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2008 DIGILAW 764 (CAL)

Sekhar Chandra Chakraborty v. Subhra Mukherjee

2008-07-31

GITA MITTAL

body2008
Judgment :- (1.) THERE are two suits between the parties. First of such suits being Title Suit no. 182 of 1988 was a suit for declaration of title and for permanent injunction. The said suit was filed by Pratapaditya Road South End Club (hereinafter referred to as "the club") and its office bearers against Subhra Mukherjee and others. The said suit was filed by the said club and its office bearers in the representative capacity with the permission of the learned Trial Judge under order 1 Rule 8 of the Code of Civil Procedure. At the time of institution of the said suit the plaintiff club was an unregistered club but subsequently during the pendency of the suit, the said club was registered under the Societies" registration Act. Thereafter the plaint was amended and the plaintiff club was shown as registered club in the Cause title of the plaint. The plaintiffs, in fact, claimed title in respect of the suit property by way of adverse possession. The plaintiffs claimed that the said club was established in the year 1935 and the suit land was all throughout in the uninterrupted, continuous and exclusive possession of the members of the plaintiff club openly and adversely. The plaintiffs further claimed that the members of the plaintiff club have been using the suit land as a playground throughout the year. The plaintiffs also organize various Pujas namely Sri Sri Durga Puja, Lakshmi Puja, Kali Puja, Saraswati puja in every year. Various activities are going on in the suit land for more than fifty years without any interference of anybody. The plaintiffs have been using the same adversely, openly and continuously for more than fifty years by asserting hostile title in the suit land. The plaintiffs, thus, claimed that the plaintiffs have acquired hostile title in the suit property by way of adverse possession. Accordingly, declaration of plaintiffs" title was sought for in the said suit. A decree for permanent injunction was also sought for against the defendant in the said suit. On transfer of the said suit from the original Court to the Court of the learned Civil Judge, Senior Division, 8th Court at Alipore, the said suit was renumbered as Title Suit No. 90 of 1999. (2.) SMT. Subhra Mukherjee and Ors. who were defendant nos. On transfer of the said suit from the original Court to the Court of the learned Civil Judge, Senior Division, 8th Court at Alipore, the said suit was renumbered as Title Suit No. 90 of 1999. (2.) SMT. Subhra Mukherjee and Ors. who were defendant nos. 2 to 5 in the aforesaid suit, filed a suit being Title Suit No. 47 of 1995 against Sri Sekhar chandra Chakraborty who was plaintiff no. 2 in the earlier suit. In the said suit the said Sekhar Chandra Chakraborty was impleaded as defendant therein both in his individual capacity and also in the alleged capacity of General Secretary to an unregistered club under the name and style of South End Club. The plaintiffs claimed declaration of their right, title and interest in the suit property and for a decree for permanent injunction for restraining the defendants from interfering with the plaintiffs" possession in the suit property. In the said suit the plaintiffs claimed that originally one Probhat Ranjan Bose was the owner of the suit property. Jugol Kishore Pal purchased the suit property from the said Probhat ranjan Bose. Thus, Jugol Kishore Pal became the owner of the suit property. The possession of the suit property was with Jugol Kishore Pal during his lifetime. He died intestate on 9th December, 1982 leaving behind him surviving his widow Sarashibala and three sons namely Nihar Kumar, Ashok Kumar and dilip Kumar and one daughter namely Mira Pal who inherited the suit property from Jugol Kishore Pal in equal share. Subsequently Ashok Kumar Pal died and his 1/5th share in the suit property was devolved upon his widow Maya Pal, his son Prabir Pal and his daughter Mausumi Pal in equal share. The heirs of Ashok kumar filed a partition suit being title suit no. 36 of 1984 in the Court of the assistant District Judge, 3rd Court, Howrah against Sarashibala Pal and other legal heirs of Jugol Kishore Pal. The said partition suit was decreed finally on 8th august, 1987 whereby the heirs of Ashok Kumar was given a demarcated portion of the said land measuring about one cottah. Rest part of the suit property measuring about two cottachs and eight square feet of land was given to sarashibala Pal, Dilip Kumar Pal and Mira Pal. The other co-sharers of Jugol kishore Pal did not get any allotment in the suit property. Rest part of the suit property measuring about two cottachs and eight square feet of land was given to sarashibala Pal, Dilip Kumar Pal and Mira Pal. The other co-sharers of Jugol kishore Pal did not get any allotment in the suit property. However, they were given a non-suit property in their allotment. Subsequently, by a registered deed of sale dated 29th July, 1994 Prabir Kumar Pal and others being the allottee of one cottah of land in the suit property sold their interest therein in favour of the plaintiffs herein and delivered possession of the suit property in their favour. By another registered deed of sale dated 29th July, 1994 the other allottees of two cottahs and eight chittaks of land sold their right, title and interest therein in favour of the plaintiffs and delivered possession thereof to the plaintiffs. (3.) SUBSEQUENTLY by a deed of amalgamation dated 30th August, 1994 both the aforesaid allotments were amalgamated and the plaintiffs, thus, became absolute owner of the suit property and they have been peacefully enjoying the same from the date of their purchase. The plaintiffs have also mutated their names in the municipal records of the Calcutta Municipal Corporation. The plaintiffs have also been paying rates and taxes of the said premises regularly since the time of their purchase. Since the defendant was trying to disturb the plaintiffs" peaceful possession of the suit property, the instant suit was filed. The defendants of the aforesaid suits contested the said suits by filing written statement raising similar claim as they raised in the plaint of the respective suits. Since common question of law and fact was involved in both the aforesaid suits, both the aforesaid suits were tried analogously and both the aforesaid suits were disposed of, by a common judgment passed on 31st May, 2000. The suit being Title Suit No. 47 of 1995 filed by Smt. Subhara Mukherjee and others was decreed on contest. The right, title and interest of the plaintiffs of the said suit in respect of the suit property were declared. The defendants in the said suit were permanently restrained from interfering with the peaceful possession of the plaintiffs in the suit property. The suit being Title Suit No. 90 of 1990 filed by the club and its office bearers was dismissed on contest with costs. The defendants in the said suit were permanently restrained from interfering with the peaceful possession of the plaintiffs in the suit property. The suit being Title Suit No. 90 of 1990 filed by the club and its office bearers was dismissed on contest with costs. (4.) BEING aggrieved by and dissatisfied with the aforesaid judgment and decrees, the said club and its office bearers preferred two appeals being Title appeal No. 199 of 2000 and Title Appeal No. 200 of 2000. Both the aforesaid appeals were also heard analogously and were dismissed on contest by a common judgment passed on 20th February, 2001. The instant Second Appeals are directed against the judgment and decrees passed by the learned First Appellate Court dismissing the aforesaid two title appeals filed by the club and its office bearers as aforesaid. Both the Courts below concurrently held that club and its office bearers have failed to prove their title in the suit property by way of adverse possession. On scrutiny of the evidence on record, both the Courts below held that the club and its office bearers have failed to prove their possession in the suit property. The Courts below found that the clubhouse is located on a different plot of land and the souvenirs were published by the said club from a different address. The club never made any attempt to mutate its name as owner in the municipal records. Even the club has failed to prove that the members of the club have been possessing the suit land continuously, adversely and openly claiming hostile title to the knowledge of the real owners thereof since 1935. In the absence of such proof of hostile animus, title cannot be acquired by adverse possession. (5.) BOTH the Courts below, thus, concurrently held that the club and its members have failed to prove acquisition of title in the suit property by adverse possession. Similarly both the Courts below concurrently held that by way of successive transfer the plaintiffs of Title Suit No. 47 of 1995 have acquired title in respect of the suit property. In fact, the title of the vendor of the plaintiffs of Title Suit No. 47 of 1995 was not denied by the club and its office bearers. Similarly both the Courts below concurrently held that by way of successive transfer the plaintiffs of Title Suit No. 47 of 1995 have acquired title in respect of the suit property. In fact, the title of the vendor of the plaintiffs of Title Suit No. 47 of 1995 was not denied by the club and its office bearers. The plaintiffs of the said suit have proved the registered sale deeds through which they have acquired title in respect of the suit property by way of its purchase from the erstwhile owner thereof. The plaintiffs of Title Suit No. 47 of 1995 have also proved that they have mutated their names as owner in the municipal records and have been possessing the same by paying rates and taxes to the municipal authority. Being aggrieved by the judgment and decrees passed by the learned 1st appellate Court in the aforesaid two appeals, the club and its office bearers have filed the instant Second Appeals before this Honble Court. Both the appeals were admitted for hearing by the Division Bench of this Honble Court under the provision of Order 41 Rule 11 of the Code of Civil Procedure. While admitting the said appeal the following two substantial questions of law were formulated by the Division Bench of this Honble Court:- 1. Whether in view of the admitted fact that the defendant was the secretary of an unregistered club, the Courts below erred in law by not holding that the suit was not maintainable against the defendant of an unregistered club without taking step under order 1 Rule 8 of the Code of Civil Procedure and without amending the plaint or not. 2. Whether the Courts below erred in law substantially by not holding that the defendant had acquired right, title and interest in the suit property by way of adverse possession or not. Subsequently in course of hearing of this appeal two more substantial questions of law were formulated by this Court. Those substantial questions of law are as follows:- 1.Whether the suit for eviction filed by the respondent nos. 1 to 4 against the appellant herein is barred by limitation or not. 2. Whether the judgment of the learned Courts below is vitiated for non-consideration of material evidence on record. Let me now consider the merit of the instant appeal with reference to the aforesaid substantial questions of law. (6.) MR. 1 to 4 against the appellant herein is barred by limitation or not. 2. Whether the judgment of the learned Courts below is vitiated for non-consideration of material evidence on record. Let me now consider the merit of the instant appeal with reference to the aforesaid substantial questions of law. (6.) MR. Dasgupta, learned Senior Counsel, appearing for the appellant submitted that both the Courts below erred in law by not answering the legal question raised by the appellants regarding maintainability of the suit against the unregistered club without obtaining any leave under Order 1 Rule 8 of the Code of Civil Procedure. By referring to the judgments of both the Courts below Mr. Dasgupta pointed out that though such a question regarding maintainability of the suit was raised by the appellant both before the learned Trial Judge as well as before the learned Appeal Court but the learned First Appellate Court practically avoided to decide the said question of law and the learned Trial judge, though discussed the said issue but with a wrong approach. Mr. Dasgupta submitted that the provision contained in Order 1 Rule 8 of the Code of civil Procedure is mandatory in nature and if no such leave is obtained in a representative suit, the suit cannot be maintained. Mr. Dasgupta further submitted that during the pendency of the aforesaid suits the club was registered under the Societies" Registration Act and after its registration, though the plaint of the clubs suit was amended to describe the said club as a registered club but still then no such amendment was carried out by the plaintiffs in Title Suit No. 47 of 1995. Even the instant appeal was filed by the appellant describing it as an unregistered club. According to Mr. Dasgupta the instant appeal being S. A. No. 314 which was filed by Sekhar Chandra Chakraborty as a General Secretary of an unregistered club is not maintainable in law. (7.) MR. Even the instant appeal was filed by the appellant describing it as an unregistered club. According to Mr. Dasgupta the instant appeal being S. A. No. 314 which was filed by Sekhar Chandra Chakraborty as a General Secretary of an unregistered club is not maintainable in law. (7.) MR. Dasgupta submitted that the fate of the suit in the representative capacity filed without obtaining leave under Order 1 Rule 8 of the Code of Civil procedure was considered by the Honble Supreme Court as well as by this hon’ble Court wherein it was uniformly held that the suit filed by an individual in the representative capacity without obtaining leave of the Court under Order 1 rule 8 of the Code of Civil Procedure and without necessary publication, is not maintainable. In support of such submission Mr. Dasgupta relied upon the following decisions:-1. In the case of Ram Chandra Sunda and Anr. V. Union of India " Vs- Union of India and Ors. reported in (1999)9 SCC 105 . 2. In the case of Kalyan Singh V. Smt. Chhoti and Ors. reported in (1990)1 SCC 266 . 3. In the case of the Calcutta Swimming Club and Anr. "vs-Deokinandan Bukna reported in (1993)1 CLJ 270. 4. In the case of Amulya Ratan Garai "vs-Secretary Sri Sri Ramkrishna Paramhansha Sevak Sangha and Anr. reported in (1989)1 CLJ 447 . Mr. Dasgupta further submitted that the plaintiffs of Title Suit No. 47 of 1995 have failed to prove their possession in the suit property. Apart from the husband of Subhra Mukherjee, none else has come forward to prove the plaintiffs" possession in the suit property. According to Mr. Dasgupta when the vendor of the plaintiffs of Title Suit No. 47 of 1995 are all parties to the suit, it was for them to prove their possession in the suit property for the pre-transfer period particularly when the club is asserting its title by way of adverse possession since 1935. Mr. Dasgupta submitted that, in fact, the vendors of the said plaintiff are the best witnesses to prove their possession in the suit property but since they have not come forward to prove their possession in the suit property, both the Courts below ought to have drawn adverse presumption against the said plaintiffs by following the principles as laid down in Section 114 (g) of the Evidence Act. (8.) MR. (8.) MR. Dasgupta, thus, submitted that the plaintiffs failed to prove their possession in the suit land within 12 years before filing the suit. Mr. Dasgupta pointed out that the P. W. 1 simply proved that the plaintiffs of the said suit mutated their names in the municipal records and started paying the rates and taxes thereof since the time of their purchase. Mr. Dasgupta further pointed out that the payment of rates and taxes by the vendor of the said plaintiffs have not been proved in the instant case. As such, the learned Courts below should have held that the plaintiffs have failed to prove their possession in the suit property within 12 years before filing of the suit and thus, the said suit should have been dismissed by both the Courts below on the ground of limitation. To substantiate the said submission, Mr. Dasgupta placed before this court the provisions contained in Sections 142 and 144 of the Limitation Act, 1908 as well as the provisions contained in Articles 64 and 65 of the Limitation act, 1963. According to Mr. Dasgupta the provisions contained in Articles 64 and 65 of the present Act were engrafted in the same line as it was provided in articles 142 and 144 of the Old Limitation Act. By placing the said provisions Mr. Dasgupta submitted that in terms of the said provision the burden of proof was on the plaintiffs to show that within 12 years before the date of institution of the suit they had title and possession in the suit land. Since the plaintiffs/respondents have failed to prove their possession in the suit land within 12 years before the date of filing of the suit, the suit being Title Suit No. 47 of 1995, according to Mr. Dasgupta, is barred by limitation. In support of such submission Mr. Dasgupta relied upon the following decisions of the Hon"ble supreme Court:-1. In the case of Ambika Prasad Thakur V. Ram Iqbal Rai reported in AIR 1966 SC 605 . 2. In the case of Rajendra Singh and Ors. V. Shanta Singh and Ors. reported in (1973)2 SCC 705 . 3. In the case of P. T. Munichikkanna Reddy and Ors. V. Revamma and Ors. reported in (2007)6 SCC 59 . Relying upon the aforesaid decisions Mr. 2. In the case of Rajendra Singh and Ors. V. Shanta Singh and Ors. reported in (1973)2 SCC 705 . 3. In the case of P. T. Munichikkanna Reddy and Ors. V. Revamma and Ors. reported in (2007)6 SCC 59 . Relying upon the aforesaid decisions Mr. Dasgupta submitted that the learned Courts below erred in declaring the title of the plaintiffs in Title Suit no. 47 of 1995 though such suit is not maintainable on the ground of bar of limitation. (9.) MR. Dasgupta, ultimately submitted that if the Title Suit No. 47 of 1995 is dismissed on the ground of limitation, no relief can be granted to the plaintiffs/respondents even in the clubs suit, primarily for two reasons, i. e. firstly on the principle of res-judicata and secondly for the reason that the plaintiffs of T. S. No. 47 of 1995, have not included any counter claim in the clubs suit. In support of his first contention regarding bar of res-judicata, Mr, dasgupta relied upon a decision of the Honble Supreme Court in the case of sheodam Singh V. Darya Kumar reported in AIR 1966 SC 1332 . Mr. Roy Chowdhury, learned Senior Counsel, appearing for the respondents in the aforesaid appeals submitted by referring to the cause title of his clients suit that Sekhar Chandra Chakraborty was impleaded as defendant therein both in his individual capacity as also in the alleged capacity of the general Secretary of an unregistered club namely South End Club. Mr. Roy chowdhury, thus, submitted that since relief was claimed against the said chakraborty both in his individual capacity and also in the capacity of the general Secretary of the unregistered club, the suit, even if it is held as not maintainable against the said defendant so far as the club and its members are concerned for want of leave under Order 1 Rule 8 of the Civil Procedure Code but still then such suit is very much maintainable against him in his individual capacity. As such, the said suit cannot be held as not maintainable as a whole. (10.) MR. As such, the said suit cannot be held as not maintainable as a whole. (10.) MR. Roy Chowdhury further submitted that even in the absence of any leave under Order 1 Rule 8 of the Code of Civil Procedure, it cannot be held that the suit is not maintainable against the said unregistered club particularly when the said defendant contested the said suit diligently for the interest of all the members of the said club and there is no collusion between the parties in the instant suit. By referring to a decision of the Honble Supreme Court in the case of Singhai Lal Chand Jain V. Rashtriya Swayam Sewak Sangha, Panna and Ors. reported in AIR 1996 SC 1211 Mr. Roy Chowdhury submitted that it was held by the Honble Supreme Court in the said decision in clear terms that in view of explanation VI to Section 11 of the Civil Procedure Code, decree passed in such a suit of representative capacity cannot be held to be a nullity for mere want of permission under Order 1 Rule 8 of the Code of Civil Procedure when the office bearer of an unregistered body contested the suit diligently and there is no collusion between the parties in the suit. (11.) MR. Roy Chowdhury, thus, submitted that if the said principle is applied in the instant case it cannot be held that the Title Suit No. 47 of 1995 is not maintainable for grant of leave under Order 1 Rule 8 of the Code of Civil procedure as the Secretary of the said club contested the said suit tooth and nail all throughout to protect the interest of the members of the club and there is no collusion between the parties. Mr. Roy Chowdhury further submitted that even assuming that his clients suit being Title Suit No. 47 of 1995 is not maintainable as a whole for want of leave under Order 1 Rule 8 of the Code of Civil Procedure and also for not amending the Cause title of the plaint to describe the club as a registered one after its registration was completed during the pendency of the suit but still then since the other suit which was filed by the appellant herein is a competent suit, the rights of the parties can be very well adjudicated therein. (12.) MR. (12.) MR. Roy Chowdhury contended that both the Courts below rightly held that the appellants have failed to prove that they have acquired title by adverse possession in the suit property. Mr. Roy Chowdhury further contended that when the appellants" claim for title by way of adverse possession cannot be supported on the materials on record, this Court can very well declare the title of the plaintiffs in the suit property in the appellants" suit as his clients asserted and proved their title and possession in respect of the suit property by way of defence in the appellants" suit. Mr. Roy Chowdhury further submitted that his clients did not file the said suit for recovery of possession. The said suit was filed by his client for declaration of title and for injunction contending therein that they have both title and possession in the property. According to Mr. Roy Chowdhury in such a suit articles 64 and 65 of the Limitation Act have no application. As such, the decisions which were cited by Mr. Dasgupta to support his contention that the respondents suit is barred by limitation, has no substance. (13.) MR. Roy Chowdhury further submits that it is not correct to submit that articles 64 and 65 of the Limitation Act were engrafted in the present Act in the same line as those were engrafted in Articles 142 and 144 of the Old Limitation act. By referring to a decision of the Honble Supreme Court in Saroop Singh " vs-Banto and Ors. reported in (2005)8 SCC 330 Mr. Roy Chowdhury submitted that in terms of Articles 142 and 144 of the Limitation Act, 1908, it was imperative upon the plaintiff not only to prove his title but also to prove his possession within 12 years, preceeding the date of institution of the suit but a change in legal position has been effected in view of Articles 64 and 65 of the limitation Act, 1963. It was further held therein that in terms of Article 65 of the limitation Act the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date when defendants" possession become adverse. As such, under the present Act once a party proves his title, the other party has to prove claim of title by adverse possession. As such, under the present Act once a party proves his title, the other party has to prove claim of title by adverse possession. Thus, in terms of Articles 142 and 144 of the Limitation Act, 1908 the burden of proof was on the plaintiff to show within 12 years before the date of institution of the suit, he had title and possession in the suit land; whereas in terms of Articles 64 and 65 of the Limitation Act, the legal position has underwent complete change so far as the onus is concerned, as once a party proves his title, the onus of proof would be on the other party to prove his claim for title by adverse possession. (14.) MR. Roy Chowdhury also relied upon various other decisions of the Hon"ble supreme Court as well as of this Honble Court to support his aforesaid submission, but since the view of the Honble Supreme Court as well as by this hon"ble Court was uniform in all these decisions, this Court does not feel any necessity for referring to these citations herein. Mr. Roy Chowdhury ultimately submitted that since the club has failed to prove its possession over the suit property by bringing reliable and cogent evidence, there will be no difficulty in declaring the title of the respondents in the suit property as their vendors" title have not been disputed and the purchase of the vendors" title by the respondents has also been proved in the instant case. Mr. Roy Chowdhury, thus, submitted that in the facts of the instant case no interference is necessary by this Honble Court under Section 100 of the Civil procedure Code. Let me now consider as to whether the learned Courts below were justified in passing a decree in favour of the respondents in their suit and/or in dismissing the suit of the appellants in the facts of the instant case. Let me now consider as to whether the learned Courts below were justified in passing a decree in favour of the respondents in their suit and/or in dismissing the suit of the appellants in the facts of the instant case. Re: S. A. No. 314 of 2001 since the submission of the respective parties in regard to the provision of sections 64 and 65 of the Limitation Act, 1963 and the provision contained in sections 142 and 144 of the Old Limitation Act have no relevance in the facts of the instant case as the present suit is not a suit for recovery of possession, but a suit for declaration and injunction, this Court does not think it necessary to discuss the impact of the submission of the leaned Counsel of the respective parties with regard to the said provisions of law, in great details, but I want to mention here that the effect of the change of law of limitation under Article 64 and Article 65 of the Limitation Act of 1963 in contrast to Article 142 and Article 144 of the Limitation Act, was pointed out in the decision of the Honble Supreme court in the case of Saroop Singh "vs-Banto and Ors. (supra). As such I cannot agree with Mr. Dasgupta that the provision of Article 142 and Article 144 of the old Limitation Act are similar to the provision of Articles 64 and 65 of the present act. (15.) THIS Court, however, does not find much substance in the submission of Mr. Roy Chowdhury to the effect that since the appellants in their suit claimed reliefs, against the defendant both in his individual capacity as also in the capacity of the Secretary of an unregistered club, the suit cannot be held as not maintainable as a whole. In my view when the defendant was impleaded in his individual capacity as well as in the capacity of Secretary of an unregistered club, he was really impleaded as such as an individual member of the club and also as secretary of the said club. It is nobodys case that the said defendant ever claimed that he acquired title in the suit property individually by way of adverse possession. Whatever claim he raised in the suit, was a claim on behalf of the club and/or its members. It is nobodys case that the said defendant ever claimed that he acquired title in the suit property individually by way of adverse possession. Whatever claim he raised in the suit, was a claim on behalf of the club and/or its members. As such, merely because of the fact that he was described both in his individual capacity as well as in the capacity of the secretary of the club, it cannot be held that suit can be maintained partially so far as the relief against the defendant individually is concerned and the rest of the relief against the club is not maintainable. After going through the decisions cited by Mr. Dasgupta, this Court has no hesitation to hold that the provision of Order 1 Rule 8 of the Code of Civil procedure is mandatory. As such, if a suit is brought in the representative capacity, the party filing such suit must obtain leave under Order 1 Rule 8 of the code of Civil Procedure for filing such suit. In the absence of such leave and also in the absence of publication of notice as per the provision contained in Order 1 rule 8 of the Code of Civil Procedure, suit filed by the plaintiffs in the representative capacity cannot be maintained. (16.) BUT there are some exceptions which were pointed out by the Hon"ble supreme Court in the case of Singhai Lal Chand Jain (supra) wherein it was held that even in the absence of such leave, decree passed in such a suit cannot be held to be nullity when such decree was passed against a society represented through its office bearer who contested the suit diligently and when there was no collusion between the parties. On careful perusal of the said decision, this Court finds that "the Sangha" was an unregistered body and the suit was filed against the said sangha represented by its office bearers and some of its members, for its eviction without obtaining leave under Order 1 Rule 8 of the Code of Civil procedure. The said suit was seriously contested by the said representatives of the sangha upto the Honble Supreme Court but "the Sangha" was not successful in avoiding the decree for eviction passed against it at any stage upto the Honble Supreme Court. The said suit was seriously contested by the said representatives of the sangha upto the Honble Supreme Court but "the Sangha" was not successful in avoiding the decree for eviction passed against it at any stage upto the Honble Supreme Court. But subsequently at the execution stage, "the sangha" challenged the executibility of the said decree on the ground that the decree passed against an unregistered body, without obtaining leave under order 1 Rule 8 of the Code of Civil Procedure is a nullity. Though such contention of "the Sangha" was accepted by the Executing Court and was also affirmed by the high Court, but the Honble Supreme Court, ultimately held that since "the sangha" was duly represented by its office bearers in the suit and further since "the office bearers" of the Sangha contested the said suit diligently all throughout and there was no collusion between the parties, the decree of eviction is binding upon all the members of "the Sangha" and in view of the combined effect of the provision contained in Order 1 Rule 8 (b) read with the explanation VI Section 11 of the Code of Civil Procedure, they cannot avoid or resist the execution of such decree on the ground of its nullity for want of leave under Order 1 Rule 8 of the code of Civil Procedure. (17.) IN my view, the principle laid down in the said decision is squarely applicable in the facts of the instant case, as "the club" was duly represented by its office bearers who contested the suit all throughout to protect the interest of all its members and there was no collusion between the parties in the suit. The secretary of the club never made any attempt to establish his personal right in contradiction with the interest of the club and/or its members. He always made his best effort to promote the clubs interest and the other members of the club also jointed him by giving evidences in the suit to support the Secretary. As such, in my view, suit cannot be dismissed for want of leave under Order 1 Rule 8 of the Code of Civil Procedure. This Court, thus, holds that the present suit of Subhra Banerjee and Ors. being T. S. No. 47 of 1995 is very much maintainable in law. As such, in my view, suit cannot be dismissed for want of leave under Order 1 Rule 8 of the Code of Civil Procedure. This Court, thus, holds that the present suit of Subhra Banerjee and Ors. being T. S. No. 47 of 1995 is very much maintainable in law. That apart, when the said club has already been registered during the pendency of the suit, and the plaint of the clubs suit was amended accordingly and when the said suit is being heard analogously with the respondents" suit, the suit filed by the respondent cannot be dismissed simply because of the reason that the respondents failed to amend the plaint of their suit to describe the club as a registered one, particularly when all the parties participated in the trial of the suit with clear knowledge of the Constitution of the club. That apart, since such a plea was not taken by the respondent at any stage of the trial of the suit and/or appeal in the Courts below earlier, this Court, does not find any reason to dismiss the respondents suit for such formal defect which has nothing to do with the merit of the suit. (18.) THIS Court, thus, holds that the learned Courts below did not commit any illegality in granting relief to the respondents in their suit being T. S. No. 47 of 1995. The decree passed in T. S. No. 47 of 1995, thus, stands affirmed and the instant appeal being S. A. No. 314 of 2001, stands dismissed on contest. Re: S. A. No. 315 of 2001 let me now consider the fate of the appellants" suit. The appellants have claimed title in the suit property by adverse possession. The appellants claimed that they are in possession of the suit plot continuously since 1935. To support such claim for possession, the plaintiffs/appellants have filed some souvenirs published by the club from time to time since 1935. Apart from those documents the appellants did not produce any other material evidence to show their possession in the suit property. Even the D. W. 1 said that he cannot say whether the performance of the Pujas and/or the other activities of the club were performed by the club on the suit land or not. Admittedly the clubhouse was constructed on a different plot. The souvenirs were all issued from a different address. Even the D. W. 1 said that he cannot say whether the performance of the Pujas and/or the other activities of the club were performed by the club on the suit land or not. Admittedly the clubhouse was constructed on a different plot. The souvenirs were all issued from a different address. The appellants have failed to produce their membership register to show the existence of the said club since 1935. Appellants have not taken any step to assert hostile title in the suit property to the knowledge of the real owner. Even the D. W. 1 could not name the real owner of the suit property. The appellants have not taken any step to mutate its name as owner in the municipal records so long. If all these facts are taken together, the cumulative effect thereof will undoubtedly lead this Court to hold that the appellants have failed to prove their possession in respect of the suit property. (19.) EVEN after the admission of the instant appeal, following arrangements were made by this Honble Court for performing various Pujas by the club on the said land:-1. A Special Officer was appointed by this Honble Court to receive possession of the suit property from the respondent herein. 2. After receiving possession of the land from the respondent, the learned Special Officer will handover possession thereof to the club for performing Pujas on the suit land. 3. Immediately after the performance of Puja is over, the appellants were required to restore the possession of the suit land to the special Officer who in tern will hand over the possession thereof to the respondents. Working out such a modality for performance of Puja by the club On the suit property, no doubt proves that the suit property is in the possession of the respondents particularly when the appellants accepted the said arrangement without any objection. As such, this Court cannot hold that the appellants were in possession in the suit property as claimed by them. (20.) THE title of the vendor of the respondents is not disputed in the appellants" suit. The respondents have stated and proved that they have purchased the suit property from the admitted erstwhile owner thereof. The respondents have also proved that they have mutated their names in the suit property as owners thereof. (20.) THE title of the vendor of the respondents is not disputed in the appellants" suit. The respondents have stated and proved that they have purchased the suit property from the admitted erstwhile owner thereof. The respondents have also proved that they have mutated their names in the suit property as owners thereof. The respondents have also proved that they have been paying rates and taxes in respect of the suit property. As such, this Court has no hesitation to hold that the respondents are owners of the said premises and they have also succeeded in proving their possession in respect of the suit premises. Under such circumstances, the relief which the appellants claimed in their suit cannot be granted as the appellants have failed to prove their claim for acquisition of title in the suit property by adverse possession. This Court thus, holds that the Courts below did not commit any illegality either in dismissing the appellants" suit or by decreeing the respondents" suit for the reasons as aforesaid. The judgment and decree passed in the Suit No. 90 of 1999, thus, stands affirmed. The appeal being S. A. No. 315 of 2001, stands dismissed on contest. Let the Lower Court records relating to the above appeals be sent down to the Court below immediately. Urgent xerox certified copy of this judgment, if applied for, be supplied expeditiously after complying with formalities.