JUDGMENT : Heard Mr. B. Banerjee, learned counsel appearing for the appellants as well as Mr. P. Dutta, learned counsel appearing for the respondent No.1 and Mr. D. Deb, learned counsel appearing for the respondents No.2 to 5. Despite due notice, the remaining respondents did not ensure their representation and when the matter was taken up for hearing, there was no representation on their behalf. 2. The undisputed fact which would provide the perspective fact for this appeal is that the respondent No.1, the plaintiff in the suit, filed the suit being T.S. 23 of 2010 in the court of the Civil Judge, Sr. Division, South Tripura, Udaipur, as it then was, against the respondents No.2 to 8, the defendants in the suit. In the said suit, Sunil Chandra Das, the predecessor of the appellants was the proforma defendant. The said suit was filed for declaration of right, title and interest over the Schedule-A land and for recovery of possession of the land described in the Schedules-B & C land of the plant. The plaintiff, the respondent No.1 herein, did not assert any claim against Sunil Chandra Das since deceased, the proforma defendant and in that context, Sunil Chandra Das, the proforma defendant did not contest the suit. Following the due process, the suit is decreed directing recovery of possession of Schedules-B and C land on demarcating the same by Survey Commissioner. The defendants and their agents were perpetually restrained from entering into the suit land after the plaintiff got possession of the suit land in the process. The plaintiff in order to execute the decree set the executing proceeding being Execution (T) 21 of 2011 on motion in the court of the Civil Judge, Sr. Division, South Tripura, Udaipur. Immediately, in the wake of the execution, the appellants herein, found that the land under their possession pertaining to Khatian No.667/1, R.S. Plots No.551, 552 and 567 total measuring about 0.450 acres has been taken into possession by the Bailiff of the court and the same was handed over to the plaintiff, the respondent No.1 herein. They immediately filed an application under Order XXI Rules 99, 100 and 101 read with Section 151 of the CPC for setting aside the execution which was carried out in terms of the decree dated 20.12.2010 delivered in T.S. 23 of 2010 being the proceeding No.Exe(T) 21 of 2011. They immediately filed an application under Order XXI Rules 99, 100 and 101 read with Section 151 of the CPC for setting aside the execution which was carried out in terms of the decree dated 20.12.2010 delivered in T.S. 23 of 2010 being the proceeding No.Exe(T) 21 of 2011. The execution was complete on 24.02.2012. The land beyond the decree has been shown in the schedule with the said application which was registered as Civil Misc. 39 of 2012. On the face of the serious objection raised by the respondent No.1, by the impugned order dated 11.08.2014 delivered in Civil Misc. Appl. 06 of 2013, the first appellate court has observed that:- “From the perusal of the case records it is found that decreetal land in case No. T.S. 23 of 2010 was under Khatian No.79, R.S. Plot No.365, 661, 677, 553, 559, 560, 561, 562. Another Khatian No.415/2, R.S. Plot Nos.365, 553, 559, 560 , 561 and the 'C' Schedule land are under the same Khatian, R.S. Plot Nos.661, 677 562. There is no similarity between those dags and dag Nos.551, 552, 567, as shown in Exbt.2 series. Khatian No.667/1 has no resemblance with the suit land khatian. The Court below after examining all these aspects rightly came to the decision that those lands have no resemblance with the suit land. It has also rightly decided by the court below that the unregistered deed cannot confer any right, title and interest as it is not a valid transfer. Learned Civil Judge (Sr. Division) also discussed the oral evidence and came to a right findings that the suit land has no resemblance or similarity with the land described by the petitioners from which they are alleged to have been dispossessed. Within one month of the dispossession, no petition was filed as a 3rd party. The Survey Commissioner's report and bailiff's report do not support the case of the petitioner. So, Learned Civil Judge (Sr. Division) rightly rejected the prayer under Order 21 Rule 99 of the C.P.C.” 3. Being aggrieved by the said order of the first appellate court, the present appeal under Section 100 of the C.P.C has been filed. The Survey Commissioner's report and bailiff's report do not support the case of the petitioner. So, Learned Civil Judge (Sr. Division) rightly rejected the prayer under Order 21 Rule 99 of the C.P.C.” 3. Being aggrieved by the said order of the first appellate court, the present appeal under Section 100 of the C.P.C has been filed. At the time of admitting the appeal, the following substantial questions of law were formulated:- “(i) Whether it is the title that has to be proved for seeking restoration or it is the possession that has to be proved for purpose of showing dispossession to be within the ambit of Order XXI, Rule 100 of the CPC? (ii) Whether the finding as returned by the executing court that since the possession was acquired by the appellants by way of unregistered deed the provisions of Order XXI, Rule 100 of the CPC cannot be applied even if the appellants are dispossessed during the execution, is sustainable or not?” 4. For purpose of record, it may be mentioned that by the order dated 26.09.2013, the executing court took the similar view as taken by the first appellate court. A reference may be made to that finding. The executing court has observed that the application was barred by limitation as the application was not filed within the period of 30 days as required under Article 128 of the schedule of the Limitation Act, 1963. It has been further observed that on perusal of the Schedule-A land, Schedule-B land and Schedule-C land, the decretal land of Title Suit 23 of 2010, the land concerned with the present petition, i.e. R.S. Plot Nos.551, 552 and 567 are not found. The land as mentioned in the present petition, i.e., R.S. Plot Nos.551, 552 and 567 has got no connection with the decretal land of Title Suit 23 of 2010. It has been also observed that ‘on perusal of the Exhibit-3 series, it reveals that Khatian Nos.667/1-2 are in the name of the Adhir Chandra Tripura. The suit Plots of the present petition, i.e., R.S. Plot Nos.551, 552 and 567 are found in Khatian No.567/1. It has been also observed that ‘on perusal of the Exhibit-3 series, it reveals that Khatian Nos.667/1-2 are in the name of the Adhir Chandra Tripura. The suit Plots of the present petition, i.e., R.S. Plot Nos.551, 552 and 567 are found in Khatian No.567/1. On perusal of the Column No.16 of the Khatian No.567/1, it reveals that land pertaining to Plot Nos.551 and 552 was transferred to the Sunil Chandra Das, the predecessor-in-interest of the petitioners of this case in contravention of the Section 14 and 187 of the T.L.R. & L.R. Act.’ Finally, the executing court has observed that after analysing the evidence both documentary and oral, the petitioners, the appellants herein, have failed to prove that they were dispossessed from the land as mentioned in the schedule. 5. In the appeal, the first appellate court has affirmed the said judgment. The first appellate court however did not take into consideration the question of limitation as raised by the executing court while deciding the petition filed by the appellants. Article 128 of the schedule of the Limitation Act, 1963 provides as under:- Description of application Period of Limitation Time from which period begins to run 128. For possession by one dispossessed of immovable property and disputing the right of the decree-holder or purchaser at a sale in execution of a decree Thirty days The date of dispossession. Clearly this is not a case of auction of the decreetal land and as such, this Article 128 has no relevance as referred by the executing court. 6. According to Mr. Banerjee, learned counsel appearing for the appellants, since the execution has been admittedly carried out by mistake there is no claim over the land as shown in the schedule of the application. Hence, the provisions of Section 17 of the Limitation Act would apply and as such, it will run from the date of knowledge not from the date of execution. Thus, the period of limitation would be one year and the application has been filed within one year. Mr. Banerjee, learned counsel appearing for the appellants has further submitted that the judgment of affirmance which is under challenge has failed to take the basic facts and as such, landed him a wrong decision. Mr. Thus, the period of limitation would be one year and the application has been filed within one year. Mr. Banerjee, learned counsel appearing for the appellants has further submitted that the judgment of affirmance which is under challenge has failed to take the basic facts and as such, landed him a wrong decision. Mr. Banerjee, learned counsel appearing for the appellants has firmly asserted that the decree holder [DH] did not have any claim over the land as shown in the schedule of the said application but what they have denied is that there was no such dispossession as claimed by the appellants herein. 7. Mr. P. Datta, learned counsel appearing for the respondent No.1 has submitted that the predecessor of the appellants were party in the suit and as such, they had knowledge about the description of the disputed land of the suit. Moreover, it is the instruction that the appellants were present when the execution was being carried out by the Survey Commissioner and the Bailiff of the court. Therefore, the story is entirely cooked up for malicious purpose and to do the harm to the interest of the respondent No.1 by entangling him in the litigation after litigation. This court, therefore, should not permit such mischievous design to succeed. When it is an admitted position that the predecessor of the appellants was the party in the suit, for that reason in particular, the application under Order XXI Rules 99,100 and 101 of the CPC would be maintainable. Mr. Banerjee, learned counsel has submitted that such application is maintainable and such application is to be adjudicated in terms of Rules 104 & 105 of Order XXI of the CPC. Rule 99 of Order XXI of the CPC provides as under:- “(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 or, where such property has been sold in execution of a 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.” According to Mr. Banerjee, learned counsel, the predecessor of the appellants cannot be the judgment-debtor because there was no relief against him in the suit. (2) Where any such application is made, the court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.” According to Mr. Banerjee, learned counsel, the predecessor of the appellants cannot be the judgment-debtor because there was no relief against him in the suit. Moreover, the application has been fundamentally filed under Rule 100 of Order XXI of the CPC and there is no embargo to adjudicate the said controversy under Rule 100 of the CPC. According to Mr. Banerjee, learned counsel the entire thing would have been transparently clear that if a Survey Commissioner was appointed to find out whether during execution of the decree the land as described in the schedule of the application was integrated in the decreetal land or not, but the executing court without taking such attempt has come to the conclusion on two aspects. First of all, whether the appellants were in possession legally or lawfully or unlawfully was never the subject matter of the suit and they had not been given any opportunity on that aspect of the matter and as such, on a glance of the documents [Exbt.3 series] the executing court in exercise of the power under Rules 100 to 105 of Order XXI of the CPC cannot come to a conclusion that the appellants were possessing the said land in contravention of the provisions of Sections 14 & 187 of the TLR & LR Act. This observation is wholly illegal inasmuch as no adjudication had taken place and the executing court had no jurisdiction to decide without following the proper procedure of law. 8. Be that as it may, as Mr. Dutta, learned counsel appearing for the respondent No.1 has submitted that no land whatsoever has been integrated in the decreetal land as claimed by the present appellants. Thus, the first and final issue that emerges is to decide the preliminary issue and whether further proceeding is required to be followed or not on determination of dispossession at the time of executing the decree. 9. Having situated thus, this court is of the view that the impugned order dated 11.08.2014 delivered in Civil Misc. Appl. No.06 of 2013 by the District Judge, South Tripura, Udaipur, as then he was, is liable to be set aside for affirmance of the order dated 26.09.2013 delivered in Civil Misc.39 of 2012. 9. Having situated thus, this court is of the view that the impugned order dated 11.08.2014 delivered in Civil Misc. Appl. No.06 of 2013 by the District Judge, South Tripura, Udaipur, as then he was, is liable to be set aside for affirmance of the order dated 26.09.2013 delivered in Civil Misc.39 of 2012. Accordingly, the same is set aside along with the order dated 26.09.2013 as stated. This matter is remanded to the Civil Judge, Sr. Division, Gomati Tripura, Udaipur. It is directed that the executing court [the Civil Judge, Sr. Division, Gomati Tripura, Udaipur] shall appoint the Survey Commissioner to determine whether the land described in the schedules below or any part thereof has been integrated with the land as shown in the Schedules-B & C of the suit, which is the part of the decreetal land directed to be recovered from the judgment debtor. Schedule of the land as described in the application under Order XXI Rules 99,100 and 101 of the CPC read with Section 151 of the CPC being Civil Misc.39 of 2012. Land measuring 0.450 acres recorded in Khatian No.667/1 of mouza Manubazar, Tehshil- Manubazar, District- South Tripura and surveyed in the following plots with classification and area noted against each plot: Khatian No. R.S. Plot No. Classification of land Area in acre 667/1 551 Doba 0.30 552 Lunga 0.340 567 Doba 0.080 Total 0.450 Schedule ‘B’ Land in Title Suit No.23 of 2010 (Land which were previously under direct possession of plaintiff, from where the plaintiff was subsequently forcibly dispossessed by defendants) Sub-Division – Sabroom, Tehsahil Kachari, Mouza-Manubazar R.S. Khatian No. C.S. Plot No. R.S. Plot No. Class of lands Measurement 79 364 365 Tilla 0.20 acres 415/2 365(P)/4042 553 Layek/patit 0.03 acres 364/4043 559 Viti/tilla 0.16 acres 365(P)/4042 560 do 0.70 acres 365(P)/4042 561 Nal 0.05 acres Total 1.14 acres Schedule ‘C’ Land in Title Suit No.23 of 2010 (Lands under permissive occupation of defendants for which license/permission was cancelled by the plaintiff) Sub-Division–Sabroom, Tehsahil Kachari, Mouza-Manubazar R.S. Khatian No. C.S. Plot No. R.S. Plot No. Class of lands Measurement 79 365(P) 661 Viti/tilla 0.06 acre 365(P) 677 Viti 0.04 acre 415/2 365(P)/4042 562 Nal 0.16 acre Total 1.14 acres 10. The Survey Commissioner shall first identify the land of Schedules-B & C as described above having due regards to the land described in the Schedule-A of the suit which his reproduced below:- Schedule ‘A’ Lands in Title Suit No.23 of 2010 (Entire suit properties) Sub-Division–Sabroom, Tehsahil Kachari, Mouza-Manubazar R.S. Khatian No. C.S. Plot No. R.S. Plot No. Class of lands Measurement 79 364 365 Tilla 0.20 acres 365(P) 661 Viti/Tilla 0.06 acres 365(P)/4043 677 do 0.04 acres Total 0.30 acres 415/2 365(P)/4042 553 Layek/patit (lunga) 0.03 acres 364/4043 559 Viti/tilla 0.16 acres 365(P)/4042 560 do 0.70 acres 365(P)/4042 561 Nal 0.05 acres 365(P)/4042 562 do 0.06 acres Total 1.14 acres Grand total (0.30 +1.00)= 1.30 acres 11. Thereafter, the Survey Commissioner shall identify the land described in the Schedule of Civil Misc.39 of 2012 as extracted above. Having identified those lands differently, the Survey Commissioner shall ascertain whether any part of the land in the Schedule of Civil Misc.39 of 2012 has been integrated with the Schedule-A land qua Schedules-B & C land. If it is so found, he shall identify the land or the part of the land which has been integrated with the land which was handed over during the execution proceeding being Exe.(T) 21 of 2011. For this purpose, the relevant part of the records of the execution proceeding being Exe.(T) 21 of 2011 be handed over to the Survey Commissioner. The Survey Commissioner shall answer to the following question with supportive document including the map etc.: Whether any part of the land in the Schedule of Civil Misc.39 of 2012 during the execution has been integrated with the Schedule A land in the course of recovery of Schedules-B & C land. If any part of the land in the Schedule of Civil Misc.39 of 2012 is found to have integrated, that part should be separately shown and its measurement and the description shall be clearly provided with a hand sketch map so that the court can pass the appropriate order on the basis of the said description and map. If any part of the land in the Schedule of Civil Misc.39 of 2012 is found to have integrated, that part should be separately shown and its measurement and the description shall be clearly provided with a hand sketch map so that the court can pass the appropriate order on the basis of the said description and map. But if no part of the land is integrated with the schedule of land as described in the schedule of Civil Misc.39 of 2012 at the time of execution, the Survey Commissioner shall clearly mention that ‘no part of the land has been integrated with the Schedule-A land or with the Schedule-B & C land which are the integral part of the Schedule-A land during the said execution process’. Having received the report from the Survey Commissioner, the executing court would decide whether he would further proceed in terms of the procedure as laid down in Rules 101 to 105 of Order XXI of the CPC or not. Only in the event, if it is found that some part of the land of the schedule of the said Civil Misc.39 of 2012 has been integrated with the Schedule-A land or with Schedules-B & C land [the decreetal land] at the time of execution, the said procedure for recovery of the integrated land shall strictly and duly be observed. 12. Before parting with the records, it is clearly observed that the whole exercise is to be confined to disintegrate the land, if any, which has been integrated wrongfully at the time of execution. Adjudication beyond that would not be permissible. The land should be handed over to the possessor who was holding the possession on the date of execution. Beyond that, no point or the issue would be required to be adjudicated or decided by the said execution court. The trial court is given liberty to ask the Director of Land Records and Settlement to select one of the expert Surveyors from the department for this purpose. Such Surveyor as would be recommended be appointed beyond the panel of Surveyors. In terms of the above, this appeal stands allowed to the extent as indicated above. Prepare the decree accordingly. Send down the LCRs thereafter.