The appellate court ruled that a plaintiff must clarify the status of possession and seek a declaration of ownership to recover possession, failing which the suit is not maintainable.

JUDGMENT :

ANUBHA RAWAT CHOUDHARY, J.

Heard learned counsel appearing for the appellant.

2. This second appeal has been filed against the judgment and decree dated 31.05.2018 (Decree sealed and signed on 14.06.2018) passed by the learned District Judge-I, Dhanbad in Civil Appeal No. 66 of 2017 whereby the judgment and decree dated 06.06.2017 (Decree sealed and signed on 15.06.2017) passed by learned Civil Judge (Senior Division)-VI, Dhanbad in Title Suit No.123 of 2009 has been reversed.

3. The learned counsel for the appellant submitted that the matter arises out of Title Suit No.123 of 2009 seeking recovery of possession of the suit property. The plaintiff had asserted that the defendants were in permissive possession of the suit property. The suit was decreed by the trial court. The defendants filed Civil Appeal No.66 of 2017 and the decree in the title suit has been set aside on the ground that Title Eviction Suit No.49 of 2002 filed by the plaintiff against the defendants was pending and therefore, the stand taken by the plaintiff in the Title Eviction Suit No. 49 of 2002 seeking eviction under the building control laws on the ground of default in payment of rent being inconsistent with the plea raised by the plaintiff in the title suit asserting that the defendants were in permissive possession of the suit property.

4. The learned counsel further submitted that a plea was raised before the learned trial court in the plaint itself that a petition was filed seeking withdrawal of the title eviction suit, but the same was not withdrawn by that time, as the defendants had not filed their response to that application seeking withdrawal of the title eviction suit. It is submitted that in the present case, one I.A. No.9077 of 2023 has been filed seeking to adduce additional evidence before this Court by stating that the title eviction suit was permitted to be withdrawn vide order dated 01.07.2009, which was certainly passed after the filing of the present suit.

5. The learned counsel submitted that in the impugned judgment passed by the first appellate court, it has been recorded that at the time of passing of the judgment in the title suit, the title eviction suit filed by the plaintiff bearing Title Eviction Suit No.49 of 2002 was still pending. The learned counsel submitted that the interlocutory application seeking to lead additional evidence reveal that title eviction suit was withdrawn as back as on 01.07.2009.

6. However, during the course of hearing, it is not in dispute from the side of the appellant that the order permitting withdrawal of title eviction suit was not brought on record before the learned first appellate court. It is submitted that to bring the order of withdrawal on record, the interlocutory application for additional evidence has been filed before this second appellate court.

7. This Court finds that the plaintiff had filed the suit for recovery of possession by directing the defendants to vacate the portion of the house mentioned in Schedule B and C of the plaint which were part of the Schedule A property. The plaintiff and Defendant Nos. 1 and 2 are own brothers and Defendant No. 3 is the nephew of the plaintiff.

8. It was the case of the plaintiff that the entire property mentioned in Schedule A of the plaint was under the exclusive title and possession of the plaintiff by virtue of registered sale deed dated 25.10.1972 from Rama Devi and the plaintiff had constructed a double storied building by taking loan from the provident fund and from his employer. After construction, he permitted his three brothers to remain in a portion of Schedule A of the house as gratuitous licensee and later on, Defendant No.3 requested the plaintiff to permit him to live in Schedule A house for some time and the plaintiff granted the permission. The portion of the property under possession of Defendant Nos. 1 and 3 has been shown in Schedule B of the plaint and the portion of the property occupied by Defendant No.2 has been in Sc