JUDGMENT 1. The present second appeal has been filed u/s. 100 of the Code of Civil Procedure, 1908 against the judgment and decree dated 1.9.2006 passed in Civil Regular Appeal No. 63/2005. 2. Facts of the case reveal that the present appellant Sabir Mohammad has filed a Civil Suit claiming declaration of title and for grant of permanent injunction against the defendants stating categorically that he is the title holder of the suit property ie., shop and the open land in front of the shop and open land behind House No. 57, New Number 714, Jawahar Marg, Indore. A declaration was also sought in respect of the suit property with a specific prayer that the judgment and decree delivered in an eviction suit which was between the defendants ie., Civil Suit No. 528/1964, New Number 33/1965, is not binding upon the plaintiff. The plaintiff Sabir Mohammad, in paragraph 3 has categorically stated in his plaint that the plot in question was a plot adjoining the river and a running drain (‘Nala’). It was unfertile land which was lying open and in those circumstances he constructed a temporary shed over it. He has also stated that he took possession of the property which was certainly not his property and by virtue of adverse possession, he is the title holder. A relief of declaration in respect of the judgment and decree dated 24.12.1965 was also sought, as already stated earlier, which was in respect of a landlord tenant suit. There was a direction to evict the tenants therein and as the present appellant was residing in the suit premises, he sought a consequential relief for a declaration that the judgment and decree dated 24.12.1965 is not binding upon him. 3. In order to understand the issue which was decided in the Civil Suit vide judgment and decree dated 24.12.1965, certain necessary facts are required to be mentioned in the present judgment. The land in question ie., the land bearing Survey No. 101, Jawahar Marg, Indore was transferred to one Sadashiv Pundlik Joshi by virtue of an ante-adoption (settlement deed), the same was executed on 25.2.1947. The suit property was transferred vide a registered deed by Sadashiv Pundlik Joshi in favour of Shridhar Joshi. 4. The said Sridhar Joshi, predecessor of respondents No. 1 to 5 filed a civil suit for evicting his tenant namely; Manoharlal (predecessor of respondent No. 6 to 9). The suit property was transferred vide a registered deed by Sadashiv Pundlik Joshi in favour of Shridhar Joshi. 4. The said Sridhar Joshi, predecessor of respondents No. 1 to 5 filed a civil suit for evicting his tenant namely; Manoharlal (predecessor of respondent No. 6 to 9). The suit was filed on 27.11.1964 (Ex.D-1). The suit filed by Shridhar Joshi (predecessor of respondents No.1 to 5) against Manoharlal (predecessor of respondents No. 6 to 9) was decreed and a decree of eviction was passed by 1st Civil Judge, Class II, on 24.12.1965. An appeal was preferred in the matter by the tenants and by judgment and decree dated 29.8.1966, the decree was set aside by the first appellate Court. Thereafter, the matter has travelled upto this Court in Second Appeal which was preferred by respondents No. 1 to 5 Shridhar Joshi (predecessor of respondents No. 1 to 5) ie., S.A.No. 536/1976 and this Court has allowed the appeal, meaning thereby, affirming the decree of eviction passed by the trial Court in favour of the plaintiff Shridhar Joshi, meaning thereby, the decree of the trial Court was restored. 5. In the year 1977, the decree holder filed an application before the executing Court praying for grant of possession of the suit property. On 5.9.1977 objections were filed by Yasin Khan, father of the present appellant, in the execution proceedings contending that the suit property was under his ownership. Objection was preferred under Order 21 rule 97 of the Code of Civil Procedure, 1908 resisting the judgment and decree and at the same time the father of the present appellant Yasin Khan filed a civil suit for declaration of title and for grant of permanent injunction. It is pertinent to note that on 14.7.1999 spot inspection was carried out in pursuance to the order passed by the executing Court (Ex.D-4) and finally the executing Court has dismissed the objection filed by Yasin Khan (deceased represented through legal representative – Sabir Mohammad). The objection was dismissed by order dated 17.4.2003 by the executing Court (Ex.D-17). Another important aspect of the case is that Second appeal No. 39/2003 filed by the appellant against the judgment passed by the two Courts below, whereby the suit filed by the appellant was held as not maintainable, was dismissed by this Court vide judgment dated 6.8.2003 (Ex.D-18). 6. Another important aspect of the case is that Second appeal No. 39/2003 filed by the appellant against the judgment passed by the two Courts below, whereby the suit filed by the appellant was held as not maintainable, was dismissed by this Court vide judgment dated 6.8.2003 (Ex.D-18). 6. The present appellant before this Court filed a first appeal ie., F.A.No. 31/2003 against rejection of his objection preferred under Order 21 rule 97 of the Code of Civil Procedure, 1908 (Order dated 17.4.2003) and the first appeal preferred by Sabir Mohammad (the present appellant) was dismissed by the Court of XIX Addl. District Judge, Indore on 16.3.2004. Sabir Mohammad, the present appellant, preferred a Second Appeal ie., S.A. No. 501/2004 and it was also dismissed by this Court on 4.11.2004. 7. The suit which is subject matter of the present appeal ie., Civil Suit No. 61-A/2002 was dismissed by the trial Court vide judgment and decree dated 14.9.2005, against which an appeal was preferred (first appeal) by the plaintiff appellant and the judgment and decree passed by the trial Court has been affirmed by the first appellate Court vide judgment and decree dated 1.3.2006. 8. The present Second Appeal is, therefore, arising out of the judgment and decree dated 14.9.2005 passed by the trial Court and also against the judgment and decree dated 1.3.2006 passed by the first appellate Court. This Court, while admitting the appeal has framed the following substantial questions of law : (1) Whether the lower Courts erred in law in finding a title in favour of the respondents without any document showing transfer of title to them by Indore City Improvement Trust ? (2) Whether the Courts below were wrong in evaluation of Exs. D/6 and D-7 as against Exs. P-2 to P-29 and P-33 to P-35 ? (3) Whether the first appellate Court committed an error of law in rejecting the application of the appellant filed under Order XLI Rule 27 of the CPC ? 9. The trial Court has taken into account the oral and documentary evidence while delivering the judgment and decree, which has been affirmed by the first appellate Court and based upon the following oral and documentary evidence the trial Court has not granted a decree of title nor granted any injunction in favour of the plaintiff/appellants. 9. The trial Court has taken into account the oral and documentary evidence while delivering the judgment and decree, which has been affirmed by the first appellate Court and based upon the following oral and documentary evidence the trial Court has not granted a decree of title nor granted any injunction in favour of the plaintiff/appellants. The following oral and documentary evidence was considered by the trial Court : ORAL EVIDENCE : PW-1 Mohammad Sabir (Plaintiff); PW-2 Gulam Kadar; PW 3 Israr Ahmad; DW1 Vinod; DW-2 Arvind Joshi; and, DW-3 Omprakash Rajore DOCUMENTARY EVIDENCE Exhibit P-1 Map of suit property; Exhibit P-2 Notice dated 20.2.1998; Exhibit P-3 Assessment order dated 1.3.1960; Exhibit P-4 Assessment notice dated 20.4.1960; Exhibit P-5 Notice dated 28.12.1966; Exhibit P-6 Tax receipts; Exhibit P-7 Bill of Municipal Corporation; Exhibit P-8 Demand notice; Exhibit P-9 Bill dated 5.12.1968; Exhibit P-10 Bill dated 22.10.1970; Exhibit P-11 Demand notice dated 19.11.1970; Exhibit P-12 Bill dated 27.10.1971; Exhibit P-13 Show Cause Notice; Exhibit P-14 Demand notice dated 3.8.1974; Exhibit P-15 Assessment order; Exhibit P-16 Assessment order; Exhibit P-17 Demand notice of I.M.C.; Exhibit P-18 Tax receipts; Exhibit P-19 I.M.C. Bill dated 14.11.1972; Exhibit P-20 Demand notice; Exhibit P-21 Notice and bill of I.M.C.; Exhibit P-22 to P25 Bills of I.M.C.; Exhibit P-26 Notice issued by excise department; Exhibit P-27 Notice; Exhibit P-28 Dakhla of appeal; Exhibit P-29 Stay order of appeal committee; Exhibit P/30 – Death certificate of Yasin Khan; Exhibit P-31 Will; Exhibit P-32 Map; Exhibit P-33 Mutation order; Exhibit P-34 to P-35 Tax receipts; Exhibit P-36 Stay order passed by Court; Exhibit P-37 Jahir Suchna; Exhibit P-38 Map filed by D-1 in execution proceedings; Exhibit P-39 order of executing Court appointing the Commissioner; Exhibit P-40 Statement of Arvind in Case No. 528/1964; Exhibit P-41 Statement of Omprakash; Exhibit D-1 Plaint in C.S.No. 527/1964; Exhibit D-2 order dated 16.3.2004; Exhibit D-3 Appeal memo of second appeal filed before the High Court; Exhibit D-4 Commissioner report; Exhibit D-5 Map; Exhibit D-6 and D-7 record of Sthavar Samptti; Exhibit D8 Grah Mapak Patra; Exhibit D-9 sale deed dahted 10.8.1954; Exhibit D-10 sale deed dated 29.10.1953; Exhibit D-11 order passed in appeal Case No. 64/1969; Exhibit D-12 to D-16 Copies of the sale deeds; Exhibit D-17 Order dated 17.4.2003; and, Exhibit D-18 Order dated 6.5.2003 passed by High Court in S.A.No. 39/2003. 10. Mr. 10. Mr. P. K. Saxena, learned senior counsel has vehemently argued before this Court that the defendants were not the title holder of the property. Learned senior cousnel has placed reliance upon the judgment delivered by the Division Bench of this Court in the case of Municipal Corporation Indore v. State of M.P. reported in [ 1972 MPLJ 598 ]. In the aforesaid case, it has been held that open lands in Indore vesting with the Indore Municipality before the enactment of the M. P. Municipal Corporation Act, Madhya Bharat Municipalities Act and M. P. Land Revenue Code which were vesting in the Indore Municipal Corporation continue to vest in the Indore Municipal Corporation and the Indore Municipal Corporation is entitled to lease out such lands. 11. In the present case, no such dispute is involved. An attempt has been made to establish before the trial Court as well as before this Court that the plaintiff was paying property and other taxes and, therefore, he is the title holder. In the plaint itself the plaintiff has categorically stated that he has encroached the land which was lying open and thereafter constructed a tin shed over the land and he is in possession of the land, meaning thereby, an attempt was made to claim ownership on the ground of adverse possession. 12. The apex Court in the case of Gurudwara Sahib v. Gram Panchayat, Village Sirthala and another reported in 2014(I) MPWN 64 = (2014)1 SCC 669 has declined to grant such a relief to a person who was claiming himself to be the title holder of theproperty by virtue of adverse possession. 13. The most important aspect of the case is that there is a decree of eviction dated 24.12.1965 passed by the Civil Judge, Class II, Indore. The objection preferred by the present appellant under Order 21 rule 97 of the Code of Civil Procedure, 1908 resisting the decree was rejected on 17.4.2003. The First Appeal was dismissed on 16.3.2004 and Second Appeal was dismissed by this Court on 14.11.2004, meaning thereby, the order rejecting the objection of the present appellant dated 17.4.2003 has attained finality. The judgment delivered in First Appeal No. 31/2003 on 16.3.2004 makes it very clear that the present appellant is a sub-tenant (pg. The First Appeal was dismissed on 16.3.2004 and Second Appeal was dismissed by this Court on 14.11.2004, meaning thereby, the order rejecting the objection of the present appellant dated 17.4.2003 has attained finality. The judgment delivered in First Appeal No. 31/2003 on 16.3.2004 makes it very clear that the present appellant is a sub-tenant (pg. 269) and, therefore, both the Courts below were justified in dismissing the Civil Suit preferred by the present appellant as well as the first appeal preferred by the present appellant. 14. The another important aspect of the case is that on account of the judgment delivered by the Full Bench of this Court in the case of Smt. Usha Jain v. Manmohan Bajaj and others reported in ( AIR 1980 (MP) 146 (FB) wherein it was held that a person can file his objection under Order 21 rule 97 of the Code of Civil Procedure, 1908 resisting the decree and can also file a Civil Suit seeking a declaration that the judgment and decree is not binding upon him, stood over-ruled on account of another judgment delivered by the apex Court in the case of Shreenath and another v. Rajesh and others reported in ( AIR 1998 SC 1827 ). Paragraph 5, 15 and 18 of the aforesaid judgment reads as under : 5. The question raised is, whether the third party in possession of a property claiming independent right as a tenant not party to a decree under execution could resist such decree by seeking adjudication of his objections under order 21, Rule 97 of the Civil Procedure code? 15. Rule 100 of the old law, as referred in the aforesaid Full Bench decision of the madhya Pradesh High Court is a situation different from what is covered by rule 97. Under rule 100 (old law) and Order 99 the new law covers cases where persons other than judgment debtor is dispossessed of immovable property by the decree holder, of course, such cases are also covered to be decided by the Executing Court but this will not defeat the right of such person to get his objection decided under rule 97 which is a stage prior to his dispossession or a case where he is in possession. In other words, when such person is in possession the adjudication to be under rule 97 and in case dispossessed adjudication to be under rule 100 (old law) and rule 99 under the new law. Thus a person holding possession of an immovable property on his own right can object in the execution proceeding under Order 21, rule 97. One has not to wait for his dispossession to enable him to participate in the execution proceedings. This shows that such person can object and get adjudication when he is sought to be dispossessed by the decree-holder. For all the aforesaid reasons, we do not find the Full Bench in Smt. Usha jain (supra), correctly decided the law. 18. In view of the aforesaid finding and the law being well settled the interpretation given by the aforesaid full Bench of the M.P. High Court in the case of Usha Jain v. Manmohan Bajaj (supra), cannot be held to be a good law. As we have recorded above, both the Executing Court and the High Court have rejected the application of the applicant under Order 21, rule 97 only on the basis of the said Full Bench decision, hence the said order cannot be sustained. Accordingly, both the orders dated 20th February, 1985 passed by the High Court in civil Revision No. 406 of 1983 and the order dated 20th April, 1983 passed by Executing Court in execution Case No.1 A/70/81 is herewith quashed. 15. In the light of the aforesaid, this Court is of the considered opinion that the appellant is not entitled for any relief of whatsoever kind, as his objection was rejected vide order dated 17.4.2003 and the same was affirmed by the judgment and decree dated 16.3.2004 passed in first appeal and vide judgment dated 14.11.2004 passed in second appeal. 16. In the light of the aforesaid, this Court is of the considered opinion that the appellant is not entitled for any relief of whatsoever kind, as his objection was rejected vide order dated 17.4.2003 and the same was affirmed by the judgment and decree dated 16.3.2004 passed in first appeal and vide judgment dated 14.11.2004 passed in second appeal. 16. Learned senior counsel for the appellant has placed reliance upon the following judgments : Phulwasi Devi v. Ashan Devi and others reported in ( AIR 2004 SC 511 ); Rajkumar Sanahal Singh and others v. R. K. Khutasana Singh and others reported in (AIR 1985 Gauhati 71); Dalpat Kumar and another v. Prahlad Singh and others reported in ( AIR 1993 SC 276 ); Anand Prasad Agarwalia v. Tarkeshwar Prasad and others reported in ( AIR 2001 SC 2367 ); Ashok Layland Ltd v. State of Tamil Nadu and another reported in ( AIR 2004 SC 2836 ); Surendra Singh and others v. Lal Sheoraj Bahadursingh and others reported in ( AIR 1975 MP 85 ); Niyamat Ali Molla v. Sonargon Housing Cooperative Society Ltd., and others reported in ( AIR 2008 SC 225 ); Shreenath and another v. Rajesh and others reported in ( AIR 1998 SC 1827 ); Nagappa v. Dodda Bharamappa and another reported in ( AIR 2000 SC 3567 (1); Mohammed Mahmood and another v. Tikam Das and another reported in ( AIR 1966 SC 210 ); The State of West Bengal and others v. Kamal Sengupta and another reported in JT 2008(8) SC 317; Haridas Das v. Smt. Usha Rani Banik and others reported in JT 2006(3) SC 526; Gorie Gouri Naidu and another v. Thandrothu Bodemma and others reported in ( AIR 1997 SC 808 ); Supreme Court Employees Welfare Association v. Union of India and others reported in ( AIR 1990 SC 334 ); State of West Bengal v. Hemant Kumar Bhattacharjee and others reported in ( AIR 1966 SC 1061 ); Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and another reported in ( AIR 1997 SC 856 ); Silverline Forum Pvt. Ltd. v. Rajiv Trust and another reported in ( AIR 1998 SC 1754 ); Tanzeem-e-Sufia v. Bibi Haliman and others reported in ( AIR 2002 SC 3083 ); and in the case of Ratan Lal Jain and others v. Uma Shankar Vyas and others reported in ( AIR 2002 SC 804 ) 17. This Court has carefully gone through all the judgments relied upon by the learned senior counsel and this Court is of the considered opinion that once the appellant was not able to establish his title and there is a finding of fact arrived at by both the Courts below, the question of allowing the present appeal, in the peculiar facts and circumstances of the case, does not arise. 18. Section 23 of the M. P. Accommodation Control Act, 1961 reads as under : 23. Vacant possession to landlord. Notwithstanding anything contained in any other law, where the interest of a tenant in any accommodation is determined for any reason whatsoever and any decree or order is passed by a Court under this Act for the recovery of possession of such accommodation, the decree or order shall, subject to the provisions of section 16, be binding on all persons who may be in occupation of the accommodation and vacant possession thereof, shall be given to the landlord by evicting all such persons therefrom : Provided that nothing in this section shall apply to any person who has an independent title to such accommodation. 19. In the light of the aforesaid statutory provision of law, the judgment and decree dated 24.12.1965 is certainly binding upon the present appellant. 20. This Court has carefully gone through the evidence assessed and evaluated, the oral as well as documentary, on record and both the Courts below have given a concurrent finding of fact to the effect that the plaintiff has failed to prove his title over the suit property (paragraph 25 of the trial Court’s judgment and paragraph 12 of the first appellate Court judgment). The plaintiff was not able to establish his title and the burden cannot be shifted upon the defendant to prove his title and, therefore, the first substantial question of law, in the peculiar facts and circumstances of the case, does not arise. In respect of the second substantial question of law, the Courts below have certainly not at all done wrong evaluation of Ex.D-6 and Ex.D-7 as against Ex.P-2, Ex.P-29 and Ex. P-33 to Ex.P-35. In respect of the second substantial question of law, the Courts below have certainly not at all done wrong evaluation of Ex.D-6 and Ex.D-7 as against Ex.P-2, Ex.P-29 and Ex. P-33 to Ex.P-35. After evaluation of the entire evidence on record, as the plaintiff was certainly not able to establish his title and as he was a sub-tenant which is established from the documents on record, the decree is certainly binding upon him and his objection was rightly rejected by the trial Court on 17.4.2003 which has been affirmed in the earlier round of litigation by this Court vide judgment and decree dated 4.11.2004 passed in Second Appeal No. 501/2004. The third substantial question of law is also answered in favour of the defendants. 21. Moreover, it was not even the case of the appellant plaintiff that the title was not transferred to the respondents by the Indore Improvement Trust and, therefore, even no issue in this regard was framed before the trial Court. The appellant cannot be permitted to make out an altogether new case at the stage of second appeal in the absence of any factual foundation before the Courts below in the aforesaid regard. 22. As regards the question of law No. 2, it is evident that both the Courts below have properly evaluated the documents Ex. D-6, D-7 as also Ex.P-2 to P-29 and P-33 to P-35 and have concurrently recorded a negative finding in respect of title of the plaintiff over the suit property. It is evident that the appellant is virtually seeking reappraisal of the entire evidence and wants to convert the present appeal in a third appeal on facts. 23. As regards the question No. 3, it is evident that the lower appellate Court has considered application filed by the appellant under Order 41 rule 27 CPC, in para 16 of the judgment. The lower appellate Court has held that the appellant has not assigned any reason for not producing the document (adoption deed) dated 25.2.1947 before the trial Court despite the availability of the said document with the appellant from 2.2.1978. The lower appellate Court has further held that there was no dispute regarding the existence of the document and has further held that the document in question was inconsequential in respect of the present litigation. The lower appellate Court has further held that there was no dispute regarding the existence of the document and has further held that the document in question was inconsequential in respect of the present litigation. This Court can safely gather that the aforesaid application was filed by the appellant only with a view to protract and delay the disposal of the present litigation. In the absence of showing any reason whatsoever for not producing the said document earlier, the appellant plaintiff cannot seek adduction of additional evidence at the appellate stage as a matter of course or right. 24. The suit of the appellant plaintiff is essentially based on the plea of adverse possession and such a suit is legally untenable in view of the law laid down by the apex Court in the case of Gurudwara Sahib (supra). 25. It is a fact that both the Courts below have recorded concurrent findings of fact to the effect that (i) the plaintiff has failed to prove his title, possession and adverse possession over the suit property and (ii) the plaintiff was the sub-tenant of Manoharlal and, therefore, he was bound by the judgment dated 24.11.1965. Additionally, the lower appellate Court has also held that the same case set up by the plaintiff appellant in the execution proceedings by way of filing the objections has been dismissed upto this Court and, therefore, the present suit is barred on the principles of estoppel and res-judicata. However, no substantial questions of law have been formulated in respect of the aforesaid findings recorded by the Courts below. 26. This Court, before dismissing the appeal, as there are concurrent findings of fact would like to observe that the title holder of the property who sought a decree of eviction, which was granted to him way back in the year 1965 is fighting for execution of judgment and decree dated 24.12.1965 till date. All kinds of hurdles have been created in the matter of execution and thereafter a vexatious litigation has further delayed the matter. In the light of the aforesaid, this Court is of the considered opinion that the judgment and decree 24.12.1965 deserves to be executed forthwith. The trial Court is directed to hold day-to-day trial in respect of the judgment and decree dated 24.12.1965 for executing the same. In the light of the aforesaid, this Court is of the considered opinion that the judgment and decree 24.12.1965 deserves to be executed forthwith. The trial Court is directed to hold day-to-day trial in respect of the judgment and decree dated 24.12.1965 for executing the same. The trial Court will not grant any adjournment in the matter and if there is any need for grant of an adjournment, the Court shall record reasons in writing. With the aforesaid, the present second appeal is dismissed.