Deokuer & ANR Vs. Sheoprasad Singh
& Ors  INSC 97 (8 April 1965)
08/04/1965 SARKAR, A.K.
CITATION: 1966 AIR 359 1965 SCR (3) 655
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.
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 can sequential 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.  Mad. 986, approved.
Dukhan Ram v. Ram Nanda Singh, A.I.R. 1961
Pat. 425, disapproved.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 329 of 1962.
Appeal from the judgment and decree dated September
1957 of the High Court in Appeal from
Original Decree No. 253 of 1949.
656 Sarjoo Prasad and R.C. Prasad, for the
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 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
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
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.