IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.203 of 2007 ----------- 1. Nand Kishor Singh, son of Duduni Singh 2. Bachani Devi alias Bachhi Devi, w/o Dudani Singh Both are resident of village Budhanpurwa, P.S. Buxar, District Buxar. ….Defendants 2nd set-Appellant-Appellants versus 1. Ganesh Prasad, son of Ram Nagina Prasad 2. Most. Tileshswari Devi, wife of late Keshwa Prasad 3. Om Prakas 4. Arun Kumar 5. Ajay Kumar All (3 to 5) are sons of late Keshwa Prasad. All residents of village Mathila, P.S. Dumraon, District Buxar, At present respondents no. 2 to 5 residing at Dehri-on-Sone, P.S. Dehri, District Rohtas. ….Plaintiffs-Respondents Ist Set-Respondents Ist set. 6. Mangal Singh 7. Ram Lakhan Singh Both are sons of late Duduni Singh 8. Geeta Kumari, d/o late Duduni Singh All are resident of village Budhan Purwa, P.S. Buxar, District Buxar 9. Rekha Devi, w/o Chaman Singh, Resident of village Gunja Dehri, P.O. Rup Sagar, P.S. Nava Nagar, District Buxar. 10. Sandhya Devi, w/o Arun Singh, Resident of village Deorar, P.S. Mudiyari, District Ballia (U.P.) ……Defendants Ist Set-Resp9ndents 2nd set-Respondents 2nd set. ----- For the Petitioners : Mr. Jitendra Prasad Singh, Advocate. For the Opp. Parties: None ----- 09/ 11.12.2009 Heard learned counsel for the appellants. 2. This second appeal has been filed by defendants 2nd set-appellants-appellants challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit No. 16 of 1991, which was filed by the plaintiffs-respondents 1st set- respondents 1st set for declaration of their title, confirmation of possession and alternatively for recovery of possession as well as 2 for injunction and other ancillary reliefs. The said suit was decreed on contest by the learned Munsif-II, Buxar vide his judgment and decree dated 30.03.2001 declaring the plaintiffs’ title, confirming their possession and passing an order of injunction against the defendants. 4. Against the aforesaid judgment and decree of the trial court, the defendants filed Title Appeal no. 08 of 2001, which was also dismissed on contest by the learned Additional District Judge-cum-Fast Track Court-I, Buxar, vide his judgment and decree dated 31.08.2007. Against the said judgments and decree of both the learned courts below the defendants have filed the instant second appeal. 5. Although learned for the appellants vehemently challenges the aforesaid judgments and decree of the learned courts below, but it is quite apparent from the materials on record including the impugned judgments and decree that both the learned courts below have very carefully considered the pleadings and evidence of the parties as well as the specific provisions of law and have come to the specific conclusion that the plaintiffs had valid right, title and interest over the suit property as they had purchased it from the original owner by registered documents. It was also found that after execution of the aforesaid deeds, the plaintiffs were put in possession of the suit premises but they were dispossessed during the pendency of the suit and hence the relief was amended seeking recovery of possession also. In the said circumstances, it was rightly found that there was no question of 3 any remission in the instant case. 6. No doubt, the finding of the trial court was that during the pendency of the title suit the plaintiffs were dispossessed by the defendants, but no relief of recovery of possession was granted by the trial court nor any appeal or cross appeal was filed by the plaintiffs against that part of the trial court judgment. However, under the provision of Order XLI Rule 33 of the Code of Civil Procedure, the lower appellate court in a first (title) appeal holds wide powers as a title appeal is continuation of the suit and the lower appellate court has the power to pass any decree and make any order, which ought to have been passed or made by the trial court. Furthermore, the said finding of the court of appeal below was based on proper consideration of the pleadings and evidence of the parties, which clearly showed that the recovery of possession in favour of the plaintiffs was necessary in the ends of justice. 7. In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned judgments and decree of the learned courts below nor does it find any substantial question of law involved in the instant second appeal, which is, accordingly, dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. MPS/ ( S.N. Hussain, J. )