IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1368 of 2009 Bindeshwari Poddar son of late Ramdeo Poddar resident of at & P.O. Bariyahi Bazar P.S. Bangaon Dist. Saharsa Plaintiff-petitioner Versus 1. Gita Devi w/o late Satya Narayan Sah 2. Pappu Sah 3. Manoj Sah 4. Pintu Sah 5. Mukesh All sons of late Satya Narayan Sah resident of at & P.O. Bariyahi Bazar P.S. Bangaon Dist. Saharsa Defendants-Opposite parties ---------- For the petitioner: Mr Amrit Abhajit, Advocate Mr Upendra Yadav, Advocate Mr Manoj Kurmar Gupta, Advocate For the Opposite parties: Mr Nilendu Kumar Choudhary, Advocate -------------- 05/ 11.11.2009 This civil revision is being heard at this stage at the instance of learned counsel for both the parties. 2. This civil revision has been filed by the plaintiff-petitioner challenging order dated 29.06.2009 by which learned Munsif, Saharsa allowed the petition of defendants-opposite parties for restoration of possession in Execution Case no. 3 of 2004. 3. The case has a chequered history as the plaintiff-petitioner had filed Title Suit no. 83 of 1989 for eviction of Satya Narain Sah the predecessor of opposite parties on the ground of his bona fide personal requirement of the suit property which is a residential house. 4. The said suit was decreed ex parte on 17.03.1990 (annexure-1) by learned Munsif, Saharsa, whereafter the plaintiff- petitioner filed Execution case no. 7 of 1990 for execution of the aforesaid decree and finally delivery of possession was effected in his favour on 13.07.1990. - 2 - 5. It transpires that the defendants-opposite parties filed Misc. case no. 15 of 1990 under the provision of Order IX rule 13 of the Code of Civil Procedure which was allowed by the learned Munsif, Saharsa on 07.08.1998 and the ex parte decree in the eviction suit was set aside. The said order was never challenged by the plaintiff-petitioner. 6. Thereafter proceeding of the Title Suit no. 83 of 1989 re- started but on 12.12.2003 (annexure 3) the plaintiff- petitioner filed an application for withdrawal of the title suit stating that although he was the owner and landlord of the suit premises, he did not require the suit premises at that time. The said application was allowed and the suit was dismissed as withdrawn by the learned Additional Munsif, Saharsa vide order dated 19.12.2003 (annexure 3/1). This order was also not challenged by anyone. 7. It further transpires that on the basis of the aforesaid dismissal of the suit for eviction, Execution case no. 3 of 2004 (annexure 4) was filed by the defendants-opposite parties for reversal of the delivery of possession in favour of plaintiff-petitioner on 13.07.1990 and also for recovery of possession of the suit premises. To the said execution case the plaintiff- petitioner filed a rejoinder on 19.05.2007 (annexure 5). The learned Munsif, Saharsa after considering the matter in detail found that the eviction suit having been dismissed as withdrawn the possession has to be delivered back to the defendants-opposite parties and directed issuance of delivery of possession against the plaintiff in favour of the defendants vide his order dated 29.06.2009. This order has been challenged by the plaintiff-petitioner in the instant - 3 - civil revision. 8. Learned counsel for the plaintiff- petitioner has vehemently challenged the aforesaid order passed by learned Munsif, Saharsa in Execution case no. 3 of 2004 inter-alia claiming that Title Suit no. 51 of 1990 which was filed by the predecessor-in-interest of the opposite parties for declaration of his title in which the opposite parties were substituted after his death, was dismissed by the learned Subordinate Judge, Saharsa vide judgment and decree dated 21.06.2003 and 01.07.2003 (annexures-2 & 2/1) holding that the petitioner had title and possession over the suit property and the opposite parties were only tenants. In the said circumstances, he claims that the opposite parties were not entitled to any order for recovery of possession. 9. On the other hand, learned counsel for the opposite parties submits that the said judgment and decree of Title Suit no. 51 of 1990 had not attained finality rather it was challenged by the opposite parties in Title Appeal no.21 of 2003 which was allowed on 31.08.2007 setting aside the judgment and decree of Title Suit no. 51 of 1990. Against the aforesaid judgment and decree of the learned lower appellate court the petitioner has filed Second Appeal no. 283 of 2007 which is pending in this court. 10. Considering the averments made by learned counsel for the parties and the materials on record , it is quite apparent that Title Suit no. 83 of 1989 filed by the petitioner for eviction of the opposite parties on the ground of personal necessity was earlier decreed ex parte but when the said ex parte decree was set aside and the eviction suit started - 4 - afresh plaintiff himself withdrew the said suit on the ground that he had no necessity of the suit premises and accordingly the said suit was dismissed as withdrawn on 19.12.2003.In these circumstances, delivery of possession effected on 13.07.1990 by the executing court in Execution case no. 7 of 1990, which was based upon the ex parte decree dated 17.03.1990, can not be held to be legal and valid because after setting aside the judgment dated 17.03.1990 and the withdrawal of the Title Suit no. 83 of 1989 the said ex parte decree had become a nullity and on the basis of a decree in nullity, if any execution case is proceeded with, it would also amount to nullity. In the said circumstance, if delivery of possession had been effected on the basis of a decree which had become nullity the said possession had to be reverted back to the position in which parties were before the ex parte decree was passed. Thus, the learned court below was quite justified in passing the impugned order allowing the claim of the opposite parties for recovery of possession in the aforesaid facts and circumstances. 11. In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned order of the learned court below nor does it find any jurisdictional error therein. Accordingly, this civil revision is dismissed. 12. However, since the earlier eviction suit was withdrawn as according to the plaintiff he had no necessity at that time, the plaintiff would be at liberty to file any other eviction suit on any ground prescribed under section 11 of the Bihar Buildings (Lease, Rent & Eviction ) Control Act,1982 which has to be decided afresh in - 5 - accordance with law without being effected by the withdrawal of the earlier eviction suit but the court will have to consider the effect of the decisions in Title Suit no. 51 of 1990 and appeals arising out of the judgment and decree passed therein. shahid (S.N.Hussain, J)