JUDGMENT : Heard Mr. Indrajit Sinha, learned counsel for the appellant and Mr. Praveen Akhauri, who appeared on behalf of the respondents. 2. This second appeal has been filed aggrieved and dissatisfied with the judgment and decree dated 17.04.2010 (decree signed on 27.04.2010) passed by the learned 1st Additional District Judge, Singhbhum (East), Jamshedpur in Title Appeal No.8 of 2005 reversing the judgment and decree dated 14.02.2005 (decree signed on 28.02.2005) passed by the learned Subordinate Judge-V at Jamshedpur in Title Suit No. 12 of 1990. 3. Title Suit No.12 of 1990 was instituted for recovery of possession of the suit premises evicting the defendant from the property mentioned in the schedule of the plaint. The said suit was decreed in favour of the plaintiff vide judgment dated 14.02.2005 and the defendant was directed to vacate the disputed shop premises within 60 days from the order passed in Title Suit, failing which, the plaintiff may get recovery of possession of the suit shop premises through the process of the Court. Being aggrieved with the said judgment and decree, the defendant filed Title Appeal No.08 of 2005 and vide judgment dated 17.04.2010, learned 1st Additional District and Sessions Judge, Jamshedpur, Singhbhum East has been pleased to reverse the finding in the suit. Aggrieved with the said judgment in the Title Appeal, the appellant has filed the present second appeal. 4. In the plaint, it was contended that the shop no.13, Old Tina Shed, Bistupur Bazar, Jamshedpur belong to M/s TISCO Ltd. and M/s TISCO Ltd. allotted the shop to Radha Raman Basak, the father of the appellant/plaintiff on monthly tenancy basis and the father of the appellant/plaintiff was in occupation of the suit premises as a monthly tenant under M/s TISCO Ltd. as a monthly tenant. Radha Raman Basak died in the year 1950 leaving behind his four sons including the appellant/plaintiff. After the death of the father of the appellant/plaintiff, the tenancy of the suit premises was transferred in favour of the appellant/plaintiff by M/s TISCO Ltd. and accordingly the appellant/plaintiff was paying rent and other charges to M/s TISCO Ltd. and the defendant was in possession of the suit premises on leave and licence of the appellant/plaintiff. It was further contended that the plaintiff's father Radha Raman Basak and defendant's father Gopi Pada Basak were brothers. It was further contended that the plaintiff's father Radha Raman Basak and defendant's father Gopi Pada Basak were brothers. Gopi Pada Basak was a TISCO employee and his son Manindra Nath Basak was permitted to run a business in the said shop premises by the father of the plaintiff. The shop was lying vacant and was in occupation of the plaintiff. The defendant passed Matriculation in the year 1967 and was sitting idle, thereafter, he requested the plaintiff to allow him to occupy the said shop no.13 where he wanted to run business and agreed to vacate the same as and when it will be required by the plaintiff and accordingly the defendant was allowed to occupy the said shop premises on leave and licence of the plaintiff. It was further contended that the plaintiff in the year 1989 requested the defendant to vacate the suit shop premises, but he refused to vacate the shop and that is why the plaintiff issued notice on 10.09.1989 to the defendant though his lawyer asking the defendant to vacate the shop and deliver possession of the shop premises immediately from the expiry of 30.09.1989 and therefore his license was revoked and the defendant was asked to handover the possession of the suit shop premises to the plaintiff by 01.10.1989. The said notice was replied by the defendant denied the claim of the plaintiff and refused to deliver the possession and pursuant to that the said title suit was filed by the plaintiff. 5. The defendant appeared in the said title suit and filed written statement. The defendant challenged the relationship of licensor and licensee and denied the averments made in the plaint. In the written statement, the point of maintainability, waiver, acquiescence were taken by the defendant. It was contended by the defendant that father of the appellant/plaintiff Radha Raman Basak and father of the defendant Gopi Pada Basak were full brothers. Gopi Pada Basak was elder brother and they constituted a joint Hindu family. Gopi Pada Basak was employed in TISCO. The family members of both were living in Quarter No.77, H/6 South Park Bistupur, which has been allotted by TISCO in favour of Gopi Pada Basak. Gopi Pada Basak was elder brother and they constituted a joint Hindu family. Gopi Pada Basak was employed in TISCO. The family members of both were living in Quarter No.77, H/6 South Park Bistupur, which has been allotted by TISCO in favour of Gopi Pada Basak. It was further contended that elder son of Gopi Pada Basak was sitting idle and father of the defendant was allotted shops in Bistupur Market area as Radha Raman Basak was not employee of TISCO and he could not run any business in his own name and by an amicable family arrangement Gopi Pada Basak started his exclusive business in shop no.13 through his elder son Manindra Nath Basak and thereafter the defendant became in exclusive possession of shop no.13 and running his business. It was also contended that because of family arrangement, the plaintiff has been running his separate exclusive business in shop no.11 O.T.S. Bistupur and shop no.13 was allotted in the name of defendant's father and the rent was paid in the name of the defendant's father and as it was found in convenient to have the name of the appellant/plaintiff Asit Kumar Basak mutated in the office of the TISCO Ltd. and the defendant was continuing in making payment of rent to M/s TISCO Ltd. in the name of the plaintiff. It was also averred that suddenly in the end of August, 1989, the appellant/plaintiff started disturbing the well run business of the defendant in the suit shop premises due to jealousy and greed and in consequence there was a quarrel between them and the matter was settled due to intervention of their well wishers and mutual family partition has already been made and the dispute was settled and it was alleged that there was no cause of action and in spite of that, the said title suit was filed. 6. Mr. Indrajit Sinha, learned counsel for the appellant in the aforesaid background submits that in spite of documentary evidence, only relying on the oral evidence, the learned appellate court has reversed the finding of the learned trial court on the ground of relationship of licensor and licensee, which is not tenable and on this ground, this second appeal may kindly be allowed. 7. 7. In view of the above facts and considering the judgment of the learned trial court as well as the appellate court, this Court finds that the learned trial court has determined the suit on the basis of 7 issues framed in the suit. The learned appellate court considering the averments as well as the judgment of the learned trial court, has framed the point whether there is any relationship of licensor and licensee between the plaintiff and defendant and the plaintiff has valid right, title and interest over the disputed shop as described in schedule of the plaint and was he entitled to recover the possession thereof, as prayed for in the suit and second point framed by the learned appellate court whether the plaintiff had valid cause of action for the suit and was he entitled to relief prayed for in the suit. On the basis of the arguments advanced on behalf of both the sides as well as considering the evidence on the record, the learned appellate court has come to the conclusion that both the parties were living jointly at Jamshedpur. The father of the defendant got a job at M/s TISCO Ltd. The father of the plaintiff was unemployed. The brother of the defendant was also unemployed and that is why, the father of the defendant got allotted two shop rooms in the name of father of the plaintiff, as an employee of TISCO is debarred for taking allotment of the shop for the purpose of business. After allotting the two shops, the shop no.11 occupied by the father of the plaintiff and they started a business over the same. Shop no.13 occupied by the father of the defendant and he gave the said shop to his elder son Manindra Nath Basak, who ran a business of glass material in the said shop room, he closed his business after that the plaintiff started his business in the said shop room. The father of the defendant and defendant used to pay the rent of the said shop room to the TISCO Ltd. and in the year 1980, the plaintiff kept in dark the others, mutated his name in respect of the disputed shops and mutated the name of his mother in respect of shop no.11. The father of the defendant and defendant used to pay the rent of the said shop room to the TISCO Ltd. and in the year 1980, the plaintiff kept in dark the others, mutated his name in respect of the disputed shops and mutated the name of his mother in respect of shop no.11. Though, the plaintiff or his father never occupied the suit shop at any point of time and the same was in occupation of the elder brother of the defendant and thereafter by the defendant. So, there is no relation of licensor and licensee between them and pleadings are made to the effect that there are relationship of licensor and licensee and considering that, the learned appellate court came to the conclusion that the plaintiff cannot claim the recovery of possession over the suit premises without declaring his title over the same. When the plaintiff failed to prove the relationship of licensor and licensee over the disputed shop, the plaintiff cannot recover possession of the disputed shop. The learned appellate court set aside the finding of the learned trial court considering that there is no reason to declare that earlier there was relationship of licensor and licensee between the parties and hold that the plaintiff was not entitled to recovery of possession of the shop in question after evicting the defendant there from. The plaintiff has no right, title and interest over the shop. When the title has not been proved, the learned appellate court has rightly reversed the finding of the learned trial court. There is no illegality in the appellate court's order. Second point as framed by the learned court was also not in favour of the appellant/plaintiff. 8. It is well settled that a decree of possession cannot be passed in favour of the plaintiff merely because defendant was not able to fully establish right, title and interest in the property. It is further settled that the defendant cannot be dispossessed unless the plaintiff has established a better title and rights over the suit property. The burden of proof to establish a title in the present case lies upon the plaintiff as this burden lies on the party who asserts the existence of a particular state of things on the basis of which he/she claims relief. The burden of proof to establish a title in the present case lies upon the plaintiff as this burden lies on the party who asserts the existence of a particular state of things on the basis of which he/she claims relief. Recently the Hon'ble Supreme Court in Smriti Debbrama (Dead) through legal representative v. Prabha Ranjan Debbrama and others; [2022 LiveLaw (SC) 19] held as under: "This is mandated in terms of Section 101 of the Evidence Act, which states that burden on proving the fact rests with party who substantially asserts in the affirmative and not on the party which is denying it. This rule may not be universal and has exceptions , but in the factual background of the present case, the general principle is applicable. In terms of Section 102 of the Evidence Act, if both parties fail to adduce evidence, the suit must fail. Onus of proof, no doubt shifts and the shifting is a continuous process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title. The weakness of the defence cannot be a justification to decree the suit. The plaintiff could have succeeded in respect of the Schedule ‘A’ property if she had discharged the burden to prove the title to the Schedule ‘A’ property which squarely falls on her. This would be the true effect of Sections 101 and 102 of the Evidence Act.” 9. In view of the above facts, reasons and analysis, there is no illegality in the judgment passed by the appellate court. 10. Accordingly, this second appeal stands dismissed.