The Appellate Court erred in denying recovery of possession despite confirming the plaintiff's title, emphasizing that possession without title is unlawful.

JUDGMENT :

SASHIKANTA MISHRA, J.

The plaintiff is the appellant against a reversing judgment. His suit for declaration of right, title, interest and recovery of possession of the suit land was decreed by the trial court without granting the relief of recovery of possession. The appeal filed by the plaintiff against the refusal of the relief of the recovery of possession was dismissed by the 1^st Appellate Court and the entire decree, declaring the title of the plaintiff was set aside exercising power under Order XLI Rule 33 of C.P.C. Said judgment and decree are impugned in the present Second Appeal.

2. For convenience, the parties are referred to as per their respective status before the court below.

3. The plaintiff’s case, briefly stated is that the suit properties originally belonged to Bimal Chandra Ghose and Jitendranath Ghose being recorded in their names in stitiban status. They sold the suit property to one Nityananda Grahachrya for legal necessity vide RSD dated 25.02.1980 and delivered possession. After death of Nityananda, his son mutated the suit property in his favour as per order passed by the Tahasildar, Jagatsinghpur in Mutation Case No.5111 of 2002. Nityananda had constructed a pucca house over the suit land and was residing therein with his family. Subsequently, he went to Bhopal with his family to earn his livelihood. His son Susanta returned to the native village after the super cyclone of 1999 and resided in the suit house. A thatched dwelling house of defendant Nos.1 to 5 existed towards the eastern side of the pucca house of Nityananda, which was demolished in the super cyclone. On request by defendant No.1, Susanta permitted his family members to reside in the pucca building temporarily. The defendant Nos.1 to 5 constructed a thatched house on their land and started residing there after vacating the suit house. After death of Nityananda in 1999, Susanta started serving in a firm at Bhopal and resided there with his family members. In order to meet the expenses of his sister’s marriage, Susanta sold the suit land along with the building to the plaintiff vide RSD dated 06.10.2009 and delivered possession. The plaintiff mutated the land in his name as per order passed by the Tahasildar, Raghunathpur in Mutation Case No.120 of 2010. He thereafter left for Arunachal Pradesh where he was working. It is alleged that taking advantage of his absence, defendant Nos.1 to 5 forcibly entered into the suit building. Moreover, defendant No.1 initiated a criminal case under Section 144 of Cr.P.C. against Susanta, who had no subsisting interest at that time. But the plaintiff came to know about the same and the fact of forcible possession of the building taken by defendant No.1. Due to intervention of village gentries, defendant No.1 agreed to vacate the suit land but on the ill advice of some mischievous mongers of the village, he did not. Hence, the suit.

4. Defendant Nos.1 to 5 contested the suit by filing their written statement, inter alia, pleading that the suit is bad for non-joinder of the brother, sister and mother of defendant No.6. Moreover, consolidation operation being in progress, the suit is hit under Sections 4 (4) and 51 of the OCH & PFL Act. The title of the plaintiff and his vendor was also questioned. It was specifically pleaded that neither the plaintiff nor his vendor nor his vendor’s vendor was ever in possession. The nature of the land was ‘Bajyapti Madhaya Satwadhi