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The Kaleswarar Mills, Ltd. By Agent, ... vs A.P. Govindaswami Naicker And Ors. on 22 August, 1945
cites
Bengal Tenancy Act, 1885
Unni Moidin vs Pocker And Ors. on 12 August, 1920
4. When an application is made by the holder of a decree for possession of im-moveable property under Order 21, Rule 97, if the Court is satisfied that the resistance or obstruction was occasioned by a person claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court shall make an order dismissing the application. The party against whom an order is made under this rule may institute a suit to establish the right which he claims to present possession of the property; but subject to the result of such suit the order shall be conclusive. Once a year is allowed to elapse, the order operates as a conclusive adjudication of the right to the property. The decision reported in Unni Moidin v. Pocker (1920) 39 M.L.J. 626: I.L.R. 44 Mad. 27 is a direct authority for that proposition. It was there held that the scope of a suit under Rule 103 of Order 21, Civil Procedure Code is not the determination of the mere question of possession of the parties concerned but the establishment of the right or title by which the plaintiff claims the present possession of the property.
Ambika Charan Bhakta vs Ram Prosad Chatterjee And Ors. on 6 April, 1925
He relied on the decision of the Calcutta High Court reported in Ambica Charan Bakta v. Ram Prosad Chaterjee (1925) 30 C.W.N. 163. On an examination of the facts of that case it will be found that it has no bearing on the facts of the present case. There the plaintiffs were landlords who had obtained a decree for arrears of rent and in execution of that decree had purchased the holding and taken possession. Later they ' were dispossessed by an order of Court passed at the instance of the defendants who claimed possession of the property on their own account and not on behalf of the judgment-debtors. The plaintiffs, presumably abandoning their rights under their purchase in the execution sale, filed a suit in ejectment on the ground that their tenants had wrongfully parted with the holding and thereby contravened the provisions of the Bengal Tenancy Act and the transferees were liable to be ejected. The order passed by the Court in execution proceedings was sought to be relied on to defeat the plaintiffs' claim for recovery of possession. It was then pointed out that the causes of action for the two suits, that is, the one contemplated under Order 21, Rule 103 and the suit as actually framed were quite different. The plaintiffs as auction purchasers might have been aggrieved by the adverse decision against them in the proceedings under Order 21, Rule 100, but they had abandoned all their rights under the execution sale and they had instituted a suit relying on the right to which they became entitled under the Bengal Tenancy Act by reason of the action of their tenants. But in the present case before us, the title on which the plaintiff could rely to oust the seventh and eighth defendants from possession on the date of the adverse order in 1934 was in no way different from the title on which the present suit has been brought, that is, the title based on the sale deed of 1930.
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