Wilkins and Handley, JJ.
1. The plaintiffs, who are the appellants before us, claim to be the proprietors, under a purchase made by their ancestor on the 16th September 1842, of 30 mans of land in mouza Dagrajit, Patna; of this area 15 mans 11 gunts 4 biswas are bahali (or confirmed) lakhiraj, and the defendants, in spite of the opposition of the plaintiffs, succeeded in getting their names registered in respect thereof in the Collector's books; the remaining portion is baziafti (or resumed) lakhiraj, and in respect of this the plaintiffs' own names are registered as the proprietors in possession. The plaintiffs bring this suit with the object of obtaining a declaration of their title whether by purchase or by long adverse possession to the bahali lands.
2. The defendants contest the claim; and the nature of their case may be gathered from the issues framed, which were as follows:
1. Is the suit barred by limitation
2. Whether the kobala (of l6th September 1842) propounded by the plaintiff is a bond fide and genuine document
3. Whether the plaintiffs have acquired a right to the lands in dispute by adverse possession?
4. Whether the purchase set up by the plaintiff was benami or not?
3. The first hearing of the suit was ex parte, and the Munsif awarded the plaintiffs a decree. That decree was set aside on appeal, and the case was remanded for adjudication upon the merits; and the parties then adduced a large mass of evidence, both oral and documentary, in support of their respective pleas.
4. The first Court, however, decided the suit upon a preliminary point--a point which, we may observe, was not advanced by either of the parties, and was not raised in any of the issues framed. This point was that as admittedly and on the evidence the bahali lands were so mixed up with the baziafti lands as to be altogether undistinguishable the plaintiff was not entitled to a mere declaratory decree, which would be incapable of being put into execution. This view was also held by the Lower Appellate Court on appeal; and the plaintiff now comes up to this Court in second appeal.
5. It is contended by Mr. Bonnerjee for the appellants that there is nothing in the Code of Civil Procedure, which lays down what the plaint shall contain, that justifies this finding; that the plaintiffs being already in possession, that is, actual and physical possession, of the whole 30 mans including the bahali lands now in suit, had no occasion to sue for more than a declaration of their title, which was attacked by the entry in the Collector's book of the names of the defendants in respect of these lands. And the learned Counsel relied upon the case of Kazem Sheikh v. Danesh Sheikh (1897) 1 C.W.N., 574, in support of this possession. That case was heard by Mr. Justice Rampini, who in the course of his judgment therein remarked (at p. 576 of the report): 'I am not aware of there being any provision in the Civil Procedure Code authorizing the dismissal of a suit on the ground that the land in suit cannot be identified.' It is to be remembered, however, that in the case before the learned Judge, not only was a part of the land clearly identifiable, but also the whole of the land in suit was apparently capable of being sufficiently identified for the purposes of the execution of the decree; so that the learned Judge's ruling relied upon, though entitled to all respect, yet was in the nature of an obiter dictum. In the case now before us the lands in suit are admittedly quite inseparable and undistinguishable from the other lands included in the entire area, of which the plaintiffs say they are the proprietors.
6. The learned pleader for the respondents relies upon the cases cited in the Judgment of the Lower Appellate Court. In the case of Dwarka Nath Roy v. Jannobee Chowdhrain (1873) 19 W.R. 81, the decree which was successfully objected to in special appeal was a decree for a portion only of the land in suit, such portion not being specified by boundaries in the decree, which consequently was incapable of execution. But in that case, the plaintiff sued for the recovery of the land, and manifestly the decree-holder could not in execution be put into possession of that land, when there Was nothing to show and no manner of ascertaining of what particular plots or area it consisted. In Darbaree Sayal v. Fatu Dhalee (1875) 23 W.R., 285, the decree was also for the possession of a portion of the land in suit; and a Divisional Bench of this Court, following the case in 19 W.R., held that it was for a similar reason incapable of execution. These cases are therefore so far distinguishable from the case now before us, in that no decree has been asked for by the plaintiffs for possession of these bahali lands.
7. In Mahomed Ismail v. Lalla Dhundur Kishore Narain (1875) 25 W.R., 39, the decree was also one directing that the plaintiff be put into possession of the land in suit, and it was set aside by a Divisional Bench of this Court as being incapable of execution, inasmuch as no boundaries were given of the land, which was a small area within a larger area.
8. The case of Ajoodhia Lall v. Gumani Lall (1878) 2 C.L.R., 134, is also distinguishable; for there the plaintiff claimed to have exempted from partition certain lands which it was impossible in the absence of boundaries to define and determine. The plaintiff's decree was, therefore, inoperative.
9. It seems, therefore, to us that the plaintiff in this case would not necessarily fail upon this ground, when they ask merely for a declaratory decree in respect of their title.
10. It was, however, further contended on behalf of the respondents that, as the effect of an order under Section 59 of the Land Registration Act is, under Section 62, to 'settle the actual possession,' the person against whom such an order has been made is precluded by Section 42 of the Specific Relief Act from bringing a suit merely for a declaration of his title without seeking also to recover possession. In Ram Mundur v. Janki Pershad (1882) 12 C.L.R., 139, a Divisional Bench of this Court certainly so held, although the objection had not been taken in either of the lower Courts. It seems to us that case is almost, if not altogether, on all fours with the case now before us. The plaintiffs, it is true, assert that they are in actual possession of these lands; but they admit that an order under Section 59 of the Bengal Land Registration Act has been passed against them and in favour of the defendants, so that they must be held to be out of what may be called legal possession. Consequently, if the recovery of such possession is a 'further relief' within the meaning of the proviso to Section 42 of the Act, a purely declaratory decree affirming the plaintiffs' title would not in the present suit be allowed.
11. See also Omurunissa Bibee v. Dilawar Ally Khan (1884) I.L.R., 10 Cal., 350, and Krishnabhupati Devi v. Ramamurti Pantulu (1894) I.L.R., 18 Mad., 405.
12. Now in Fakir Chand Addhikari v. Anunda Chunder Bhuttacharji (1887) I.L.R., 14 Cal., 586, it was held that the 'further relief' referred to in Section 42 was further relief in relation to 'the legal character or right as to any property which any person is entitled to, and whose title to such character or right any person denies or is interested to deny,' and that consequently a claim for arrears of rent did not come within the expression.
13. But the position seems to us to be very different in the present case; here the plaintiffs seek to obtain a decree declaring their title with the evident and avowed object of going before the Collector with that decree in their hands and asking him, upon the strength of it, to expunge the names of the defendants and substitute their own in his books, as the proprietors in actual possession of these bahali lands. That is to say the plaintiffs' ultimate intention is to recover that legal possession, which was declared to belong to the defendants, when the order under the Land Registration Act was made. Not only, therefore, are the plaintiffs 'able to seek further relief,' but it is their object to do so. The two forms of relief are inseparable in this case, and the plaintiffs in omitting to sue for the 'further relief' have debarred themselves from obtaining a mere declaratory decree. This appears to have been pointed out to them from the very first, and yet they failed to avail themselves of the opportunity given to them of amending their plaint. Under different circumstances, we might have been inclined to give them such an opportunity now; [Limba bin Krishna v. Rama bin Pimplu (1888) I.L.R., 13 Bom., 548]. It is under the circumstances insufficient to say, as has been said on their behalf in this Court, that the suit should have been decided upon the merits and not upon a ground not taken by the defendants and in no way misleading them.
14. It was also argued by the learned Counsel for the appellants that the lower Courts, instead of dismissing the suit on this ground, should have treated the suit as one for declaration of the plaintiff's title to a fractional share in an undivided mouza. As, however, the first Court has pointed out, this could not be done in the face of the claim set up in the plaint. That claim was for an adjudication of their right in a particular piece of land, measuring 15 mans odd, and situated in a mouza comprising 30 mans in all; and that being so, it was incumbent upon the plaintiffs to specify by boundaries or otherwise the exact position of the 15 mans claimed.
15. Taking all these circumstances into consideration we think that the lower Courts rightly dismissed the plaintiffs' suit. We dismiss this appeal with costs.