Deokuer v. Sheoprasad

**A** **B** #### c **D** **E** **F** **DEOKUER** **&** **ANR.** _v._ **SHEOPRASAD SINGH AND ORS.** _April_ 8, 1965 [A. K. SARKAR, M. H!DAYATULLAH AND RAGHUBAR DAYAL, JJ.) _Specific Relief_ _Act_ _(Act_ 1 _of_ 1887), _s._ _42-Declaratory_ _suit-Pro-_ _perty_ _in .dis]iiute'_ _attached under_ _s._ 146 _Criminal_ Proced~re _Code-_ _Omission to sue for relief of possession_ _whether_ _bars suit._ There was dispute about the property in suit between the appellants 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 consequential relief of possession. The #### suit ""S decreed by the trial court but the High Court set aside the decree o!i 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, !\led 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-DJ Further it is not necessary to ask for possession when the property is in _cv,stodia legis._ There is no doubt that property under attachment undev s. 145 of the Code is in _cv,stodia legis._ [657E] _Sunder Singh Ma!!ah Singh Sanatan Dharam High School, Trust_ **G** v. _Managing_ Committee, _Sunder Singh-MaUah Singh Rajput High_ _School,_ (1937) L.R. 65 I.A. 106 and _Nawab Humayim Begum_ v. _NlbWab_ _Shah Mohammad Khan,_ A.LR. 1943 P.C. 94, relied on. **H** _K. Sundarama Iyer_ v. _Sarvajana Sowkiabi! Virdhi Nidhi_ Ltd. I.L.R. [1939) Mad. 986, approved. _Dukhan_ _Ram_ v. _Ram Nanda Singh,_ A.LR. 1961 Pat. 425, disapproyed. OvIL APP ELLA TE JurusmcrmN: 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. 655 656 SUPREME COURT REPORTS ## • (1965] 3 8.LR. _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 B had acquired no right or title to a property under ~rtain 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 0. 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 appel- l> lants 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 v1as 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 g 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 P 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 G 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 al!;o ll asked for. It appears that the attachm~n! under s. 145 in t!te p~ sent case is still continuing and no dec1s1on has yet been given m 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 nC1t necessary to ask for the further relief of delivery of possession. The fact A B ### c D E DEOKUER _v._ SHEOPRASAD _(Sarkar,_ J.) 65T 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 actualiy 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 positior1 to deliver possession to the plaintiff it is not necessary for the plaintiff in a suit for a declarat;on of title to property to claim possession: see _Sunder Singh_ _Mal/ah Singh Sanatan Dharm High School, Trust_ v. _Managing_ _Committee, Sunder Singh-Mal!ah Singh Rajput High School.(')_ Now it is obvious that in the present case, the responde1 . .ts were not in possession after the attachment 2nd were net in a position to deliver possession to the appellants. The magistrate was in po·ssession, for whomsoever. it does not matter, and he was not of co11rse a party to the suit. It is pertinent to observe· that in _Nawab_ _Humayun Begam_ v. _Nawab Shah Mohammad Khan(')_ it has been held that the further refaf 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 Iyer_ v. _Sarvajana Sc,wkiabil Virdhi_ _Nidhi Ltd.('),_ 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(')_ 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 F 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 mav #### not be binding would not affect the competence of the suit. The G su;t 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 ti· e F case when the property is under attachment uncler s. 145 of the H Coc!e. We think that _Dukkan Ram's(')_ case had not been correctly decided. We may add that no other case taking that view was brought to Ol!r notice. ( [1 ] ) (1937) LR. _66_ I.A. 106. (') A.l.R. 1943 P.C. 94 (') I.LR. (1939) Mad. 986. (') A.I.R. 1961 Pot. _4,26._ SUPREME COURT REPORTS [1965) 3 S.C.B. For these reasons, we hold that the suit out of which this A ~ppeal 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._ B # .4---.