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Mr. J. K. Sanwarwala Ms. F. Anjum Heard on : 15-09-2016 & 19-09-2016 Judgment on : 26-09-2016 Indrajit Chatterjee, J.:- This is an application under Article 227 of the Constitution of India wherein this petitioner/landlord has assailed the order no. 350 dated 18th June, 2016 passed by the learned Judge, 5th Bench, Small Causes Court at Calcutta passed in Misc. Case no. 300 of 2015 arising our of Ejectment Execution Case No. 666 of 2000 which arose out of Ejectment Suit No.501 of 1961.

Due to some family disturbance the execution proceeding could not be drawn up before 1974 and the joint owners/decree holders initiated execution proceeding before that court being Ejectment Execution Case No.308 of 1974 which was later on transferred to the Small Causes Court at Calcutta and was numbered as Ejectment Execution Case No.666 of 2006 which is now pending before the 5th Judge, of that court. Meanwhile in the year 1991 the judgment-debtor, Purna Chandra Chatterjee, of that Ejectment Suit died and the present Opposite Party Nos.2 to 6 were substituted. Ratan Mohata that is the father of the petitioner died on 5th of February, 2000. After the death of the Ratan Mohata disputes arose between his legal heirs and the other decree holder Brij Ratan Mohata. The matter was referred to one Arbitrator. With the intervention of the family friends such disputes were settled and a memorandum of family settlement was made on 16th July, 2001 between the legal heirs of Ratan Mohata and as per that family settlement the suit property was extensively allotted to the present petitioner and his mother Sushila Devi Mohata (since deceased). The mother of the petitioner died on 16th July, 2007 and as per her last Will and Testament dated 10th November, 2003 this petitioner became the exclusive owner of the suit property by virtue of one probate issued as per that last Will left by that Sushila Devi Mohata. As per order dated 29th November, 2007 the executing court substituted the present petitioner as the decree holder in place of the original decree holders. The writ of execution was issued by the executing court but when the Bailiff went to the suit property he found one Indradeb Chatterjee was doing business from the shop room and the Bailiff was resisted for which possession could not be delivered. On 23rd November, 2015 this Opposite Party No.1 filed one petition under Order XXI Rule 97, 98, 99, 100 & 101 read with Section 151 of the Code of Civil Procedure in that execution proceeding and that petition was registered as Misc. Case No.300 of 2015 wherein this Opposite Party No.1 claimed that Sutanu Chatterjee was a tenant of the suit property under the original owners Ratan Mohata and Brij Ratan Mohata and that Sutanu Chatterjee was running a business of eating house under the name and style of "Food Front" in the suit property and during the continuance of the tenancy sometime in the year 2006 this Opposite Party No.1 entered into an understanding with that Sutanu Chatterjee (Opposite Party No.3) to continue the business jointly and at the request of the Opposite Party No.3 the decree holders started issuing rent bills in the joint names of Opposite Party Nos.1 and 3 since July 2012.

He took me to the application giving rise to Misc. Case No. 300 of 2015 to show that actually this opposite party no. 1 is claiming through the opposite party no. 3 and that he came into the possession of the suit property only in the year 2006 when the Ejectment Execution Case No. 666 of 2000 was already in force and, as such, Rule 102 of the Code of Civil Procedure is a bar to the claim of the opposite party no. 3. He further submitted that the maintainability of an application can very well be challenged before the court. He took me to illustration given to Order 7 Rule 11 of the Code of Civil Procedure. He also contended that the rent receipts in such a case cannot serve the purpose of the opposite party no.1 as in the instant case, the possession allegedly came through the opposite party no. 3 who was then already facing the execution proceeding. He further contended that the delivery of possession which is one essential ingredient of Section 107 of the T.P. Act being absent in this case as admittedly this petitioner was not in possession of the property and no lease can be created in view of that Section unless the delivery of possession is followed.