1. Heard the parties.

2. This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree of reversal dated 30.09.2015 passed by the learned District Judge-IX, Dhanbad in Title Appeal No. 24 of 2008 whereby and where under, the learned first appellate court has allowed the appeal on contest and set aside the judgment and decree passed in Title (Eviction) Suit No. 20 of 2004 dated 15.02.2008.

3. The brief fact of the case is that the respondent no.1-plaintiff filed the Title (Eviction) Suit No. 20 of 2004 against the appellant of this second appeal as well as the respondent no.2 of this second appeal who is the husband of the appellant of this second appeal with a prayer for restoration of vacant possession of the suit house premises, by evicting the defendants, as well as for the cost of the suit.

4. The case of the plaintiff in brief is that the suit land was purchased by her husband by a registered sale deed marked Ext.1. The husband of the plaintiff died in the month of July 1972 leaving behind the plaintiff and minor sons as his legal successors. It is the further case of the plaintiff that the plaintiff constructed a house from her own income after the death of her husband and has been living peacefully there with her children. The elder son of the plaintiff who is the defendant no.2 in the suit married the defendant no.1 who is the appellant of this second appeal and after that they lived in the suit property. The defendant no.1 always threatened the plaintiff to grab the suit property and also used to harass the plaintiff and her family members by threatening to lodge false case and lodged a false case also in which the plaintiff was convicted. There was a joint compromise in a matrimonial proceeding between the defendant nos.1 and 2 and the marriage between the defendant nos.1 and 2 has been dissolved by a decree of divorce on joint compromise. The plaintiff contended that the defendants have no right, title and interest over the suit land. The plaintiff is a very old and aged woman and she has been continuously humiliated and tortured by the defendant no.1- the divorced wife of the defendant no.2. The plaintiff bonafidely and reasonably requires the suit premises for her own use and necessity. The plaintiff has got right, title, interest and possession of the suit property and it is her self-acquired property; as the same has been purchased out of her own earning. Hence, the plaintiff filed the suit.

5. The defendant no. 1 in her written statement challenged the maintainability of the suit on various technical grounds. The defendant no.1 admitted that the plaintiff took the defendant nos.1 and 2 to the suit house. The defendant no.1 has given birth to three female children out of wedlock with the defendant no.2. The defendant no.1 is being paid a sum of Rs.1,500/- per month towards maintenance.

6. The defendant no.2 in his written statement admitted all the averments and pleadings made in the plaint by the plaintiff and the defendant no.2 did not contest the averments made in the plaint.

7. On the basis of the rival pleading of the parties, the learned trial court settled the following five issues which reads as under:-

"(i) Whether the suit of the plaintiff is maintainable

(ii) Whether there is any cause of action for the present suit

(iii) Whether the defendant is liable to be evicted from the suit premises and whether the plaintiff is entitled to get the possession of the suit premises from the defendant

(iv) Whether the plaintiff is entitled to get any other relief

(v) Is the suit bad for non-joinder of necessary parties"

8. In support of her case, the plaintiff examined altogether three witnesses and proved the documents which have been marked Ext. 1 to Ext.3. On the other hand from the side of the defendants, the defendants examined altogether four witnesses.

9. The learned trial court first took up issue no. (v) and considering the materials in the record came to the conclusion that the two daughters of the defendant no.1 are also necessary parties to the suit but they having not joined by the plaintiff as defendant, held that the suit is liable to the dismissed on the said ground. The learned trial court next took up issue no. (iii) and considered that the two daughters are minor daughters and are entitled to residence and maintenance from their father who has interest and also share in the suit property and as the defendant no.1 is having custody of the two minor daughters so far they are unmarried therefore, the defendant no.1 is not liable to be evicted as the suit property is still joint and decided the issue no. (iii) against the plaintiff and in favour of the defendants. The learned trial court next took up issue nos. (i), (ii) and (iv) together and held that there is no valid cause of action for the suit, the plaintiff is not entitled to any relief, the suit is a collusive and fraudulent suit and dismissed the suit.

10. Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiff filed Title Appeal No.24 of 2008 in the court of Principal District Judge, Dhanbad which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree.

11 The learned first appellate court considered the admitted position of the relationship between the parties and that the suit was the exclusive property of Subhash Chandra Modak-the husband of the plaintiff. The learned first appellate court also considered that the defendant nos.1 and 2 are living separately for last six years as mentioned in the application made in the matrimonial suit and on the basis of the same and compromise with mutual consent a decree of divorce was granted. On the basis of Ext.2/a, the learned first appellate court concluded that no relationship exists between the defendant nos.1 and 2 and the plaintiff is under no obligation to maintain the defendant no.1. The suit premises happens to be exclusive property of the plaintiff and the three sons of the plaintiff never claim any share of the suit property knowing the fact that so long as their mother is alive, she will be the exclusive owner of the property and only after her death the suit property may be a subject of partition amongst the son, if the plaintiff dies intestate. The learned first appellate court found fault with the learned trial court for non- consideration of the legal position and observed that the learned trial court erred by deciding the suit on compassionate ground, ignoring the provision of law and held that the suit is maintainable in law as the plaintiff has right to get her title declared over the suit premises on the basis of the registered sale document in the name of her husband marked Ext.1. The possession of the defendant no.1 in the suit premises is a permissive possession, at the option of the plaintiff, who is the legal owner of the suit property and set aside the judgment and decree passed by the learned trial court.

12. At the time of Admission of this appeal, the following substantial questions of law was framed vide order dated 10.12.2018 by the Predecessor Judge in the roster :-

“(i) Whether, the learned appellate court below has not committed error in reversing the judgment and decree passed by learned trial court without assigning any reason to disagree with same

(ii) Whether the learned appellate court below has failed to consider that the framing of suit is itself defective and illegal on its face as eviction from suit premises has been sought by mother against her son and daughter-in-law (co-sharer) of suit property as the property purchased by her husband who subsequently died in year 1970 and title by virtue of heirship passed equally to plaintiff and defendant”

13. Learned counsel for the appellant submits that the learned first appellate court has committed perversity by failing to consider that the divorced Hindu woman is entitled to right over the immovable and movable property and such right cannot come to an end only on the ground of cessation of marital relationship hence, the learned first appellate court has committed perversity in reversing the judgment and decree passed by the learned trial court. It is next submitted by the learned counsel for the appellant that the learned first appellate court has committed perversity by failing to consider that framing the suit was defective and illegal as eviction has been sought by the mother against the son and daughter-in-law, who are the co-sharers of the suit property as the property purchased by her husband who subsequently died in the year 1970 and thus title by way of heirship passed equally to plaintiff and defendant. Hence, it is submitted that the judgment and decree passed by the learned first appellate court be set aside and the judgment and decree passed by the learned trial court be restored.

14. Learned counsel for the respondents on the other hand opposes the prayer and submits that the undisputed fact remains that the plaintiff is the sole owner of the suit property. The same having been purchased by her husband and by using her money and the plaintiff herself has constructed the house over the suit land. It is next submitted by the learned counsel for the respondents that the fact that the plaintiff is the exclusive owner of the suit property has remained unchallenged and there is absolutely no pleading contesting the said portion of the averments made by the plaintiff in the plaint; so in view of the admitted fact that the plaintiff is the exclusive owner of the suit property and it is the admitted case of the defendants that the defendants were permitted by the plaintiff to stay in the suit house owned by her so certainly, the defendants have no right, title and interest over the suit property and as the plaintiff intended the same for her own exclusive peaceful use; so she has every right for filing the suit for eviction and there is no bar in law for a mother to file a suit for eviction against the son when the mother is having exclusive right, title and interest over the property. Hence, it is submitted that as the plaintiff was entitled to a decree for eviction of the defendants. Therefore, no illegality has been committed by the learned first appellate court in decreeing the suit. It is next submitted that the plaintiff being the dominus litis, the plaintiff filed the suit against the persons against whom she intended the relief and decree passed in the suit is binding on the parties to the suit only and as the plaintiff has no grievance against the daughters of the defendants so obviously she did not implead them as parties and that the decree passed in the suit is also not binding upon the daughters of the defendants having not made parties to the suit; so certainly, the learned trial court has committed perversity in dismissing the suit on the ground that daughters of the defendants have not been made parties, which has been set right by the learned first appellate court. Hence, it is submitted that both substantial questions of law be answered in the negative and this appeal being without any merit be dismissed.

15. Having heard the submissions made at the Bar and after going through the materials in the record, so far as the first substantial question of law is concerned, as already indicated above, the pleading of the plaintiff that she is the exclusive owner of the suit property has remained unchallenged in the written statement filed by the defendants. The defendants admitted that the plaintiff took them to her house after the marriage of the defendant no.1 who is the appellant with the defendant no.2. The defendant no.2 has no grievance against the plaintiff. The defendant no.1 has accepted the pleadings of the plaintiff regarding her contention of exclusive ownership of the suit property. So under such circumstances, as the undisputed fact remains that the plaintiff is the exclusive owner of the suit property and the defendants were in permissive possession of the suit property and the defendant no.2 did not resist the prayer made by the plaintiff in the suit, in the considered opinion of this Court the learned first appellate court has not committed any error in reversing the judgement and decree passed by the learned trial court as the learned trial court passed the decree on compassionate ground without taking into consideration the settled principle of law as has been observed by the learned first appellate court, in the impugned judgement itself. Hence, the first substantial question of law is answered in the negative.

16. So far as the second substantial question of law as to whether the learned first appellate court has failed to consider that the framing of suit is itself defective and illegal on its face; as eviction from suit premises has been sought by mother against her son and daughter-in-law (co-sharer) of suit property as the property purchased by her husband who subsequently died in year 1970 and title by virtue of heirship passed equally to plaintiff and defendant is concerned, there is no bar in law for a mother to file a suit against the son or daughter-in-law for eviction. It is not the case of the defendants that they are the co-sharer of the suit property rather the undisputed fact remains that the plaintiff is the exclusive owner of the suit property. So as has rightly been observed by the learned first appellate court that the succession by way of inheritance of the suit property will come only upon the death of the plaintiff in case she dies intestate; by way of inheritance to the defendants. But till such time the plaintiff being the exclusive owner of the suit property, in the considered opinion of this Court, the learned first appellate court has not failed to consider that the suit is a defective one. As has rightly been submitted by the learned counsel for the respondents that plaintiff being the dominus litis so certainly she had liberty to implead such parties against whom she has any grievance and decree in the suit will be binding only upon the parties to the suit; that does not include the daughters of the defendants. So the consequence of non-impleading of the daughters of the defendants to the suit, is that the decree passed in the suit will not be binding upon the daughters of the defendants but in the considered opinion of this Court such non joining of the daughters of the defendants to the suit as parties cannot be fatal for the suit. As already indicated above, there being no bar in law for a mother to file a suit for eviction against her son and daughter-in-law, hence, no illegality has been committed by the learned first appellate court in this respect either and as the property belong to the plaintiff exclusively, the question of heirship having been passed to the defendants in respect of the same does not arise so long as the plaintiff is alive. Hence, on this score also, the learned first appellate court has not committed any illegality. Hence, the second substantial question of law is answered accordingly.

17. In view of the discussions made above and the answers to the two substantial questions of law, this second appeal being without any merit is dismissed but under the circumstances without any costs.

18. Let a copy of this Judgment along with the Lower Court Records be sent back to the court concerned forthwith.