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2019 DIGILAW 1346 (GAU)

Sumit Deb v. Anjalee Das

2019-12-10

KALYAN RAI SURANA

body2019
JUDGMENT : Kalyan Rai Surana, J. Heard Mr. N. Dhar, learned counsel for the appellants as well as Mr. D. Mozumdar, learned Senior counsel assisted by Mr. S. Biswas, learned counsel for the respondent. 2. This appeal was admitted for hearing on the following substantial questions of law by order dated 29.01.2014:- 1. Whether the courts below committed error by failing to consider the applicability of provisions prescribed by order 21 Rule 104 CPC in deciding Misc. Appeal No.16/2007 in Misc. Case No.99/2006 (arising out of Title Execution Case No.18/2003)? 2. Any other questions of law that may be raised at the time of hearing? 3. The appellants herein are the petitioners in a petition filed under section 47 CPC read with Rule 99, 100 and 101 of the Order XXI CPC in connection with T.Ex.18/2003, which was registered as Misc. Case No.99/2006. The said execution case was filed by the respondents No.1, 2 and 3 to enforce and execute the judgment and decree dated 29.06.2002 passed by the learned Civil Judge (Junior Division) No.1, Karimganj in T.S. No.44/1999 which was instituted against Sukhamoy Deb. The said suit was for recovery of khas possession of the said house by evicting him and for recovery of arrear rent for the suit house from the month of Magh 1402 B.S. to Magh 1405 B.S. along with pendente lite interest @ 12.5% per annum till realization. The suit houses are (1) house measuring 20.5 ft from the east to west and 10.5 ft from North to South with pucca wall and floor, CI sheet roofing on the west of said house, and (2) a house measuring 7ft X 9ft with tin roofs and bamboo wall, pucca floor. 4. From the annexures to the present memo of appeal, it appears that on 21.08.2006, the appellant herein had filed T.S. 338/2006 for declaration of title, for confirmation of possession and for permanent injunction which included prayer for declaration of their land holder's right in respect of land described in Schedule I of the said plaint and for declaration of their maliki right over the suit house described in Schedule II as well as for setting aside the decree dated 29.06.2002 passed by the learned Civil Judge, (Junior Division) No.1, Karimganj in T.S. No.44/1999 and for other reliefs. 5. As per the LCR, the said Misc. 5. As per the LCR, the said Misc. Case No.99/2006 under section 47 read with Order XXI Rule 99, 100, 101 CPC was filed on 22.08.2006, inter-alia, projecting that on 15.08.2006, the respondents herein had threatened to dispossess the appellant from the land described in Schedule-I thereto, being a part and parcel of land under the schedule of the execution case and also from the Schedule-II house mentioned therein on the strength of the decree passed in T.S. No.44/1999 and that on the said date, they gathered knowledge of the said suit and its related execution case. 6. It was also projected that the appellants herein had acquired land holder's right over the Schedule-I land by way of adverse possession to the knowledge of all and they have been maintaining their title and possession over the same beyond the period of limitation to exclusion of all others and that by constructing two houses mentioned in Schedule-II they are in possession of the said two houses as owners and these facts were mentioned in T.S. No.338/2006. 7. It was further projected that the houses described in Schedule-II was constructed by the appellants which were not a part of the Schedule of the decree obtained by the respondent and that there is also no reason for being so and accordingly, prayer was made to restrain the respondent from evicting the appellants from the land under the Schedule-I. 8. The said Misc. Case No.99/2006, was dismissed by the learned executing Court by order dated 10.09.2007 by recording that the counsel for the respondent herein were heard and that the appellants herein had failed to argue the case despite giving opportunities. 9. Accordingly, it was held that other than the assertion, the appellants had not been able to come forward to establish their claim of right, title and interest in the property with evidence. The learned executing Court took note of the fact that the appellants herein were the sons of the judgment debtor in T.Ex. Case No.18/2003. Assailing the said order, the appellants herein had filed an appeal under Order XLI Rule 1 CPC read with Rule 103 of the Order XXI CPC. The said appeal was registered as Misc. Appeal No.16/2007 before the Court of learned Civil Judge, Karimganj. Case No.18/2003. Assailing the said order, the appellants herein had filed an appeal under Order XLI Rule 1 CPC read with Rule 103 of the Order XXI CPC. The said appeal was registered as Misc. Appeal No.16/2007 before the Court of learned Civil Judge, Karimganj. The learned first appellate Court by judgment and order dated 11.01.2011, dismissed the appeal by holding that the appellants herein could not be stated to be a stranger to a proceeding for execution of decree for ejectment of tenant in any manner and character and arrived at a finding that the appeal was preferred in a mistaken provision which was misconceived and accordingly, by holding that the appeal had no merit, the same was dismissed. 10. The learned counsel for the appellants has submitted that in so far as T.S. No.338/2006 is concerned, the said suit was dismissed and the appeal was preferred therefrom was also dismissed and accordingly, a second appeal has been preferred before this Court, which is yet to be admitted for hearing. 11. Assailing the impugned order, it is submitted that T.S. No.44/1999, was filed by the respondent only against Sukhamoy Deb and admittedly the appellants herein were not a party in the said suit. 12. It is submitted that in meanwhile, the appellants had been possessing the said suit premises on their own by creating an adverse title in their favour by dint of continuous long possession. It is further submitted that the predecessor-in-interest of the respondents had purchased the said land from one Sirajul Hoque Choudhury during the pendency of CRP 217/1993 and that without taking any steps for getting the tenancy of the commercial premises attorned in their favour, the respondents herein had filed T.S. No.44/1999 only against Sukhamoy Deb. It is projected that only when the decree was sought to be executed against the interest of the appellants, they had sought to protect their interest by instituting T.S. No.338/06 and by filing Misc. Case No.99/2006 as the decree passed in T.S. No.44/1999 was not binding on them. 13. It is projected that only when the decree was sought to be executed against the interest of the appellants, they had sought to protect their interest by instituting T.S. No.338/06 and by filing Misc. Case No.99/2006 as the decree passed in T.S. No.44/1999 was not binding on them. 13. It is submitted that several efforts were made to adduce evidence in the case by filing petition to call for the record and to appoint a Survey Commissioner for proper demarcation of the suit property and the property forming part of the execution case, but such prayer were refused and thereby the learned executing Court had not granted adequate opportunity to the appellants to adduce evidence and to prove their case. It is further submitted that although petitions were filed for stay of the execution proceeding, but the learned executing Court had failed to invoke power under Order XXI Rule 29 CPC. 14. It is further submitted that the judgment passed by the learned first appellate Court was not a proper adjudication of the appeal because the learned first appellate Court with a pre-determined mind to dismiss the appeal had found fault in the Memo of Appeal for quoting a wrong provision of law under Order XXI Rule 103 CPC and by taking a view that the appeal was preferred under the mistaken provision of law, dismissed the appeal without any proper adjudication and without application of judicial mind, which is not tenable. 15. It is submitted that the suit houses is a commercial shop premises and therefore, it is a non-residential building and that by right of inheritance, the appellants have an unrestricted right to remain in the suit premises independent of the right of their father namely, Sukhamoy Deb. It is also submitted that it was the duty of the learned first appellate Court to examine and to appreciate the fact that the appellants had not got any opportunity of leading evidence before the learned executing Court and as the application under Order XXI Rule 97, 100, 101 CPC proceeded like a suit, it was obligatory for the learned first appellate Court to remand the matter to the learned trial Court for giving an opportunity to the appellants to lead evidence. Hence, it is submitted that the present appeal deserves to be allowed because the learned Court below had failed to appreciate the applicability and provision of Order XXI Rule 103 CPC, either by allowing the appeal or by ordering a remand. 16. In support of his submission, the learned counsel for the appellants has referred to the following case laws: 1. Soma Devi and others Vs. Raj Krishan Sharma, (1987) 3 SCC 62 2. Om Prakash and another Vs. Jai Prakash, (1992) AIR SC 885 3. Prataprai N. Kothari Vs. John Bragaza, (1999) 4 SCC 403 4. Anwarbi Vs. Pramod D.A. Joshi and others, (2000) 10 SCC 405 5. Ashan Devi and another Vs. Phulwasi Devi and others, (2003) 12 SCC 2019 6. Niyamat Ali Molla Vs. Sonargon Housing Co-operative Society Ltd. and others, (2007) 13 SCC 421 and 7. Maya Devi Vs. Lalita Prasad., (2015) 5 SCC 588 17. Per contra, the learned Senior counsel for the respondents has submitted that the decree of eviction was passed on 29.06.2002 in T.S. No.44/1999 and for one reason or the other, the said decree could not be executed till date. It is further submitted that since the period for which rent was claimed in the suit, no rent was paid either by the appellant or by the judgment debtor in T.S. No.44/1999 till date and, as such for almost 20 years now, the suit property is being enjoyed by the appellants without any rent being paid to the respondents. 18. It is also submitted that against the decree passed in T.S. No.44/1999 no appeal has been preferred till date. However, by filing T.S. No.338/2006, claim has been made by the appellants on account of adverse possession of the suit property. And on the same ground the decree sought to be objected/ resisted. It is submitted that T.S. No.338/2006 as well as Misc. Case No.99/2006 and appeal preferred against the dismissal of both the said proceedings have been dismissed. Hence, in both the parallel rounds of litigation, although order favourable to the respondents have been passed, yet the respondents have been deprived from the fruits of the decree. 19. By referring to the statements made in Misc. Case No.99/2006 and appeal preferred against the dismissal of both the said proceedings have been dismissed. Hence, in both the parallel rounds of litigation, although order favourable to the respondents have been passed, yet the respondents have been deprived from the fruits of the decree. 19. By referring to the statements made in Misc. Case No.99/2006 and by referring to the order dated 17.08.2007 in the said proceeding, it is submitted that the appellants had not pleaded about their own status in respect of the suit property and there is a lack of material particulars so as to enable the Court to arrive at a finding on the issue of claim for adverse possession of the appellants and as per the order dated 17.08.2007, the appellants did not make any attempt to lead any evidence and therefore, when there was no argument or evidence from the side of the appellants, the proceeding of Misc. Case No.99/2006 was rightly dismissed and therefore, without any evidence on record, there is no merit in the present second appeal. 20. It is submitted that notwithstanding that the learned first appellate Court, had referred to the wrong quoting of the provisions of law, but the appeal was actually dismissed on merit. 21. Lastly, it is submitted that the materials available in this memo of appeal and LCR received from the learned executing Court, there is no material to show that the appellants were jointly possessing the decreetal land independent of Sukhamoy Deb and that the tenant in the property was Sukhamoy Deb whose sons are the appellants herein, as such, it is submitted that there is no way by which it can be inferred that the appellants had inherited the tenancy during the lifetime of their father. Hence, it is submitted that there is no merit in the appeal and the same be dismissed. 22. Perused the L.C.R. and the materials available on record. It is seen that the respondents had instituted T.S. No.44/1999 against Sukhamoy Deb, which was decreed vide judgment and decree dated 29.06.2002 by the learned Civil Judge (Junior Division) No.1, Karimganj. The said decree has attained finality and in this regard, there is no dispute at the Bar. 23. In T.S.44/1999, the case projected by the respondents herein (i.e. plaintiffs in the suit) was that one Md. The said decree has attained finality and in this regard, there is no dispute at the Bar. 23. In T.S.44/1999, the case projected by the respondents herein (i.e. plaintiffs in the suit) was that one Md. Sirajul Hoque Choudhury was the owner of the suit property, which was in occupation of the said Sukhamoy Deb as a tenant. The said suit property was sold to Amitava Das (since deceased) vide registered Sale Deed No.2494/1986. The said Amitava Das, was the predecessor- in- interest of the respondents herein, being the husband of the respondent No.1 and the father of respondents No.2 and 3. Amitava Das died on 31.08.1996, leaving behind the respondents as the successors to the suit property, each having equal share therein. It was submitted by the learned senior counsel for the respondents that on 21.08.2006, after steps for execution of decree in T.S. 44/1999 was issued, the appellants herein had instituted T.S. 338/2006, claiming declaration of title, conformation of possession and for permanent injunction. It is seen that in the said suit, the respondents herein were arrayed as defendants No.1, 2 and 3 respectively. Sukhamoy Deb, the father of the appellants herein was arrayed as defendant No.4 and Surajit Deb, another brother of the appellants was arrayed as defendant No.5. One Haridas Deb was arrayed as proforma defendant No.6 and Shefali Deb, the mother of the appellants herein was arrayed as proforma defendants No.7. 24. In the said execution case, the appellants herein had filed a petition under section 47 and Rule 99, 100 and 101 or Order XXI CPC, which was registered as Misc. Case No. 99/2006. In the said Misc. Case 99/2006, the appellants had filed petition No.714/22 dated 11.05.2007 to call for the records of T.S. No.311/1981 instituted by Md. Sirajul Hoque Choudhury for evicting his tenant, namely, Sukhamoy Deb, claiming that the eviction was not in respect of the land described in the schedule of the objection filed by the appellants on 22.08.2006. The learned executing Court had rejected the said petition No.714/22 by order dated 24.05.2007, thereby declining to apply discretion under Order XIII Rule 10 CPC to all for the record on the ground that the appellants had moved the Court to call for the records without filing any certified copy. Thereafter, by filing petition No.1210/10 dated 05.06.2007, the appellants took time to obtain certified copies of the earlier suit. Thereafter, by filing petition No.1210/10 dated 05.06.2007, the appellants took time to obtain certified copies of the earlier suit. On the prayer for adjournment filed on 26.06.2007, the hearing of the Misc. Case was adjourned to 07.07.2007 as a last chance. On 07.07.2007, a prayer was made to stay the execution proceedings and accordingly, the hearing was adjourned. On 17.07.2007, the learned executing Court had heard both sides at length and the case was fixed for 06.08.2007 for orders. By order dated 06.08.2007, the learned executing Court had rejected petition No.143/21 by which prayer was made to stay the execution proceeding on the ground that the decree in question was not set aside by competent Court and the Misc. Case was fixed for hearing on 17.08.2007 by again giving a last chance. On 17.08.2007, once again a prayer was made vide petition No.973/21 for adjournment on the ground that the appellant No.2 was ill and for adducing evidence. The learned executing Court was of the view that the said Misc. Case was registered on 22.08.2006 and in spite of having sufficient opportunities, the appellants herein neither shown any initiative to adduce evidence nor prayed so before. Moreover, the claim of illness was also not supported with any cogent evidence and, as such, as the date was fixed as a last chance, the prayer for adjournment was rejected and the learned executing Court proceeded to hear the respondents by giving liberty to the appellants to argue their case prior to delivery of order and the case was fixed for delivery of orders on 03.09.2007. On the said date, the learned Presiding Officer was on leave and the case was fixed on 10.09.2007 for delivery of orders. Accordingly, by order dated 10.09.2007, the said Misc. Case was dismissed. 25. As per the LCR, the said Misc. Case 99/2006 was registered on the basis of petition No.1026/22 dated 22.08.2006. In the said Misc. Case, the appellants herein were the petitioners and the respondents were the only opposite parties. It would be pertinent to mention herein that the appellants herein had not arrayed Sukhamoy Deb, their father as one of the opposite parties in the said Misc. Case. 26. In paragraph 1 of the said Misc. In the said Misc. Case, the appellants herein were the petitioners and the respondents were the only opposite parties. It would be pertinent to mention herein that the appellants herein had not arrayed Sukhamoy Deb, their father as one of the opposite parties in the said Misc. Case. 26. In paragraph 1 of the said Misc. Case it was stated that on 15.08.2006 on the strength of decree dated 29.06.2002 in T.S. 44/1999, the respondents herein had threatened to dispossess the appellants from the land described in Schedule-1 which is a part of decreetal land under the schedule of the execution case filed by the respondent herein and also from the second schedule houses. It was stated that on the said date, the appellants had gathered knowledge of T.S. No.44/1999 and its related execution case. In paragraph 2 of the said petition, it was mentioned that the appellants had acquired land holder's right over the Schedule-1 land by way of adverse possession to the knowledge of all and that they had been maintaining their title and possession over the same beyond the period of limitation to the exclusion of all other and that they have constructed the two houses in this Schedule-2 land in the year 1985 and they are possessing the same as owners and it was further stated that all these were stated in T.S.338/2006 filed by them against the respondents herein. In paragraph 3, it was stated that the houses constructed by the petitioners described in Schedule-2 are not the part of the schedule of the decree obtained by the respondents and that there is also no reason for being so. Accordingly, it was prayed that the respondents be restrained from evicting the appellants from the land described in Schedule-1. 27. The perusal of the LCR and the records of this appeal reveal something very disturbing that how process of law have been abused by the appellants. As mentioned herein before, petition No.1026/22 dated 22.08.2006 was registered as Misc. Case No.99/2006. In the LCR, the said petition is found supported by an affidavit sworn by the appellant No.2, namely, Samarjit Deb. In the said affidavit, the age of the appellant No.2 is mentioned as 38 years, as such, he was born in the year 1968. The English translation and vernacular version of the said Misc. Case No.99/2006. In the LCR, the said petition is found supported by an affidavit sworn by the appellant No.2, namely, Samarjit Deb. In the said affidavit, the age of the appellant No.2 is mentioned as 38 years, as such, he was born in the year 1968. The English translation and vernacular version of the said Misc. Case No.99/2006 is annexed to this Memorandum of this appeal as Annexure 5 from page 43 to 49, but the said affidavit page available in the LCR has been withheld by the appellants in this memo of appeal. The reasons for withholding the said vital affidavit appears to be because as per the said affidavit, the appellant No.2 was 38 years of age as on 22.08.2006, as such, in the year 1985, when the appellant No.2 is alleged to have constructed house on the decreetal land of TS 44/1999, he would be a minor of 17 years of age. Moreover, in the LCR, petition No.143/21 dated 07.07.2007 filed by the appellants is supported by an affidavit sworn by appellant No.2, as per which his age on 11.05.2007 was declared to be 36 years and accordingly, the appellant No.2 would be aged 15 years in the year 1985. However, in the cause title of T.S. No. 338/2006 and Misc. Case No. 99/2006, the age of appellant No.1 is disclosed to be 42 years and that of appellant No.2 is disclosed to be 38 years. The projection of the age of the appellant No.1 to be 42 years as on 22.08.2006 is another example of the fact that the appellants had resorted to falsehood and/or suppression of material facts. In this case in hand, the age of the appellants is very material and any incorrect description would lead to incorrect finding by the Courts. The reason thereof is that the appellant No.1, namely, Sumit Deb has sworn an affidavit on 13.12.2018 in respect of I.A. (Civil) 4262/2018, in connection with this appeal, wherein his age is disclosed as 38 years on 13.12.2018, as such, the appellant No.1 was born in or about the year 1980. It may be mentioned that in the print-out of the affidavit, the age is mentioned as 28 years, but by pen 2 is made 3 and, as such, while swearing the affidavit on 13.12.2018, his age was 38 years. It may be mentioned that in the print-out of the affidavit, the age is mentioned as 28 years, but by pen 2 is made 3 and, as such, while swearing the affidavit on 13.12.2018, his age was 38 years. Hence, in the year 1985, when he had allegedly constructed the houses on the decreetal land, he would be aged 5 years only and, as such, a minor. Accordingly, by no means, it can be accepted that in the year 1985, the appellants herein could have constructed houses over the suit land so as to claim possession independent of their father, namely, Sukhamoy Deb. It may be pertinent to mention herein that the appellants had miserably failed to prove that they had constructed any houses on the decreetal land, therefore, at this second appellate stage the Court is unable to accept that the appellants have semblance of any right, title or interest in respect of those houses and, as such, there appears to be no merit in the submissions made by the learned counsel for the appellant to claim that the objection by the appellants is sustainable, rather, the Court is of the considered opinion that if any construction has come up on the decreetal land, so as to change the nature and character of the houses standing on the decreetal land, had come up after the decree was passed in R.S. No.44/1999, which cannot confer any right upon the appellants in respect of the decreetal land or in respect of any houses standing thereon. As mentioned herein before, the appellants have given different age in Misc. Case No. 99/2006 only to mislead the learned executing Court as well as this Court, so as to falsely portray before the Court that they were adults in the year 1985. In the facts of the present case, the nature of falsehood and/ or suppression of material facts is nothing but an attempt to perpetrate fraud upon the Court and as fraud is found to have vitiated the stand of the appellants, fraud is an exception which can be assailed even in a collateral proceeding, which had compelled the Court to examine the pleadings on record. Hence, the story projected in Misc. Case No.99/2006 is found to be baseless and not at all plausible. Hence, the story projected in Misc. Case No.99/2006 is found to be baseless and not at all plausible. It is, therefore, presumed that to prevent such discrepancy of the age of the appellants from being exposed, the appellants had made no attempt to give evidence in connection with Misc. Case No. 99/2006. 28. The Court is conscious of the well settled law that ordinarily the second appellate Court ought not to re-appreciate pleadings and evidence to arrive at a finding which is not the case of any of the parties in the proceeding. But in this case in hand, as an appellate Court, the Court was required to glance at the pleadings on record, and in the process, it has come to the notice of the Court that the Misc. Case No. 99/2006 filed before the learned executing Court was supported by an affidavit, which is available at page-33 of the LCR. However, as the said affidavit was suppressed by the appellants by not filing the same as a part of Annexure-5 of the Memo of Appeal i.e. Misc. Case No.99/2006, the Court has taken a view that there is suppression of material facts which amounts to perpetrating fraud upon the Court. It is for the said limited purpose that the pleadings has been gone into at this second appellate stage and it has appeared to the Court that there cannot be any other reason for suppressing material facts having immense bearing on the case, but to prevent this Court from appreciating that both the appellants herein were minors in the year 1985, when they had allegedly constructed houses on the decreetal land, thereby claiming creation of interest adverse to their own father, namely, Sukhamoy Deb and the landladies, i.e. the respondents. There is a well accepted doctrine of law, i.e. fraus et jus nunquam cohabitant, meaning that fraud and justice never dwell together. In the case of Satluj Jal Vidyut Nigam Vs. Raj Kumar Rajinder Singh (Dead) through LRs., (2018) 0 Supreme 920, 2018 STPL 10872 SC: (SC), the Supreme Court of India had discussed the meaning and case law on 'fraud' and held that fraud vitiates every solemn act and that fraud and justice never dwell together and it cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. In the case of Meghmala and Ors. Vs. In the case of Meghmala and Ors. Vs. G. Narasimha Reddy and Ors., (2010) 8 SCC 383 , the Supreme Court of India had held that fraud is intrinsic, collateral act, and fraud of an egregious nature would vitiate the most solemn proceeding of courts of justice. Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. In this regard, it was held that the expression fraud involves two elements, deceit and injury to the person deceived. It is cheating intended to get an advantage. Thus, the Court is constrained to hold that the appellants have made a deliberate and willful attempt to mislead the Court by giving a false age in Misc. case No. 99/2006 for the purpose of concealing their year of birth with a purpose of concealing the year when they had attained the age of majority. Thus, by practicing deceit, the appellants had made an attempt to secure an order in their favour. However, the present appeal is not dismissed on the ground that the appellants are guilty of suppression of material facts amounting to fraud upon the Court. 29. The present case has reminded the Court of the case of Dalip Singh Vs. State of U.P., (2010) 2 SCC 114 and paragraph 1 and 2 thereof is quoted below:- 1. For many centuries, Indian society cherished two basic values of life i.e., 'Satya' (truth) and 'Ahimsa' (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of justice delivery system which was in vogue in pre-independence era and the people used to feel proud to tell truth in the Courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system. The materialism has over-shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the Court proceedings. 2. In last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. 2. In last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order, to meet the challenge posed by this new creed of litigants, the Courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final. 30. The contents of all the three paragraphs of Misc. Case No.99/2006 have been mentioned hereinbefore and on perusing the same, it is seen that the appellants herein did not plead (i) the date from when the appellants were claiming hostile possession of the suit land, (ii) any act by the appellants against the interest of the respondents, (iii) any event by which the appellants had declared their hostile right, title or interest against the respondents, (iv) when and how they had entered into the decreetal land, (v) if they were living separately from their father, Sukhamoy Deb, and if so since when. 31. As mentioned herein before, the learned trial Court had recorded in the order dated 17.08.2007 that despite having sufficient opportunities, the appellants had neither shown any initiative to adduce evidence and nor prayed so before. Therefore, merely by filing petition to call for the records or to file a petition praying for getting the suit land inspected by appointing a Survey Commissioner under Order XXVI Rule 9 CPC does not lead to a conclusion that any attempts were made by the appellants to examine any witness and to prove their case. Moreover, in the present memo of appeal, there is no ground to indicate that the appellants had invoked the provisions of Order XLI Rule 27 CPC to give evidence at the appellate stage. Hence, in view of the nature of pleadings in Misc. Case No. 99/2006 and lack of evidence on part of the appellants, the reasons assigned by the learned executing Court to dismiss/reject Misc. Case No.99/2006 cannot be faulted with. 32. Hence, in view of the nature of pleadings in Misc. Case No. 99/2006 and lack of evidence on part of the appellants, the reasons assigned by the learned executing Court to dismiss/reject Misc. Case No.99/2006 cannot be faulted with. 32. In the case of Alimuddin Sheikh V. Bahar Ali, 1989 2 GauLR 119, this Court had held that the decision on the question of limitation is not possible in the absence of finding as to the date on and from which the possession became adverse. In the case of Uttam Kumar Sen Vs. Gita Das Choudhury, (1998) 1 GauLR 145 , this Court had held that the plea of adverse possession is always based on facts which must be asserted and proved and that a person who claims adverse possession must show on what date he came into possession, what was the nature of his possession, whether the factum of his possession was known to the legal claimants and how long his possession was open and undisturbed and it was held that all these are questions of facts and unless they are asserted and proved, a plea of adverse possession cannot be inferred from them. Again while dealing with the issue of adverse possession, in the case of State of M.P. Vs. Nomi Singh, (2015) 14 SCC 450 , the Supreme Court of India had held that in order to succeed on plea of adverse possession, the plaintiffs should have disclosed and proved as to when adverse possession started and when it was perfected by them. On the plea of adverse possession, in the case of M. Durai V. Muthu and Ors., (2007) 3 SCC 114 , the Supreme Court of India had held that once the plaintiff (owner of land) proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession. On the plea of adverse possession, in the case of M. Durai V. Muthu and Ors., (2007) 3 SCC 114 , the Supreme Court of India had held that once the plaintiff (owner of land) proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession. Also in the case of Vishwanath Bapurao Sabale V. Shalinibai Nagappa Sabale and Ors., (2009) 12 SCC 101 , the Supreme Court of India while dealing with the case of adverse possession had relied on the legal maxim of nee vi nee clam nee precario, and it was held that the suit of respondent was based on title and, as such, once his title was proved onus was on appellant- defendant to prove that he started possession adversely to interest of the plaintiff and that for the said purpose, the relationship between the parties was an important consideration and it was also held that for claiming title by adverse possession it was necessary for appellant to plead and prove animus possidendi and that peaceful, open and continuous possession being ingredients of adverse possession, long possession by itself would not be sufficient to prove adverse possession. 33. In the present case in hand, the appellants did not plead or prove the date of possession or hostile possession. Thus, the plea of adverse possession, as projected by the appellants in Misc. Case No.99/2006 is found to have miserably failed. There is no escape that there is a valid decree passed against Sukhamoy Deb, the father of the appellants in T.S. 44/1999 and that the appellants, being the sons of the said judgment debtor have not been able to prove their independent possession de hors their father. Accordingly, in view of the discussions above, this Court is constrained to hold that the appellants have failed to prove by any cogent evidence that during the lifetime of their father, Sukhamoy Deb, who was the original tenant under the vendor of the respondents, they could establish any animus possidendi in respect of the decreetal land, which is the subject matter of Title Execution Case No.18/2003, which can be stated to be adverse or hostile against the respondents herein in any manner whatsoever. The learned executing Court is found to have rightly held that the appellants herein are the sons of the judgment debtor of T.S. No.18/2003 against whom there exists a lawful decree. The learned executing Court had also rightly held that the Misc. Case No.99/2006 was filed by the appellants without any just cause and that there was no merit in the prayer of the appellants. Accordingly, the order/ decree dated 10.09.2007 passed by the learned Munsiff No.1, Karimganj in Misc. Case No. 99/2006 is liable to be and is accordingly, affirmed. 34. Now, coming to the first appellate judgment and decree dated 11.01.2007 passed by the learned Civil Judge, Karimganj in Misc. Appeal No. 16/2007, it is seen that the learned first appellate Court had referred to the mistaken provision under which the appeal was filed. The records show that the said appeal was filed under Order XLI, Rule 1 CPC read with Rule 103 of Order XXI CPC. The Court does not find any infirmity in the said finding, because as per the provisions of Order XXI, Rule 103 CPC, orders passed on adjudication under Rule 98 or Rule 100 are required to be treated as if it was a decree. The procedure prescribed under Order XLI, Rule 1 CPC relates to the form and contents of the memorandum of appeal. However, the substantive provision for filing an appeal against the decree is section 96 CPC. However, merely for incorrect mentioning of the provision of law, it cannot entail dismissal of the appeal because if such discrepancy comes to the notice of the appellate Court, the appellate Court has power under Order XLI Rule 3 CPC to return the memorandum to the appellant for the purpose of being amended within a time to be fixed by the Court or be amended then and there. The learned first appellate Court had erred in law rejecting of the appeal, inter-alia, on the ground that the order passed in the Misc. Case cannot be challenged in the manner prayed for. However, owing to the nature of the present case, it would be only a prolongation of litigation to remand the matter back to the learned first appellate Court because as discussed above, there is absolutely no merit in the plea taken by the appellants in Misc. Case No. 99/2006. 35. Case cannot be challenged in the manner prayed for. However, owing to the nature of the present case, it would be only a prolongation of litigation to remand the matter back to the learned first appellate Court because as discussed above, there is absolutely no merit in the plea taken by the appellants in Misc. Case No. 99/2006. 35. The learned counsel for the appellants had cited the following cases, viz., (i) Soma Devi and Ors. Vs. Raj Krishan Sharma, (1987) 3 SCC 62 , (ii) Prataprai N. Kothari Vs. John Braganza, (1999) 4 SCC 403 , (iii) Anwarbi Vs. Pramod D.A. Joshi and Ors., (2000) 10 SCC 405 , (iv) Ashan Devi and Anr. Vs. Phulwasi Devi and Anr., (2003) 12 SCC 219, (v) Niyamat Ali Molla Vs. Sonargaon Housing Cooperative Society Ltd. and Ors., (2007) 13 SCC 421 , and (vi) Maya Devi Vs. Kalita Prasad, (2015) 5 SCC 588 . a. The case of Soma Devi (supra) has been cited to show that commercial premises was heritable. However, without proving how during the lifetime of the father, the appellants could inherit the decreetal land, the said citation is of no help to the appellant. Moreover, the plea taken up by the learned counsel for the appellant appears to be misconceived because as per the cause title of the instant memo of appeal filed by the appellants, their father is very much alive and the learned counsel for the appellant has not shown any law which entitles the appellants to claim inheritance during the life-time of their father. Rather, by referring to the right of inheritance of the appellants and by citing the said decision, the Court is of the opinion that the appellants have specifically admitted that they are claiming possession of the decreetal land through their father, namely, Sukhamoy Deb and that they do not have any independent right over the decreetal land. Thus, this appeal is found to be meritless in light of such plea. b. The case of Prataprai N. Kothari (supra) was cited to project that possessory title is required to be considered as the appellants had been in long possession of the decreetal land. In this regard, in view of the discussions above, as the appellants have miserably failed to establish any adverse possession, merely a long possession would not give the appellants the benefit of the cited case. In this regard, in view of the discussions above, as the appellants have miserably failed to establish any adverse possession, merely a long possession would not give the appellants the benefit of the cited case. c. The case of Anwarbi (supra), Niyamot Ali Molla (supra), Maya Devi (supra) and Ashan Devi (supra) was cited to project that the obstructionist in possession can only be dispossessed in accordance with law and that where obstruction had been caused to the execution of the decree, it is for the decree- holder to take appropriate steps under Order XXI, Rule 97 CPC, In this case in hand, the ratio of the cited case would not apply because the appellants have not been able to show that they have any right independent of Sukhamoy Deb, their father, who is the judgment debtor in T.S. No. 44/1999. 36. In the present case in hand, it is seen that the respondents had obtained a decree for eviction on 29.06.2002 in T.S. 44/1999, which could not be executed till date, as such, it would be appropriate for this appellate Court to deal with substantial question of law on which this appeal was admitted. To answer the said substantial question of law, it is seen that the provisions of Rule 104 of order XXI provides that every order made under Rule 101 or Rule 103 shall be subject to result of any suit that may be pending on the date of commencement of the proceeding on which such order is made. If in such suit, the party against whom the order under Rule 101 or Rule 103 is made has sought to establish a right which is claims to the present position of the property. In the opinion of the Court, the said provision is not para-materia to any provisions in the Civil Procedure Code for either staying the execution proceedings or staying the proceedings initiated under section 47 or Rule 99, 100 and 101 or Order XXI CPC. Rule 104 of Order XXI CPC merely provides that orders under Rule 101 or Rule 103 would be subject to the result of the pending suit. Accordingly, there appears to be no impediment at all for the learned executing Court and the learned first appellate Court to proceed with the hearing of Misc. Case No. 99/2006 and Misc. Rule 104 of Order XXI CPC merely provides that orders under Rule 101 or Rule 103 would be subject to the result of the pending suit. Accordingly, there appears to be no impediment at all for the learned executing Court and the learned first appellate Court to proceed with the hearing of Misc. Case No. 99/2006 and Misc. Appeal No. 16/2007 and to dispose of such application and/ or appeal on merit without awaiting the verdict in T.S. No. 338/2006. Therefore, the Court, in its considered opinion is inclined to hold that the learned Courts below did not commit any error by failing to consider the applicability of the provisions of Order XXI Rule 104 CPC in deciding Misc. Appeal No.16/2007 and Misc. Case No.99/2006 arising out of T.Ex. Case No.18/2003. The substantial question of law is answered accordingly. 37. Therefore, notwithstanding that the learned first appellate Court had erred in law in giving its finding that the appeal was not maintainable, yet for reasons as assigned hereinbefore, the Court does not find any infirmity by the learned first appellate Court in dismissing the appeal because in the absence of any evidence by the appellants on record, there was no material before the learned first appellate Court differ with the finding by the learned executing Court. Therefore, this Court had appreciated the materials available on record only to find that the appellants had deliberately mislead the Court with false material particulars by giving a wrong description of age in respect of the appellant No.1 and it was falsely projected that in the year 1985, the appellants had constructed houses on the suit land during their age of minority of 5 years and 15/17 years respectively. 38. Thus, the present appeal is found to be devoid of any merit. Therefore, this appeal stands dismissed with cost. For withholding the affidavit filed in support of Misc. Case No.99/2006, which is found to be very material, the Court is inclined to impose a further cost of Rs.10,000/- in addition to the usual cost. 38. Thus, the present appeal is found to be devoid of any merit. Therefore, this appeal stands dismissed with cost. For withholding the affidavit filed in support of Misc. Case No.99/2006, which is found to be very material, the Court is inclined to impose a further cost of Rs.10,000/- in addition to the usual cost. It is provided that if the appellants fails to deposit such cost before the Registry of this Court within a period of 30 days from today with notice to the learned counsel for the respondents, it would be open for the respondents herein to realize the said cost in the pending execution proceeding i.e. Title Execution Case No. 18/2003, pending before the Court of learned Munsiff No.1, Karimganj [previously Civil Judge (Junior Division) No.1, Karimganj]. 39. It had been stated by the learned counsel for the appellant at the Bar that T.S. No. 338/2006 was dismissed and appeal preferred by the appellant was also dismissed and that the appellants herein had filed an appeal under Section 100 CPC before this Court, which is pending admission. In the opinion of the Court, the provisions of Order XXI, Rule 104 CPC is only applicable before the learned executing Court, and that too, pending decision in T.S. No. 338/2006. Therefore, once the said T.S. No. 338/2006 has been dismissed, the learned executing Court cannot postpone the execution because, it is only open to the appellate Court to invoke the specific provisions of Order XLI, Rule 5 CPC and stay the operation of the decree against which appeal has been preferred. For the said reasons, though the ratio of the case of Om Prakash Vs. Jai Prakash, (1992) AIR SC 885, is well settled on the point that appeal is an extension of the suit, but the said case does not help the appellants because of the specific provisions of Order XLI, R.5 CPC, which empowers only the appellate Court to stay the decree. The said citation is not an authority on the point that merely because an appeal is pending before superior Courts, the executing Court shall not proceed with the execution and moreover, in the said case the Supreme Court of India was not dealing with the provisions of Order XXI, Rule 104 in light of the provisions of Order XLI, Rule 5 CPC in the cited case. It is too well settled that the decision of the case depends on the facts of the case and in the present case in hand, the facts are quite different from the facts involved in the said cited case. However, ends of justice would be met by providing that it would be open for the appellants herein to produce a copy of the order by this Court for staying the execution of the decree within one month from today, failing which there shall be no impediment for the learned executing Court to pass appropriate orders in the execution proceeding. 40. As indicated above, this appeal stands dismissed with usual cost as well as a further cost of Rs.10,000/-. Resultantly, by answering the substantial question of law in the negative and against the appellants, the judgment and decree passed by the learned first appellate Court is partly affirmed and the judgment and decree passed by the learned executing Court is affirmed. 41. Let a decree of dismissal of this appeal be prepared, reflecting the imposition of further cost of Rs.10,000/- apart from usual cost of appeal. 42. Send back the LCR.