IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.28 of 2006 Santosh Kumar Jalan son of Sri Radha Krishan Jalan, resident of Mohalla Bekapur, P.S. Kotwali, P.O. and District Munger. ……Defendant- Appellant- Appellant. Versus Chandra Kishore Jalan son of late Dwarika Prasad Jalan, resident of Mohalla- Bekapur, P.S. Kotwali, P.O. and District- Munger. ….. Defendant- Respondent- Respondent. ----------- For the Appellant : M/S T.N.Maitin, Sr. Advocate and Ramadhar Singh, Advocate. For the respondent: M/S Mani Bhushan Kumar-1.. Surya Narayan Sah and Sushmita Mishra, Advocates. ---------- 8/ 09-01-2009 Heard learned counsel for the parties. 2 This second appeal has been filed by the sole defendant- appellant- appellant against the judgment and decree of both the learned courts below. 3. The matter arises out of Title Suit No. 18 of 1996 which was filed by the sole plaintiff- respondent- respondent for eviction of the defendant from the suit premises. The said suit was decreed on contest with cost by the learned Munsif-2, Munger vide his judgment and decree dated 28.07.2004. Against the aforesaid judgment and decree of the learned trial court the defendant filed Title Appeal No. 47 of 2004 which was dismissed on contest with cost by the learned 1st Additional District Judge, Munger by his judgment and decree dated 20.01.2006. Against the aforesaid judgments and decree of both the learned courts below the instant second appeal has been filed. 4. It is not in dispute that the plaintiff and defendant were originally the sons of Dwarika Prasad Jalan but subsequently defendant was adopted by R.K.Jalan and the said fact has been affirmed by the court of - 2 - law in Title Suit No. 17 of 1983 vide judgment and decree dated 31.03.1990 ( Ext. 8 ) in which it was held that the defendant was adopted by one R.K. Jalan and became his adopted son. It further transpires that the defendant filed Partition Suit No. 104 of 1984 against the plaintiff for partition of the ancestral properties of Dwarika Prasad Jalan but the said suit was dismissed by the learned court holding that the defendant of the instant case was the adopted son of R.K. Jalan and hence he had no right, title and interest in the properties of Dwarika Prasad Jalan which included the property involved in the instant suit and that it was the property of the plaintiff of the instant case. Against the judgment and decree of the Partition Suit No. 104 of 1984 a title appeal was also filed by the defendant but the same was also rejected. In the said circumstances the instant Title Suit No. 18 of 1996 was filed by the plaintiff for recovery of possession of the suit premises from the defendant. Thus when it was specifically held by a court of law that defendant was adopted son of R.K. Jalan and it was held by another court of law that the defendant had no right, title, interest or share in the suit property which belonged to the plaintiff, there was no occasion for the plaintiff to seek again any declaration of title with respect to the suit property and it was sufficient for him to file a simple suit for recovery of possession. 5. So far the other question raised by the appellant is concerned, it is not in dispute that the plaintiff had not claimed declaration of title in the plaint of Title Suit No. 18 of 1996 and hence the learned courts below were justified in not going into the said question as the said question was not at all relevant in the aforesaid facts and circumstances of the case. Thus since the defendant had no right, title, interest or share in the suit - 3 - property, the plaintiff was fully justified in filing the suit for recovery of possession. 6. In the aforesaid facts and circumstances this Court does not find any illegality in the impugned judgment and decree of the learned courts below nor does it find any substantial questions of law involved in the instant second appeal, which is accordingly dismissed at this stage of Hearing under Order XLI Rule 11 C.P.C. B.Tiwary/ (S.N Hussain,J)