Sudhindra Mohan Guha, J.
1. This is an appeal by the applicant Friends' Bureau under Order 21 Rule 100 which lost in both the Courts.
2. The case of the petitioner was that it entered into possession of the property in dispute at holding No. 1 Shankaripara Ghat Lane, Kotrung P. S. Uttarpara in the District of Hooghly by virtue of a licence granted by one G. Paul in November, 1960. The petitioner had been possessing the suit property by manufacturing bricks therein. It was in uninterrupted peaceful continuous use, of enjoyment and possession of the entire land in question. Such possession was openly and adversely to the interest to its owner Corporation of Calcutta. Thus the petitioner claimed to have acquired right, title and interest on the principle of adverse possession in the suit land along with the structures, buildings, godown. garages staff quarters standing thereon, G. Paul who granted licence had at that time no manner of right, title and interest in the suit land and he was not a party to T. S. 78 of 1947 and to the compromise decree passed therein on 12-12-49. Sri G. Paul was also not a judgment-debtor and thus the possession of the petitioner was always adverse to the Corporation of Calcutta. On 30-4-75 at about noon men of Calcutta Corporation with labourers, armed force and police officers trespassed in the suit land destroyed and ransacked the valuable properties and damaged all belongings of the petitioner without prior notice. Objection was filed before the Nazir of the Court who could not deliver vacant possession of the suit land to the Corporation of Calcutta The petitioner was in fact in possession of the suit property till 3-5-75, when it was forcibly dispossessed by the Corporation of Calcutta. Under the above circumstances the petitioner claimed to be put in possession.
3. This application was opposed by the Corporation of Calcutta. It was stated that the petitioner had no concern with the brick kilns Nos. 4 and 6 of the Kotrung Brickfield the possession of which had been delivered to the decree-holder Corporation of Calcutta on 30-4-75. It was further stated that Shri G. Paul was a trespasser in suit land and he had no right to grant license in respect of the suit land to any one including the petitioner. The petitioner was characterised as a benami firm of Shri G. Paul.
4. The opposite parties Gangadhar Saha and Satyajit Mitra also asserted that possession had been delivered to the decree-holder Corporation of Calcutta on 30-4-75.
5. On trial it is found by the trial Court that the petitioner Friends' Bureau had no physical existence and it was only a paper transaction, so there cannot be possession by it legally or adversely of any property. It is also found by the trial Court that the application was not maintainable in view o the fact that the petitioner had earlier started a regular title suit in the Munsif's Court Serampore.
6. The findings of the trial Court were affirmed in appeal.
7. Thus the order of the First Appellate Court has been assailed before this Court in Second Appeal.
8. It is argued by Mr. Mrigen Sen on behalf of the appellant that the learned Court below failed to appreciate the overwhelming documentary evidence in its proper perspective, which established beyond all doubts as to the independent possession of the appellant in the suit property. Reference is made to the letter dated 15-10-60 by Girija Prasad Paul to Messrs. Friends' Bureau granting licence for the use of the Brickfields at 1, Shankaripara Ghat Lane, (Ext: 1). Ext. 15 was the books, of accounts. No reliance was placed on these documents by the learned Courts below because these could be brought into existence at any time. Ext. 3 was the agreement dated 1-2-72 executed by and between four partners of the Firm Friends' Bureau. The Firm Friends' Bureau was registered by the Registrar of Finns on 25-7-63. Exts. 4 to 4 (b) were receipts granted by G. Paul for payment of licence fees for the years 1962-63, 1970-71 and 1971-72. Such payments were not corroborated by Books of accounts of G. Paul. Exts. 7 series were municipal licences for professions, trades etc. granted by the Corporation of Calcutta to Friends' Bureau for the years 1960-61 to 1975-76 for carrying on business at 8/2, Hastings Street, Calcutta. These have no reference to the Brickfield at 1, Shankaripara Ghat Lane. Ext. 8 series were receipts showing payment of sales tax by G. Paul on behalf of Friends' Bureau of 8/2 Hastings Street, Calcutta for the years from 1952 to 1974. Exts. 9 and 9 (a) were the licences under the West Bengal Fire Service Act 1950 in March 1965 and March 1973 respectively. These had reference to 1, Shankaripara Ghat Lane. Ext. 10 was a receipt dated 15-1-74 granted by the Coal Mines Authority in favour of Friends' Bureau for supplying Coal to it. Exts. 11 to 11 (b) were money receipts granted by the Eastern Railway. Ext. 12 was the certificate of Registration dated 29-8-61 as a dealer for the business at 8/2 Hastings Street, Calcutta-1. There was a note that the dealer kept a Brickfield at 1. Shankaripara Ghat Lane, P.O. Kotrung, Dist, Hooghly.
9. The background of the case and the conduct of G. Paul the alleged grantor of the licence should be taken into consideration along with the evidence on record for ascertaining whether the petitioner was in possession of suit property in its own right.
10. G. Paul was a sub-lessee in respect of brick kilns Nos. 4 and 6 of Messrs. S. S. & Co. who again was a sublessee under Kishori who took lease of the brickfield at Kotrung from the Corporation of Calcutta. Thereafter, on 23-11-46 G. Paul purchased the interests in the brick kilns Nos. 4 and 6 when the Corporation of Calcutta filed a suit against Kishori being Title Suit No. 78 of 1947 in the Second Court, Sub-Judge, Hooghly for recovery of possession which was decreed on compromise.
11. On 18-4-1951 the Corporation of Calcutta filed Title Execution Case No. 15 of 1951, a notice of which under Order 21, Rule 22, C.P.C. was served upon G. Paul on 26-4-1951 as the legal representative of the judgment-debtors Banerjees. On 13-6-1951 G. Paul appeared as Managing Agent and Director of 'Reliance Development and Engineering Co,' in Title Execution Case No. 15 of 1951 stating that he had transferred his interest to M/s. Reliance Development Engineering Ltd. on 30-11-1948. His objection however, was rejected by the Executing Court on 13-5-1951. This order was upheld by the High Court in Civil Rule No. 1554 of 1951 on 19-2-1952.
12. The decree-holder on 3-7-1952 filed an application in the Executing Court stating that G. Paul and his Company had been resisting and obstructing the decree-holder in getting possession of the kilns Nos. 4 and 6 in the Kotrung Brickfields. An objection was filed by G. Paul on 26-7-1952. The decree-holder's application under Order 21, Rule 97 and the Execution Case were dismissed on 10-2-1953. There was an appeal to the High Court being F-M.A. 281 of 1953 which was allowed on 30-5-1955. It was held 'the decree was a decree against the head lessees and it was binding upon all subsequent interests created by means of sub-leases. It was, therefore, binding on G. Paul also. The decree-holder was entitled to execute the decree or to proceed against G. Paul and/or his transferee and obtain possession of the land in question (Ext. 5). An application for leave to the Supreme Court was dismissed on 21-2-1958. Thereafter, on 14-11-1958 G. Paul filed a suit for declaration that the decree passed in Title Suit No. 78 of 1947 of the Second Sub-Judge Court, Hooghly was null and void and not binding upon him, being Title Suit No. 185 of 1958. During the pendency of the suit Ext 1, the licence was said to have been granted on 20-10-1960. On the institution of the suit the Execution Case was stayed. The suit filed by G. Paul was dismissed on 20-3-1961. The appeal against the decree of dismissal was allowed on 21-5-1964. Then the Corporation of Calcutta preferred a Second Appeal to this Court being S. A. 1918 of 1965 which was allowed on 9-9-1966. The suit was ultimately dismissed. Till then the Execution Case was stayed.
13. G. Paul then went to the Supreme Court and the order passed by this Court was upheld by the Supreme Court on 18-8-1971. The decision was reported in : AIR1972SC2391 .
14. Thereafter, on 22-10-1971 the decree-holder filed an application for vacating the order of stay in the Execution Case. G. Paul also filed an objection to the said application but it was disallowed on 23-10-1971. Thereafter, G. Paul moved this Court in revision by Civil Revision No. 3081 of 1971 and Civil Rule No. 3491 of 1972.
15. Thus, having failed in the execution proceedings G. Paul moved this Court and obtained an interim order against the Corporation of Calcutta in C. R. No. 2266(W) of 1973. But that was also vacated on 20-10-1973. Then he preferred F.M.A.T. No. 4100 of 1973. He also obtained another Rule being C. R. No. 2427 (W) of 1974 but the Rules were discharged.
16. On 6-7-1974 G. Paul filed an application under Section 151 of the C.P.C. in the Executing Court but that application was rejected on 26-8-1974. Thereafter, he came to this Court by Civil Rule No. 3284 of 1974 but that was discharged on contest with costs on 21-2-1975. Thereafter, on 15-3-1977 he filed an application before the Executing Court, which being rejected he moved the High Court and the Supreme Court. Thus all his efforts to obstruct the decree-holder failed and the Corporation of Calcutta took delivery of possession of property in question on 30-4-1975.
17. It may be mentioned in this connection that during all these proceedings or litigations there was no whisper that G. Paul was in fact not in possession of the suit property and he had granted licence to Messrs Friends' Bureau which was in fact in possession of the suit property. Again, it would appear that on the institution of Title Suit No. 185 of 1958 the execution was stayed from 14-11-1958 till the disposal of the Supreme Court of the appeal on 18-8-1971. Thereafter, G. Paul also moved the First Appellate Court and this Court against various orders passed by the Executing Court. Even on 17-3-1975 G. Paul filed a petition in the Executing Court stating that he had applied to the High Court for leave to move the Supreme Court. Again, according to the petitioner, four persons were carrying on business under the name and style of Friends' Bureau. Kalyani Kazi was the daughter of G. Paul and Swapan Kumar Mallick was the son of K. K. Mallick, Attorney of G. Paul. Another partner G. P. Sen was an employee of Messrs Reliance Development Engineering Ltd. which had been set up by G. Paul. He also acted in so many ways for and on behalf of G. Paul in various suits and proceedings concerning the disputed brickfields. Again, G. Paul himself filed so many petitions and affidavits in connection with different proceedings including the Title Execution Case No. 15 of 1951 stating that it was he who at all material time since 1942 had been carrying on business of manufacturing bricks and other allied products in suit property.
18. It is pointed out by Mr. Bhupendra Dey, the learned Advocate for the respondent Nos. 2 and 3 that the electric connection at 1, Shankaripara Ghat Lane stood in the name of G. Paul and the telephone connection was all along in the name of Reliance & Co.
19. Mr. Sunil Kumar Basu, the learned Advocate for the respondent No. 1 contends that even after the possession of the disputed brickfields was delivered to the decree-holder, when the Corporation of Calcutta invited applications from persons intending to take lease of this brickfield, G. Paul by his application dated 10-5-1975 (Ext. A) before the Corporation of Calcutta prayed for permission to run the brick manufacturing licence in the suit property. It was stated therein that he was all along in possession of this brickfield till the delivery of possession through Court on 30-4-1975 and 3-5-1975.
20. It was pointed out on behalf of the respondents that the petitioner though claimed to be in possession of the business for manufacturing bricks could not produce a single trade licence from Kotrung Municipality.
21. There was also no dispute to the fact that Nazir while executing the Writ for delivery of possession found Shri G. Paul present on the suit property. He was also physically present in the Court room during the hearing of the petition under Order 21 Rule 100 filed by the petitioner.
22. Thus on the materials on record the learned First Appellate Court opined that it was G. Paul who in order to undo the effect of the decree and that of the execution of the decree had set up the present petitioner Friends' Bureau as the claimant under Order 21 Rule 100. We are also fully in agreement with the learned Courts below that the licence in favour of the petitioners was nothing but a paper transaction. The learned Courts below were amply justified in not relying on this faked document. The natural and inevitable conclusion is that it is G. Paul who was in actual possession of the property till delivery of possession through Court on 30-4-75. It was also established that he filed this application in the name of Friends' Bureau, as he had resisted execution in the name of Reliance Ltd.
23. In the face of the averments made in the application under Order 21, Rule 100 and in view of the evidence adduced in the case this application was not maintainable. It was the specific case of the petitioner that the Nazir failed to give delivery of possession under the Writ on 30-4-1975, but the petitioner was illegally dispossessed by the men of the decree-holder on 3-5-1975. In order to avail of the proceeding under Order 21, Rule 100 a person other than the judgment-debtor must come with the plea that he had been dispossessed by the decree-holder in execution of the decree,
24. In view of the foregoing findings we need not enter into the question whether the petitioner could acquire any title to the suit property by adverse possession. But we would dispose of the point in brief as both parties referred to certain decision on the point Before doing so we like to point out that the petitioner before filing the present application on 27-5-1975 started a suit being T. S. No. 155/1975 (subsequently numbered as J. S. 184/1978) for a declaration that it had acquired absolute title to the suit property by adverse possession. But subsequently the petitioner filed an application under Order 23, Rule 1 C. P. C. for withdrawing the suit and/or abandon its entire claim against all the defendants.
25. Mr. Sen refers to the decision in the case of State of West Bengal v. The Dalhousie Institute Society, reported in : AIR1970SC1778 and contends that the petitioner was inducted to the suit property under the licence. Ext. 1 which was invalid but still the petitioner by open, continuous and uninterrupted possession and enjoyment of the suit property for more than 12 years acquired title to the same by adverse possession. In the case under reference the Institute came to possession under an invalid grant by the Government as such by possession over 70 years it acquired title to the land adversely against the Government. But in the instant case the licence had not been granted by the Corporation of Calcutta, so the petitioner under an invalid licence could not claim title to the land adversely against the Corporation of Calcutta. For the self-same reasons the decision in the case of Collector of Bombay v. Municipal Corporation of the City of Bombay reported in : 1SCR43 -- next referred to by Mr. Sen would not be applicable to the facts and circumstances of the instant case.
26. Both Mr. Bhupendra Kumar Dey and Mr. Sunil Kumar Basu, the learned Advocates for the respondents refer to the decision in the case of Girija Prasad Paul v. The Corporation of Calcutta, reported in : AIR1972SC2391 . At page 2395 of the report their Lordships of the Supreme Court observe as follows : 'In the result, it is clear that both the statutes on which the plaintiff based his right to tenancy, do not help him. It would, therefore, necessarily follow that he was liable to be evicted in execution of the decree in Title Suit No. 78 of 1947. He first resisted the decree in the name of defendant No. 6 and after that attempt failed, he started this new litigation in 1958 keeping the Corporation out of possession for all the period. Since the plaintiff's claim on merits fails, his suit was rightly dismissed.' Both of them contended that Mr. G. Paul left no stone unturned in resisting and obstructing the execution of the decree, and now after delivery of possession has set up the present petitioner for re-entry on the plea of an earlier licence alleged to have been granted by him.
27. Mr. Dey also refers to the decision in the case of Mannalal v. Radhey Shyam reported in AIR 1974 Raj 16, wherein it is held that a licensee cannot take the plea of adverse possession : But the petitioner contends that his possession from the very date of entry was adverse, as the licence was invalid.
28. Mr. Basu also refers to the decision in the case of Rahim Bux Paramanik v. Osman Gani Sheikh reported in (1947) 51 Cal WN 306 wherein it is held that there is no continuance of the adverse possession against the landlord as against an assignee of a lease. Thus according to him even if the petitioner be accepted in possession for arguments' sake, it being an assignee or transferee from G. Paul cannot take the plea of adverse possession against the Corporation of Calcutta, the owner of the land.
29. Mr. Basu lastly contends that the licenses Exts. 9 & 9 (a) were not sufficient, the petitioner was to obtain a trade licence under Section 370 of the Bengal Municipal Act, 1932, Licence under Fire Act cannot be a ground for exemption from taking a trade licence. In support of his argument he relies on the decision in the case of Corporation of Calcutta v. North Bihar Saw Mill reported in : AIR1967Cal64 .
30. In the facts and circumstances of the case we are also of view that the plea of adverse possession cannot be taken against a party which was kept out of possession by the process of law or had no right of entry in consequence of the order of the Court In this case the decree-holder could not take the writ of delivery of possession earlier because the execution case itself was stayed by the order of the Court. It is well established principle that prescription does not run against a party which is unable to act.
31. In the result, we hold in agreement with the learned Courts below that petitioner firm was set up by G. Paul who was in possession of the suit property till dispossessed through Court on 30-4-1975. We further hold that the plea of adverse possession cannot be sustained in law.
32. This appeal is accordingly dismissed with costs. Hearing fee assessed at 5 gold mohurs to each set of party. The orders passed by the Courts below are confirmed.
N.C. Mukherji, J.
33. I agree.