly recites that the purchasers have agreed to purchase the lands in the state and condition as existing and that there are certain persons in occupation of the portion of the land. The clause further recites that the purchasers will take the land subject to all rights and claims and objection will not be raised on the ground that unauthorised persons are in occupation. Shri Parikh submits that these recitals in the agreement are indicative of the fact that even in the year 1964, the appellants were conscious that the portion of the land was in occupation of the trespassers. Shri Parikh submits that this circumstance supports the claim of the respondent of holding the disputed lands adversely to the appellants. We are not impressed by this submission. The lands which were agreed to be sold covered vast area and merely because the names of some occupiers were entered into the revenue records as lessees, that cannot lead to the conclusion that the respondent was in adverse possession of the disputed land. As mentioned hereinabove, the 7 x 12 extract indicates that apart from Kakadya and Jivlya, there are other persons whose names are entered as occupier of small portions of land. The respondent was specifically asked as to how the names of Bhawanji Dharamsey, William Fonseca, etc. appear in 7x12 extract as in possession of some area and the respondent confessed that he is not aware as to how the names of these persons appeared. The respondent was specifically asked as to how the names of Bhawanji Dharamsey, William Fonseca, etc. appear in 7x12 extract as in possession of some area and the respondent confessed that he is not aware as to how the names of these persons appeared. The agreement merely refers to the claim which may be raised by some persons relying upon the entries in 7 x 12 extract and such recital in the agreement can by no stretch of imagination lend support to the respondent's claim of adverse possession. Examining the evidence led by the respondent in its proper perspective, we have no hesitation to conclude that the evidence is entirely unreliable and insufficient to warrant a conclusion that the respondent had acquired title to the disputed land by adverse possession. The Court should be extremely slow in inferring adverse possession in absence of strong and positive evidence because the conclusion accepting the claim destroys the title of the true owner and creates a title in favour of a rank trespasser. The doctrine of acquisition of title by prescription is based on the principle that the owner of the property should be vigilent to guard his rights. There is presumption in law that owner of the property is in possession and the presumption cannot be discarded unless the person claiming hostile leads acceptable evidence and cannot succeed by inviting the Court to draw inferences. On careful examination of the entire evidence, we have no hesitation to conclude that the respondent was never in occupation of the disputed land any time prior to year 1970 and effort was made by respondent to create evidence only after December, 1970. It is possible that the respondent had forcibly taken possession some time after year, 1971 but such forcible possession cannot create any title in favour of the respondent. In our judgment, the trial Judge was in error in accepting the case of the respondent in regard to adverse possession. The finding recorded by the trial Judge on this aspect is clearly contrary to the evidence on record and, therefore, cannot be sustained. On the facts and circumstances of the case, the conclusion is unescapable that the respondent has failed to establish acquisition of title by adverse possession in respect of the disputed land. 14. The finding recorded by the trial Judge on this aspect is clearly contrary to the evidence on record and, therefore, cannot be sustained. On the facts and circumstances of the case, the conclusion is unescapable that the respondent has failed to establish acquisition of title by adverse possession in respect of the disputed land. 14. Shri Parikh then submitted that in the enquiry undertaken by the trial Court in accordance with Order 21, Rule 101 of the Code of Civil Procedure, it was necessary for the appellants to establish title to the disputed property. The learned Counsel did not dispute that the title of the appellants is established by conveyance dated July 24, 1951. The learned Counsel submitted that the trial Judge was justified in recording a finding that though the appellants established title in respect of area covered by Survey No. 19, Hissa No. 2, the appellants failed to prove the title in respect of Survey No. 22, Hissa No. 1. Shri Chagla submitted that the finding of the trial Judge is unsustainable and we find considerable merit in the submission of the learned Counsel. It is not in dispute that by deed of conveyance dated July 24, 1951, the previous owner Nanabhoy Byramjee conveyed several lands in 7 villages including village Poisar in favour of the appellants. In pursuance of the conveyance, the lands were entered in the name of the appellants in Akar Phod Patrak as owners. The trial Judge felt that the schedule annexed to the conveyance setting out various Survey Numbers does not include Survey No. 21, Hissa No. 1. The learned Judge overlooked that the conveyance specifically recites that the vendor was entitled to several pieces of land situated in village Poisar and which are described in the schedule. The schedule does not cover Survey No. 22, Hissa No. 1 which admeasures 18 acres 24 gunthas but refers to Survey No. 22, Hissa No. 14. It is not in dispute that the area of Survey No. 22, Hissa No. 14 is only 5 gunthas but the Schedule recites that the area of Survey No. 22, Hissa No. 14 is 18 acres 29 gunthas. In other words, the schedule refers to area covered by both Hissa No. 1 and Hissa No. 14 of Survey No. 22. It is not in dispute that the area of Survey No. 22, Hissa No. 14 is only 5 gunthas but the Schedule recites that the area of Survey No. 22, Hissa No. 14 is 18 acres 29 gunthas. In other words, the schedule refers to area covered by both Hissa No. 1 and Hissa No. 14 of Survey No. 22. Hissa No. 1 admeasures 18 acres 24 gunthas and Hissa No. 14 admeasures 5 gunthas and the total of 18 acres 29 gunthas is shown against Hissa No. 14. It is also interesting to note that the Schedule sets out the assessment of each of the land and it is not in dispute that the assessment of Hissa No. 1 is Rs. 9/-, while Hissa No. 14 is 1 Anna. The assessment shown of Hissa No. 14 is Rs. 9 and 1 Anna and that clearly establishes that the schedule had combined the area of two Pot Hissas as well as the quantum of assessment. The entire area shown under the conveyance from Poisar village admeasures 920 acres 161/4 gunthas and that includes the area covered by Survey No. 22, Hissa No. 1. In face of this clear evidence, it is difficult to appreciate how it can even be suggested that the area of 18 acres 24 gunthas of Survey No. 22, Hissa No. 1 was not conveyed in favour of the appellant Company. The trial Judge also observes that the objection raised on behalf of the respondent on this count is extremely technical and the omission of Survey No. 22, Hissa No. 1 in the Schedule is due to the mistake. In addition to this aspect, the appellants produced before the trial Judge a deed of rectification executed on June 29, 1989 and which is a registered document. Vakharia who was examined on behalf of the appellants before the trial Judge deposed that the documents were executed by the original vendor in favour of the appellants in the presence of the witness and the witness has noticed the original vendor putting his signature. The document clearly sets out the mistake which has occured in the schedule. The learned trial Judge curiously declined to exhibit the document and marked it for identification as Ex. The document clearly sets out the mistake which has occured in the schedule. The learned trial Judge curiously declined to exhibit the document and marked it for identification as Ex. X/6 on the ground that even if the signature of the vendor on the document is proved, unless the contents are proved, the document cannot be admitted. We are afraid we cannot share the view of the learned trial Judge. The document stands proved as soon as the fact of execution is proved and it is wholly irrelevent whether the contents are proved. The proof of contents of the document may be necessary in a given case, but the proof of document and the evidentiary value are two distinct and different factors. We are unable to find any reason and Shri Parikh was at pains to urge how the document was not proved. The deed of rectification, in our judgment, clearly establishes that a mistake occured while describing the lands in the schedule to the conveyance. The trial Judge observed that even assuming that the deed of rectification is proved, still if there is a mistake in describing the Survey Numbers in the original deed, then the only remedy of the party is to apply to the Court under section 26 of the Specific Relief Act. It is not possible to share the reasoning of the learned trial Judge. The trial Judge also observed that in the proceedings under Order 21, Rule 99, it is not open for the appellants to produce additional evidence to establish title. It is impossible to accept the observation in view of the clear-cut provision of Rule 101 of Order 21 of the Code of Civil Procedure. The Court is required to adjudicate in respect of rival claims of right, title and interest to the property in dispute and we do not find any reason why the appellants could not rely upon the deed of rectification. In our judgment, the finding of the trial Judge that the appellants failed to establish title in respect of area of 18 acres 24 gunthas of Survey No. 22, Hissa No. 1 is incorrect and is required to be set aside. In our judgment, the appellants have established their title to each and every portion of the disputed land while the respondent has failed to establish acquisition of title by adverse possession. 15. In our judgment, the appellants have established their title to each and every portion of the disputed land while the respondent has failed to establish acquisition of title by adverse possession. 15. Shri Parikh then submitted that the decree secured by the appellants in Suit No. 349 of 1970 was collusive decree and in execution of such collusive decree, the respondent was dispossessed. It was contended that the appellants cannot be permitted to recover possession from the respondent, even assuming that the respondent is a rank trespasser, in pursuance of the collusive decree. The learned Counsel further submitted that by collusive decree, the appellants cannot seek relief from the Court to recover possession. In support of the submission, the learned Counsel urged that the agreement of sale dated August 26, 1964 between the appellants and Govindbhai Bhatte and 11 others did not even indicate that possession was handed over by the appellants to the proposed purchasers but, on the other hand, Clause 4 of the agreement recites that the proposed purchasers were aware that certain portion of the land agreed to be sold is in occupation of the trespassers. It was submitted that for specific performance of this agreement, the appellants instituted suit and the perusal of the plaint makes it clear that the appellants did not even plead that possession was at any time handed over to the proposed purchaser. Shri Parikh referred to the prayers in the suit and submitted that the appellants never prayed for recovery of possession from the proposed purchaser. Reference was also made to the written statement filed by the proposed purchasers to urge that the proposed purchasers also claimed that they were never put in possession. Shri Parikh submitted that the suit was settled by consent of parties and consent decree was passed on July 14, 1976 in pursuance of the consent terms. The consent terms, says the learned Counsel, curiously provide for the proposed purchasers handing over physical vacant possession of the suit lands to the appellants. It was urged that the consent terms were collusive and surrepticiously consent decree was secured in respect of possession of land when that relief was not even sought in the plaint. From these facts, it was contended that the appellants could not establish title to the disputed land and the recovery in execution was vitiated. It was urged that the consent terms were collusive and surrepticiously consent decree was secured in respect of possession of land when that relief was not even sought in the plaint. From these facts, it was contended that the appellants could not establish title to the disputed land and the recovery in execution was vitiated. The contention found favour with the trial Judge, but, in our judgment, the grievance of Shri Parikh is without any merit. It is necessary to bear in mind that the enquiry before the trial Judge was in accordance with the provisions of Rule 101 of Order 21 of the Code of Civil Procedure and that rule requires the Court to adjudicate upon the right, title and interest in the property between the parties to the proceedings. The question which required determination by the trial Court was whether the appellants had title to the disputed lands or whether the respondent has perfected title by adverse possession. The grievance of Shri Parikh that the respondent was dispossessed in execution of the decree and that decree was a collusive one looses all its force when it is clear that the appellants are not basing title to the disputed land under the decree but independently of the decree. The title of the appellants to the disputed land is based upon deed of coveyance dated July 24, 1951 and the title is not claimed under the decree. Once, this position is clear, then the Court exercising power under Rule 101 cannot conclude that the decree was collusive and, therefore, the recovery of possession was vitiated. The recovery of possession would be vitiated provided the appellants had lost their title by respondent acquiring title by adverse possession. As finding is already recroded that the respondent has miserably failed to establish acquisition of title by adverse possession , the question as to whether the decree obtained by the appellantts was collusive or otherwise looses all its relevance. Apart from this fact, the question as to whether the decree was collusive or otherwise cannot be determined by the executing Court under Rule 101 at the behest of the party who had no right whatsoever to the disputed land. The respondent has neither title nor legal right to remain in possession and consequently it was wholly immaterial to examine whether the decree was collusive. The respondent has neither title nor legal right to remain in possession and consequently it was wholly immaterial to examine whether the decree was collusive. Even otherwise, it is difficult to appreciate how a decree can be termed as collusive merely because the prayer for possession was not made at the time of the institution of the suit. It is quite possible that the proposed purchaser may have obtained possession during the pendency of the suit and, therefore, the consent terms and the consent decree provided that the proposed purchaser shall return back the possession. It is not open for the Court to proceed to declare the decree passed by the competent Court as collusive at the behest of the third party and that too in execution proceedings without there being substantial and sufficient material on record. In our judgment, it is not necessary to examine this aspect in greater detail as the appellants do not rely upon the decree to establish right, title and interest to the disputed land. Shri Parikh then submitted that the consent decree was not executable and in support of the submission placed reliance upon Order 23, Rule 3 of Code of Civil Procedure as existing prior to amendment in the year 1976. Rule 3 of Order 23 prior to amendment, inter-alia, provided that where it is proved to the satisfaction of the Court that suit has been adjusted by any lawful agreement or compromise, then the Court shall order such agreement or compromise to be recorded and shall pass decree in accordance therewith so far as it relates to the suit. The learned Counsel submitted that the compromise between the appellants and the proposed purchasers providing for handing over possession of the suit land was not one which related to the suit and consequently the consent decree which provided for recovery of possession by the appellants was not executable. In other words, the submission is that the consent terms between the appellants and the proposed purchasers in respect of handing over possession of the suit land was merely an agreement and could not have made part of the consent. decree. In other words, the submission is that the consent terms between the appellants and the proposed purchasers in respect of handing over possession of the suit land was merely an agreement and could not have made part of the consent. decree. It is not in dispute that after amendment of Rule 3 of Order 23 in the year 1976, it is open for the Court to pass a decree in accordance with the consent terms between the parties, even if the subject matter of the agreement is beyond the subject matter of the suit. Shri Parikh submitted that decree in Suit No. 349 of 1970 was passed on July 14, 1976 and that is prior to the amendment of Rule 3 of Order 23 of the Code of Civil Procedure. The contention that under the unamended Rule 3 of Order 23 of the Code of Civil Procedure, it was not open for the Court passing the decree to direct recovery of possession as the said agreement did not relate to the suit is not correct. The expression "so far as it relates to the suit' came up for consideration before a Division Bench of this Court reported in 33 Bombay Law Reporter 1457 (Shambhusing Sujansing Thakor v. Manilal Vadilal Gandhi)2, where a suit was instituted by the second mortgagee against the mortgagor and the purchaser of mortgage right and the suit ended in a compromise decree. The compromise decree, inter-alia- provided for payment of mortgage dues by the purchaser and thereupon the purchaser was entitled to recover possession from the original mortgagor. After the purchaser paid the mortgage amount and applied for recovery of possession, it was contended by the original mortgagor that the agreement went beyond the scope of Rule 3 of Order 23 and the compromise decree based on such agreement could not be enforced. The Division Bench over-ruled the contention holding that payment of mortgage amount was a subject of the suit and consequently compromise terms entitling the purchaser of the mortgagor's right to recover the property on payment of the amount squarely fall within the meaning of expression "so far as it relates to the suit". The Division Bench held that the expression "so far as it relates to the suit" is wide to embrace the claim. The Division Bench held that the expression "so far as it relates to the suit" is wide to embrace the claim. In the decision reported in A.I.R 1964 Supreme Court 874 (Haji T.J. Abdul Shakoor and others v. Bijai Kumar Kapur and others)3, the facts were that suit was filed for recovery of Rs. 50,000/- due on a simple mortgage. Compromise terms were filed and the decree was passed in accordance with the terms. The consent decree provided for decree as prayed and mortgage properties were to be sold for the decretal dues and the defendants to execute the regular sale deed. The decree-holder filed an application to seek execution of the sale deed in accordance with consent terms and the applicantion was opposed on the ground that the relief sought could not be had in execution but only by a separate suit in as much as the consent decree did not relate to the suit under Order 23, Rule 3 of the Code of Civil Procedure. The objection succeeded before the trial Court but was set aside in High Court in appeal. The Supreme Court while dismissing the appeal observed that the property to be conveyed was the entire mortgage property and which was liable to be sold in execution of the mortgage decree and consequently, the consent terms were not outside the scope of the suit. The perusal of the decision of the Supreme Court makes it clear that the expression "so far as it relates to the suit" was given broad meaning. In the present case, the suit was for specific performance of an agreement to sell several properties. Though the relief claimed in the suit by the vendor was not for recovery of possession, it can hardly be suggested that the subject matter did not cover the suit properties. Indeed, the suit was for specific performance compelling the defendants to obtain the sale deed in respect of lands involved. In our judgment, the consent terms reached between the appellants and the proposed purchasers providing for recovery of possession, even though the prayer was not made in the suit, cannot be considered as beyond the ambit of Rule 3 of Order 23 of the Code of Civil Procedure as it stood prior to amendment. In our judgment, the consent terms reached between the appellants and the proposed purchasers providing for recovery of possession, even though the prayer was not made in the suit, cannot be considered as beyond the ambit of Rule 3 of Order 23 of the Code of Civil Procedure as it stood prior to amendment. In our judgment, the trial Judge was in error in holding that the decree was a collusive one and the decree was not executable in respect of recovery of possession and consequently the proceedings in execution where the appellants reovered possession from the respondent were vitiated. We are unable to share the reasoning and conclusion of the trial Judge on this count. In our judgment, there is no infirmity whatsoever in the consent decree passed by this Court and the execution thereof. 16. Shri Parikh finally submitted that the trial Court was not entitled to adjudicate the right, title and interest of the respondent under Rule 101 of Order 21 of the Code of Civil Procedure. It was urged that the respondent was neither a judgment-debtor, nor claiming on behalf of the judgment-debtor and was also not a transferee of an interest from the judgment-debtor and consequently when an issue is raised as regards the right of such person to remain in occupation, the remedy of the decree-holder is only by institution of a separate suit and possession cannot be secured if obstructed in execution and if such person is dispossessed in execution, then he is entitled as a matter of course to restoration and then it is open for the decree-holder to file a separate suit, if so advised. It is impossible to accede to the submission of the learned Counsel. To appreciate the submission of the learned Counsel, it is necessary to refer to the relevant provisions of Order 21 of the Code of Civil Procedure prior to its amendment in the year 1976. Order 21, Rule 97 onwards dealt with subject of resistance to delivery of possession to decree-holder or purchaser. Rule 97 inter-alia, provided that where the holder of a decree for possession of immovable propety is resisted or obstructed by any person in obtaining possession, then the decree-holder can make an application to the Court complaining of such obstruction. Order 21, Rule 97 onwards dealt with subject of resistance to delivery of possession to decree-holder or purchaser. Rule 97 inter-alia, provided that where the holder of a decree for possession of immovable propety is resisted or obstructed by any person in obtaining possession, then the decree-holder can make an application to the Court complaining of such obstruction. Sub-rule (2) provided that the Court will fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same. Rule 98 read as follows : "Where the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation, to be detained in the civil prison for a term which may extend to thirty days." (underline supplied). Rule 99 provided that where the Court is satisfied that the resistance or obstruction was occasioned by any person other than the judgment-debtor claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court shall dismiss the application. Rule 100 dealt with cases where any person other than the judgment-debtor was dispossessed of immovable property by the holder of the decree for possession and the rule conferred a right upon such person to make an application seeking restoration. Rule 100 dealt with cases where any person other than the judgment-debtor was dispossessed of immovable property by the holder of the decree for possession and the rule conferred a right upon such person to make an application seeking restoration. Rule 103 read as follows : "Any party not being a judgment-debtor against whom an order is made under Rule 98, Rule 99, or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property; but, subject to the result of such suit (if any), the order shall be conclusive." These provisions which were in existence prior to the amendment of the Code of Civil Procedure in the year 1976 clearly established that in case where the decree-holder is obstructed in recovering possession, then an application could be made to the executing Court for removal of obstruction and in case any person other than the judgment-debtor or claiming through such judgment-debtor is dispossessed in execution of the decree, then such person can make application to the executing Court for restoration. In such cases, the executing Court will examine as to whether the obstruction was occasioned for just cause or otherwise, or whether the person who was dispossessed of property was in possession on his own account, independently of the judgment-debtor and then pass appropriate orders. In case the obstruction was for just cause, then the decree-holder cannot execute decree against such obstructionist and in case the obstruction is without any just cause then the Court will direct removal of the same. In case, the person dispossessed in execution establishes that possession was held on his own account and independently of the judgment-debtor then such person would be put back in possession by the executing Court and in case the person fails to establish such claim, then the application for restoration will be dismissed. Rule 103 provided that any party not being a judgment-debtor aggrieved by order passed by the executing Court was entitled to institute suit to establish the right to the possession of the property and the order of the executing Court shall subject to the result of such suit. In other words, the orders of the executing Court are not final and party aggrieved by the same was entitled to file a substantive suit to establish right to that property or possession thereof. In other words, the orders of the executing Court are not final and party aggrieved by the same was entitled to file a substantive suit to establish right to that property or possession thereof. The Parliament realised the hardships suffered by the parties in view of multiplicity of proceedings due to the provisions under Order 21, Rules 97 to 103 as it existed prior to year 1976. The Parliament, therefore, stepped in and amended the provisions with a view to avoid multiplicity of litigation. Sub-rule (2) of Rule 97 was substituted and now reads as follows: "Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained." Rule 98 was re-cast and reads as follows : "(1) Upon the determination of the questions referred to in Rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule (2); (a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or (b) pass such other order as, in the circumstances of the case, it may deem fit. (2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other persons at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days." (underline supplied). Rules 99 and 101 after amendment read as follows : " 99(1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property, has been sold in execution of decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession. Rules 99 and 101 after amendment read as follows : " 99(1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property, has been sold in execution of decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession. (2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained." "101. All questions (including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. Provided that when the Court is not competent to decide such question due to want of pecuniary jurisdiction the Court shall send the execution case to the Court of the District Judge to which the said Court is subordinate and thereupon the Court of the District Judge or any other competent Court to which it may be transferred by the District Judge, shall deal with it in the same manner as if the case had been originally instituted in that Court." (underline supplied) The perusal of Rule 97 to Rule 101 of Order 21 of the Code of Civil Procedure as they now exist clearly indicates the departure from the provisions prior to the amendment. The first important depature is that when an application is made by decree-holder for removal of obstruction under Rule 97 or when an applicantion under Rule 99 is made by person othe than the judgment-debtor complaining of dispossession of immovable property by the decree-holder in execution of the dercee, then the Court is required to adjudicate upon such application in accordance with the provisions of Rule 101. Prior to the amendment, the Court was required to be satisfied that the obstruction was with or without any just cause or whether the person dispossessed was in possession of the property on his own account and the order passed on satisfaction of the executing Court was subject to the result of the suit which can be filed by the aggrieved party. The amended provision of Rule 101 prescribes that all questions including questions relating to right, title and interest in the property arising between the parties to the proceedings on an application under Rule 97 or Rule 99 and relevant to the adjudication of the application shall be determined by the executing Court before which the application is made and not by a separate suit. In other words, the executing Court is required to determine all questions about the title to the property in dispute and also the right to remain in possession of such property. The decision of the executing Court is made final and amounts to a decree and it is not open for either parites to institute separate suit to establish the title to the property or the right to remain in possession. To enable the executing Court to determine the rights between the parties, Rule 101 provides that notwithstanding anything to the contrary contained in any other law, the executing Court shall be deemed to have jurisdiction to decide questions of title. The ambit of Rule 101 entitles the executing Court to decide all questions regarding the title to the property as well as right to possession and so also whether the decree sought to be executed is vaild or otherwise. Prior to the amendment, the principle well settled was that the executing Court cannot go behind the decree but after the amendment, it is open for the executing Court even to go behind the decree to ascertain whether the decree-holder has title to the property, if such question is raised by the parties to the proceedings on an application under Rule 97 or Rule 99 and then adjudicate the same. Rule 97 or Rule 99 cast an obligation upon the executing Court to determine the question referred to in Rule 101 before disposing of the application in accordance with the determination. Rule 97 or Rule 99 cast an obligation upon the executing Court to determine the question referred to in Rule 101 before disposing of the application in accordance with the determination. Shri Parikh submitted that sub-rule (2) of Rule 98 controls the power of the executing Court and the right to determination under Rule 101 is also controlled by sub-rule (2) of Rule 98. The submission is that sub-rule (2) of Rule 98 refers to the satisfaction of the Court that the resistance or obstruction occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf and once the Court comes to the conclusion that the resistance or obstruction was not occasioned at the behest of the person who is a judgment-debtor or claiming through the judgment-debtor or at the behest of the judgment-debtor, then the executing Court need not proceed to determine the question under Rule 101 but drive the decree-holder to file a separate suit. The submission is devoid of any merit. In the first instance, sub-rule (2) of Rule 98 is attracted only in case of an application filed by the decree-holder for removal of obstruction or resistance and sub-rule (2) of Rule 98 is not applicable when the application is made by a person who is already dispossessed of immovable property in execution of the decree. Secondly, the plain reading of sub-rule (2) of Rule 98 makes it clear that the order which the executing Court is to pass is only upon the detemination of questions referred to in Rule 101 and in accordance with such determination. The contention that the power to pass order under sub-rule (1) is subject to the provisions of sub-rule (2) and, therefore, sub-rule (2) controls the powers is not correct. Sub-rule (2) also opens with the expression "Where, upon such determination" and the plain reading of sub-rule (2) indicates that it covers the cases where inspite of the determination and inspite of the order under sub-rule (1) in accordance with such determination the judgment-debtor or some other person on his behalf continues to obstruct or resist the execution of the decree. Sub-rule (2) provides that in such cases the executing Court may detain in civil prison judgment debtor or other person who at the instigation or on behalf of the judgment-debtor resists the execution of decree. Sub-rule (2) provides that in such cases the executing Court may detain in civil prison judgment debtor or other person who at the instigation or on behalf of the judgment-debtor resists the execution of decree. In our judgment, sub-rule (2) merely provides for a punitive action against judgment-debtor or any person on his behalf continues to resist or obstruct the execution of the decree, inspite of the determination under Rule 101 or order in accordance with such determination by the executing Court. We are unable to accede to the submission of Shri Parikh that once it is established that the person obstructing the decree is not a judgment-debtor or some person on behalf of judgment-debtor, then the executing Court is not entitled to determine the question under Rule 101. To accede to the submission of the learned Counsel would make the amended provision of Rule 101 as well as Rules 97 and 98 redundent. To drive the decree-holder to a separate suit merely because obstruction is at the behest of the person claiming independent of the judgment-debtor or the person dispossessed is claiming right independent of the judgment-debtor would nullify the provisions of Rule 101 and, therefore, it is impossible to accede to the submission. In our judgment, broadly two questions fall for determination in an application under Rule 97 or Rule 99 of Order 21 of the Code of Civil Procedure and the questions are : (a) whether the decree-holder has title to the property, and (b) whether the obstructionist or the person who has dipossessed has better title or right to remain in possession. In the present case, the appellants had title to the property in dispute, while the respondent has none and the respondent has also no right to remain in possession as the respondent is not claiming any right to remain in possession except acquisition of title by adverse possession and which the respondent has failed to establish. In these circumstances, the contention of Shri Parikh that the executing Court should put back the respondent in possession and drive the appellants to file separate suit cannot be accepted. It is impossible to accept the contention that a rank trespasser must be put back in possession by the true owner, and then the true owner should file a separate suit, merely because trespasser claims right independent of judgment-debtor in application under Rule 99 of Order 21. 17. It is impossible to accept the contention that a rank trespasser must be put back in possession by the true owner, and then the true owner should file a separate suit, merely because trespasser claims right independent of judgment-debtor in application under Rule 99 of Order 21. 17. Shri chagla pointed out that initially the Chamber Summons taken out by the respondent was made absolute and the appellants were directed to file a separate suit but order dated October 6, 1978 passed by the learned Single Judge. The appellants carried an appeal being Appeal No. 213 of 1978 to the Division Bench of this Court and on December 28, 1978, the order of the learned Single Judge was set aside and the proceedings were remitted back to the Single Judge for disposal in accordance with Rule 101 of Order 21 of the Code of Civil Procedure. Shri Chagla pointed out that before passing of the order by the Division Bench, the appellants instituted Suit No. 1474 of 1978 for title and took out Notice of Motion for interim reliefs. The Motion was disposed of by Single Judge by order dated November 10, 1978 holding that all questions whatsoever between the appellants and the respondent should be decided in the Chamber Summons filed under Rule 99 of Order 21 of the Code of Civil Procedure and the suit was not maintainable. Shri Chagla pointed out that in view of the order passed by the appellate Court and the order of the Single Judge holding that the suit is not maintainable, it is not permissible for the respondent to re-agitate the identical question. We have examined the question independently of the orders passed earlier about the maintainability of the suit and, in our judgment, separate suit is not maintainable and the question of title was required to be adjudicated by the trial Judge. We are, therefore, not in agreement with the finding of the trial Judge that the remedy of the appellants was by way of a separate suit to evict the respondent because the respondent was claiming possession independently of the judgment-debtor. In our judgment, the trial Judge was in error in directing restoration of possession to the respondent and the order of the trial Judge is, therefore, required to be set aside. In our judgment, the trial Judge was in error in directing restoration of possession to the respondent and the order of the trial Judge is, therefore, required to be set aside. Shri Chagla submitted that the appellants could not recover possession of 10 gunthas of land and on this area the material of the respondent is stored. The learned Counsel submitted that the appellants could not take any steps for further execution in respect of 10 gunthas in view of the interim order passed by the trial Court restraining the appellants from taking any further steps in execution and enforcement of the decree. The trial Court passed the order on June 3, 1978 with the result that the appellants could not take out proceedings under Order 21, Rule 97 for recovery of possession of 10 gunthas of land. Shri Chagla submits that as the issue of title of respondent as well as right to possession even in respect of 10 gunthas has been exhaustively examined and determined by this Court, the appellants should be permitted to recover possession of 10 gunthas. The submission is correct and the appellants are entitled to recover area of 10 gunthas also in execution. 18. Accordingly, appeal is allowed and the impugned judgment dated September 8, 1989 is set aside and Chamber Summons No. 245 of 1978 taken out by the respondent is dismissed. The appellants are at liberty to proceed in execution and recover the balance area of 10 gunthas after permitting the respondents to take away material lying on the said land. The respondent shall pay the costs of the appellants throughout. At this stage, Shri Parikh orally applies for leave to file appeal to the Supreme Court. Prayer refused. Shri Parikh applies for continuation of interim relief granted in the Chamber Summons. Prayer refused. Appeal allowed. *****