1. This appeal arises out of a suit brought by the appellants in 1947 for adeclaration that the defendants first party had acquired no right or title to aproperty under certain deeds and that the deeds were inoperative and void. Thesuit was decreed by the trial Court but on appeal by the defendants first partyto the High Court at Patna that decree was set aside. The High Court havinggranted a certificate of fitness, the appellants have brought the presentappeal. The defendants first party have alone contested the appeal and will be referredto as the respondents.
2. The High Court held that as the appellants were not in possession of theproperty at the date of the suit as found by the learned trial Judge and therespondents were, their suit must fail under the proviso to s. 42 of theSpecific Relief Act as the appellants had failed to ask for the further reliefof recovery of possession from the respondents. In this view of the matter theHigh Court did not consider the merits of the case. The fact however was thatat the date of the suit the property was under attachment by a magistrate underpowers conferred by s. 145 of the Code of Criminal Procedure and was not in thepossession of any party. This fact was not noticed by the High Court but thereason why it escaped the High Court's attention does not appear on the record.
3. The only point argued in this appeal was whether in view of theattachment, the appellants could have in their suit asked for the relief fordelivery of possession to them. If they could not, the suit would not be hit bythe proviso to s. 42. The parties seem not to dispute that in the case of anattachment under s. 146 of the Code as it stood before its amendment in 1955, asuit for a simple declaration of title without a prayer for delivery ofpossession is competent. The respondents contend that the position in the caseof an attachment under s. 145 of the Code is different, and in such a case themagistrate holds possession for the party who is ultimately found by him tohave been in possession when the first order under the section was made. It wassaid that a suit for declaration of title pending such an attachment isincompetent under the proviso to s. 42 unless recovery of possession is alsoasked for. It appears that the attachment under s. 145 in the present case isstill continuing and no decision has yet been given in the proceedingsresulting in the attachment.
4. In our view, in a suit for declaration of title to property filed when itstands attached under s. 145 of the Code, it is not necessary to ask for thefurther relief of delivery of possession. The fact if it be so, that in thecase of such an attachment, the magistrate holds possession on behalf of theparty whom he ultimately finds to have been in possession is, in our opinion,irrelevant. On the question however whether the magistrate actually does so ornot, it is unnecessary to express any opinion in the present case.
5. The authorities clearly show that where the defendant is not inpossession and not in a position to deliver possession to the plaintiff it isnot necessary for the plaintiff in a suit for a declaration of title toproperty to claim possession : see Sunder Singh Mallah Singh Sanatan Dharm HighSchool, Trust v. Managing Committee, Sunder Singh-Mallah Singh Rajput High SchoolL.R.1937. IndAp 106. Now it is obvious that in the present case, therespondents were not in possession after the attachment and were not in aposition to deliver possession to the appellants. The magistrate was inpossession, for whomsoever, it does not matter, and he was not of course aparty to the suit. It is pertinent to observe that in Nawab Humayun Begam v.Nawab Shah Mohammad Khan it has been held that thefurther relief contemplated by the proviso to s. 42 of the Specific Relief Actis relief against the defendant only. We may add that in K. Sundaresa Iyer v.Sarvajana Sowkiabil Virdhi Nidhi Ltd I.L.R. 1939. Mad. 986 it was heldthat it was not necessary to ask for possession when property was in custodialegis. There is no doubt that property under attachment under s. 145 of theCode is in custodia legis. These cases clearly establish that it was notnecessary for the appellants to have asked for possession.
6. In Dukkan Ram v. Ram Nanda Singh L.R.1937. IndAp 106 a contraryview appears to have been taken. The reason given for this view is that thedeclaratory decree in favour of the plaintiff would not be binding on themagistrate and he was free inspite of it to find that possession at therelevant time was with the defendant and deliver possession to him. With greatrespect to the learned Judge deciding that case, the question is not whether adeclaratory decree would be binding on the magistrate or not. The fact that itmay not be binding would not affect the competence of the suit. The suit for adeclaration without a claim for the relief for possession would still becompetent in the view taken in the cases earlier referred to, which is, that itis not necessary to ask for the relief of delivery of possession where thedefendant is not in possession and is not able to deliver possession, which, itis not disputed, is the case when the property is under attachment under s. 145of the Code. We think that Dukkan Ram's : AIR1961Pat425 , case had not beencorrectly decided. We may add that no other case taking that view was broughtto our notice.
7. For these reasons, we hold that the suit out of which this appeal hasarisen was competent. We, therefore, allow the appeal but as the merits of thecase had not been gone into by the High Court, the matter must go back to thatCourt for decision on the merits. The appellant will get the costs here andbelow.
8. Appeal allowed and case remanded.