Full Judgment Text
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PETITIONER:
DEOKUER & ANR.
Vs.
RESPONDENT:
SHEOPRASAD SINGH AND ORS.
DATE OF JUDGMENT:
08/04/1965
BENCH:
SARKAR, A.K.
BENCH:
SARKAR, A.K.
HIDAYATULLAH, M.
DAYAL, RAGHUBAR
CITATION:
1966 AIR 359 1965 SCR (3) 655
ACT:
Specific Relief Act (Act 1 of 1887), s. 42--Declaratory
suit--Property in dispute attached under s. 146 Criminal
Procedure Code-Omission to sue for relief of possession
whether bars suit.
HEADNOTE:
There was dispute about the property in suit between
theappellants and the respondents. The property was
attached by the Magistrate under s. 145 of the Criminal
Procedure Code. Subsequently the appellants filed a suit for
declaration of their title to the property but made no
prayer for the cansequential relief of possession. The suit
was decreed by the trial court but the High Court set aside
the decree on the ground that the suit was bad under s. 42
of the Specific Relief Act for failure to sue for
possession. Appeal to this Court was filed with certificate
of fitness.
HELD: In a suit for declaration of title to property,
filed when it stands attached under s. 145 of the Criminal
Procedure Code, it is not necessary to ask for the further
relief of delivery of possession. The fact, if it be so,
that in the case of such an attachment the Magistrate holds
possession on behalf of the party whom he ultimately finds
to have been in possession, is irrelevant. [656H-657B]
Moreover the further relief contemplated by the
proviso to s. 42 of the Specific Relief Act is relief
against the defendant only. In the present case the
Magistrate was in possession and he was not a party to the
suit. [657C-D]
Further it is not necessary to ask for possession when
the property is in custodia legis. There is no doubt that
property under attachment under s. 145 of the Code is in
custodia legis. [657E3
Sunder Singh Mallah Singh Sanatan Dharam High School,
Trust v. Managing Committee, Sunder Singh-M.allah Singh
Rajput High School, (2937)L.R. 65 I.A. 10,6 and Nawab
Humayun Begum v. Nawab Shah Mohammad Khan, A.I.R. 1943 P.C.
94, relied on.
K. Sundarama Iyer v. Sarvajana Sowkiabil Virdhi Nidhi Ltd.
I.L.R. [1939] Mad. 986, approved.
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Dukhan Ram v. Ram Nanda Singh, A.I.R. 1961 Pat. 425,
disapproved.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 329 of
1962.
Appeal from the judgment and decree dated September 26.
1957 of the High Court in Appeal from Original Decree No.
253 of 1949.
656
Sarjoo Prasad and R.C. Prasad, for the appellants.
A.V. Viswanatha Sastri and D. Goburdhun. for respondents
nos. 1 to 4 and 6.
The Judgment of the Court was delivered by
Sarkar, J. This appeal arises out of a suit brought by the
appellants in 1947 for a declaration that the defendants
first party had acquired no right or title to a property
under certain deeds and that the deeds were inoperative and
void. The suit was decreed by the trial Court but on appeal
by the defendants first party to the High Court at Patna
that decree was set aside. The High Court having granted a
certificate of fitness, the appellants have brought the
present appeal. The defendants first party have alone
contested the appeal and will be referred to as the
respondents.
The High Court held that as the appellants were not in
possession of the property at the date of the suit as found
by the learned trial Judge and the respondents were, their
suit must fail under the proviso to s.42 of the Specific
Relief Act as the appellants had failed to ask for the
further relief of recovery of possession from the
respondents. In this view of the matter the High Court did
not consider the merits of the case. The fact however was
that at the date of the suit the property was under
attachment by a magistrate under powers conferred by s. 145
of the Code of Criminal Procedure and was not in the
possession of any party. This fact was not noticed by the
High Court but the reason why it escaped the High Court’s
attention does not appear on the record.
The only point argued in this appeal was whether in view
of the attachment, the appellants could have in their suit
asked for the relief for delivery of possession to them. If
they could not, the suit would not be hit by the proviso to
s. 42. The parties seem not to dispute that in the case of
an attachment under s. 146 of the Code as it stood before
its amendment in 1955, a suit for a simple declaration of
title without a prayer for delivery of possession is
competent. The respondents contend that the position in the
case of an attachment under s. 145 of the Code is different,
and in such a case the magistrate holds possession for the
party who is ultimately found by him to have been in
possession when the first order under the section was made.
It was said that a suit for declaration of title pending
such an attachment is incompetent under the proviso to s. 42
unless recovery of possession is also asked for. It appears
that the attachment under s. 145 in the present case is
still continuing and no decision has yet been given in the
proceeding’s resulting in the attachment.
In our view, in a suit for declaration of title to
property filed when it stands attached under s. 145 of the
Code, it is not necessary to ask for the further relief of
delivery of possession. The fact
657
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if it be so, that in the case of such an attachment, the
magistrate holds possession on behalf of the party whom he
ultimately finds to have been in possession is, in our
opinion, irrelevant. On the question however whether the
magistrate actually does so or not, it is unnecessary to
express any opinion in the present case.
The authoritie’s clearly show that where the defendant
is not in possession and not in a position to deliver
possession to the plaintiff it is not necessary for the
plaintiff in a suit for a declaration of title to property
to claim possession: see Sunder Singh Mallah Singh
Sanatan Dharm High School, Trust v. Managing Committee,
Sunder Singh-Mallah Singh Rajput High School.(1) Now it is
obvious that in the present case, the respondents were not
in possession after the attachment and were not in a
position to deliver possession to the appellants. The
magistrate was in possession, for whomsoever, it does not
matter, and he was not of course a party to the suit. It is
pertinent to observe that in Nawab Humayun Begam v. Nawab
Shah Mohammad Khan(2) it has been held that the further
relief contemplated by the proviso to s. 42 of the Specific
Relief Act is relief against the defendant only. We may add
that in K. Sundaresa lyer v. Sarvajana Sowkiabil Virdhi
Nidhi Ltd.(3), it was held that it was not necessary to ask
for possession when property was in custodia legis. There is
no doubt that property under attachment under s. 145 of the
Code is in custodia legis. These cases clearly establish
that it was not necessary for the appellants to have asked
for possession.
In Dukkan Ram v. Ram Nanda Singh(1) a contrary view
appears to have been taken. The reason given for this view
is that the declaratory decree in favour of the plaintiff
would not be binding on the magistrate and he was free
inspite of it to find that possession at the relevant time
was with the defendant and deliver possession to him. With
great respect to the learned Judge deciding that case, the
question is not whether a declaratory decree would be
binding on the magistrate or not. The fact that it may not
be binding would not affect the competence of the suit. The
suit for a declaration without a claim for the relief for
possession would still be competent in the view taken in the
cases earlier referred to, which is, that it is not
necessary to ask for the relief of delivery of possession
where the defendant is not in possession and is not able to
deliver possession, which, it is not disputed, is the case
when the property is under attachment under s. 145 of the
Code. We think that Dukkan Ram’s(4) case had not been
correctly decided. We may add that no other case taking that
view was brought to our notice.
(1) (1937) L.R. 65 I.A. 106.
(2) A.I.R. 1943 P.C. 94.
(3) I.L.R. (1939) Mad. 986.
(4) A.I.R. 1961 Pat. 425.
658
For these reasons, we hold that the suit out of which
this appeal has arisen was competent. We, therefore, allow
the appeal but as the merits of the case had not been gone
into by the High Court, the matter must go back to that
Court for decision on the merits. The appellant will get the
costs here and below.
Appeal allowed and case remanded.
659