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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