1. This is a plaintiffs' appeal arising out of a suit for a declaration that the plaintiffs are owners and in possession of the properties specified in the plaint and that the defendants have no proprietary right in them. The properties in dispute consist of certain houses occupied by raiyats on lands said to be appertaining to a dargah; open ground as well as certain lands comprised in khewat No. 48 and measuring about 10 bighas and 13 biswas. The plaintiffs' case as put forward in the plaint was that these properties had been granted to their ancestor and had devolved upon them exclusively but the defendants who had no title to these properties were actually offering obstruction to he collection of rents by the plaintiffs and alleging themselves to be co-owners 'he said properties and were trying to make collections of rant as well as of offerings to the shrine. The plaintiffs did not ask for any specific consequential relief by way of ejectment or injunction, but added the general prayer for such other relief as the Court may consider beneficial. The claim was contested by the defendants, who can be classified into three groups, and one of the pleas taken was that a mere declaratory relief was barred by Section 42, Sp. Rel. Act. The learned Subordinate Judge has not gone into the merits of the case so far as the title to the property is concerned but has considered the evidence relating to the possession of the respective parties. He has come to the conclusion that the defendants and the plaintiffs are in joint possession of the properties and that therefore
the plaintiffs were bound to sue for possession and the declaratory relief will be inefficacious for the purposes of this suit.
2. The plaintiffs have come up in appeal to this Court and on their behalf it is urged that they were not bound to ask for possession or any other consequential relief. (Here his Lordship considered the evidence and concluded as follows). On this state of the evidence we must affirm the finding of the Court below that both the parties are in joint possession of the properties and that the plaintiffs are not in exclusive possession of the same. The learned advocate for the appellant has next contended that even on that finding the plaintiffs were not bound to ask for any consequential relief. The point taken by him is that this is not a case of actual physical possession of the property, but that the actual possession is in the hands of tenants who only pay rents to the proprietors. It is therefore urged that a declaratory decree would suffice, for after the passing of such a decree, the tenants and raiyats would pay rents to the plaintiffs and would decline to pay rents to the defendants.
3. The fact, however, remains that the defendants are in joint possession of these properties in almost the same way as the plaintiffs are. A mere declaratory decree would not be capable of execution. It would leave the position of the parties just as it is at present. Unless therefore the defendants are either ejected from these properties or the plaintiffs are given exclusive possession over the same or an injunction is granted against the defendants restraining them from interfering with the possession of the plaintiffs, the declaratory decree would be wholly infructuous and futile. This is not a mere case of a scramble for possession, where it is doubtful whether a party is in possession, nor is it a case where tenants have declined to pay rent until the title of the real owner is determined. Both parties being in possession we are of opinion that a mere declaratory decree would be wholly insufficient to meet the needs of this case.
4. It is unnecessary for us to discuss in this case the rulings which seem to lay down that in a suit for a declaration that a decree is void or voidable on the ground of fraud a consequential relief in the nature of an injunction is necessary. Nor is it necessary for us to discuss the cases cited on behalf of the appellants which seem to lay down that in cases where the actual possession is with third parties and there is a mere scramble for possession a mere declaration will be sufficient. We must, however, refer to the case of Nirmal Chander Banerji v. Mahomed Siddik  26 Cal. 11, which was decided by their Lordships of the Privy Council. In that case both parties claimed to derive their title from a lady, Saidunnissa Bibi, under certain conveyances executed by the assignees and lessees of portions of her property. The plaintiff had applied to the Collector for the registration of his name under the Bengal Land Registration Act on the ground of his title as purchaser but his application was refused on an objection having been raised by the defendant. He accordingly brought a suit for a declaration of his ownership of the property as well as of his right to registration under the said Act. The property consisted of houses and parcels of land which had been let out to tenants. Obviously there had been some irregular and indirect litigation between the rival claimants each suing a tenant of some portion of the property for rent till that suit was instituted to put the whole title directly in issue between the two claimants. Their Lordships remarked that no objection could be taken to the form of the suit which was obviously maintainable as it was the most convenient and strictly regular way of bringing the dispute to a close. It is noteworthy that in that case the name of neither party was recorded in the Collector's register and no one was on the strength of such an entry entitled to maintain a suit as of right, In the present case the names of the parties are entered in the khewat with regard to the revenue paying land and both are entered as co-sharers. On the date when the suit was instituted, and even when it was disposed of by the Court below, the Tenancy Act of 1901 was in force, under which the entry of names in the revenue papers was to be in the first instance on the basis of possession. Further, under Section 201, Agra Tenancy Act, if a party was recorded as having such proprietary right then the revenue Court in a suit for profits had to presume that he had such right. It was held by a Full Bench of this Court that presumption was absolute and conclusive and not only rebuttable: Durga Prasad v. Kuar Hazari Singh  33 All. 799. The revenue Court, therefore, could not ignore the entry of the names of the defendants and would have had to decree suits for profits in their favour as well as suits against tenants for arrears of rent. The defendants' joint possession therefore was real and substantial and not merely symbolical. The present case is accordingly distinguishable from the case which was before their Lordships of the Privy Council. We think that the plaintiffs are bound to ask for some consequential relief which, in case they establish their title, would place them in exclusive possession without further interference by the defendants. Therefore they were] bound either to ask for the defendants' ejectment or an injunction. We think that is what the Court below meant although the language used by it is to the effect that the plaintiffs are bound to sue for possession. There is no prayer before us for permission to amend the plaint and add a relief for ejectment or injunction. We accordingly dismiss this appeal with costs in both Courts.