A.K. Janah, J.
1. This Rule is directed against the judgment and order dated October 5, 1972 passed by the Additional District Judge. 12th Court, Alipore in Misc. Appeal No. 133 of 1972. By the said order the learned Additional District Judge set aside the order passed by the learned Subordinate Judge, 2nd Court, Alipore rejecting the application filed by the plaintiff-opposite party for appointment of a Receiver in respect of the suit property.
2. The opposite party who is the son of the petitioner, filed a suit, namely. Title Suit No. 32 of 1971 for declaration of title to premises No. 54/1/1, Hazra Road. Calcutta, and for injunction, accounts and other reliefs. In the said suit the opposite party alleged that his grandfather, late Mahendra Nath Banerjee who was the owner of certain properties left a Will by which his two sous, namely. Hrisikesh and Kumud Ranjan, the defendant each got 1/3rd share of the properties in lifetime interest and the remaining 1/3rd share was bequeaihed to the testator's widow Nalinibala. The Will further provided that on the death of Nalinibala her 1/3rd share would go to Ajit and Adhir, the two sons of Bhadreswar, who was another son of the testator. There was another provision in the will that when the youngest of the testator's grandsons who were then in existence would attend the age of 30 years the grandsons of the testator would get the properties left by the deceased according to their respective father's share. The plaintiff opposite party alleged that at the time of execution of the Will Adhir was the youngest grandson of the testator and Adhir attended the ago of 30 years on February 13, 1960. It was further alleged that the plaintiff-opposite party was born subsequent to the date of the execution of the Will and in terms of the provisions contained in the Will the plaintiff had become absolute owner of the properties left by Mahendra and he claimed that the properties given to his father the defendant in lifetime interest had devolved upon him on Adhir attaining the age of 30 years. One of the properties left by Mahendra was premises No. 108/4, Ultadanga Main Road. That property fell to the share of the defendant Kumud Ranjan on the basis of a decree passed on compromise in Title Suit No. 85 of 1939 of the 2nd Court of the Additional Subordinate Judge, Alipore, which was instituted by Ajit and Adhir, the sons of Bhadreswar. The said property at Ultadanga Main Road was acquired by the Calcutta Improvement Trust and in terms of the Will the youngest grandson of the testator having attained the age of 30 years in the meantime the plaintiff-opposite party became the owner of the said property and accordingly the compensation money amounting to Rs. 1,19,281.25 p. was deposited in the State Bank of India in the name of the plaintiff. The plaintiff-opposite party alleged that the suit property i.e. premises No. 5/1/1, Hazra Road was purchased in the benami of the defendant and the consideration money was paid primarily out of the compensation received from the Calcutta Improvement Trust. The plaintiff-opposite party alleged that the defendant was in possession of the entire second floor and the mezzanine floor of the disputed premises and the remaining portion of the said premises were Jet out to tenants. The plaintiff-opposite party further alleged that the defendant wrongfully and illegally and in breach of trust denied the plaintiff's right, title and interest in the said property and he, therefore, instituted the suit for the reliefs mentioned above.
3. The defendant petitioner contested the application for appointment of a Receiver. It was alleged that the application for appointment of a Receiver was not maintainable and the plaintiff opposite party had no possession in the said premises and he never acquired any title thereto. It was claimed that the suit property was acquired by the defendant with his own funds and for his own benefit. It was alleged that on the strength of the Will the defendant became the owner of the property at Ultadanga Main Road and, therefore, even if the suit property was acquired with the compensation money the plaintiff could not claim any title to the disputed property.
4. The learned Subordinate Judge rejected the application for appointment of a Receiver primarily upon the ground that under the provisions of the Will the plaintiff could not claim to be the owner of the property left by his grandfather during the lifetime of his father. He, therefore, found that the plaintiff was not entitled to claim the compensation money for the acquisition of the Ultadanga Main Road property. This finding was arrived at by the learned Subordinate Judge although in the beginning of the order he himself stated that in an interlocutory application for a Receiver the Court usually confines itself strictly to the point which it is called upon to decide and will not go into the merits, since the court is bound to express its opinion only to the extent necessary to show the ground upon which it disposes of the application. But from the finding arrived at by him on the basis of which he had ultimately disposed of the application for appointment of a Receiver it would appear that the learned Subordinate Judge has recorded a finding on the merits of the suit itself. He has construed the Will and has come to the finding that during the lifetime of the defendant the plaintiff-opposite party could not claim any of the properties obtained by the defendant in his 1/3rd share under the Will. In the appeal preferred against the order of the learned Subordinate Judge the learned Additional District Judge has, in our opinion, approached the question from the correct point of view. He has considered both the provisions contained in the Will and the claim put forward by the respective parties. He has also found that the plaintiff-opposite party had clearly established a prima facie case regarding payment of the consideration money out of the compensation for the acquisition of the Ultadanga Main Road property. The learned Additional District Judge has also taken into consideration the fact that the defendant was in physical possession of some portion of the disputed house and that some other portions were in possession of the tenants. In the circumstances the learned Additional District Judge rightly allowed the application for appointment of a Receiver. We would not have interfered with the order passed by the learned Additional District Judge but for one objection raised before us by Mr. Mitra, learned Advocate for the petitioner.
5. The objection is that there being no prayer for recovery of the possession in the plaint the application for appointment of a Receiver is not maintainable. Mr. Mitra submits that the plaintiff being admittedly out of the possession ought to have prayed for the recovery of possession. Such a prayer not having been made the suit is hit by the proviso to Section 34 of the Specific Relief Act, 1963. The proviso to Section 34 bars a Court from making a declaration in favour of any person entitled to any legal character or to any right as to any property where the plaintiff being able to seek further relief than a mere declaration of title emits to do so. In support of this contention Mr. Mitra has relied upon the decision in Anilabala Debi v. Madhabendu Narain Roy, (1942) 46 Cal WN 20 also reported in AIR 1942 Cal 245. In that case one of the points for consideration was similar to that which has arisen in the present case, namely, where the plaintiff is out of possession but in his suit for declaration of title he does not pray for recovery of possession but prays for injunction against the defendant, whether injunction can be considered to be 'further relief' within the meaning of Section 42 of the Specific Relief Act, 1887. In that case their Lordships after considering several decisions both of this Court as well as the Judicial Committee held that:
'Where the plaintiff whose title is denied by the defendant is out of possession, the 'further relief would be recovery of possession and a suit for declaration of title will not be maintainable unless the plaintiff prayed for possession also. If, however, the plaintiff is out of possession but the defendant is not in possession or is not in a position to deliver possession to the successful plaintiff, injunction would be the 'further relief'.'
Mr. Mitra also relied upon a decision of this Court in Kalipada Mondal v. Kalicharan Mondal, AIR 1949 Cal 204 in support of his contention that without a prayer for recovery of possession the present suit is not maintainable. In that case it was held that if the plaintiffs are out of possession and the benamdars are in possession, the recovery of possession from the benamdar is 'further relief' which the plaintiffs ought to pray for, when praying for a declaration and in the absence of such a prayer for the 'further relief' the Court must refuse to give a mere declaration.
6. Mr. Roy appearing on behalf of the opposite party contended that in the present suit the plaintiff opposite party did ask for an injunction against the defendant and such a prayer was 'further relief' within the proviso to Section 34 of the Specific Relief Act, 1963. He argued that the said proviso docs not contemplate that all possible reliefs which the plaintiff can ask for would be 'further relief' under the proviso. He argues that there is nothing in law to compel a plaintiff to ask for all the reliefs which he can claim in a suit. It was further argued that in such a case the provision of Order 2, Rule 2 Code of Civil Procedure would be rendered nugatory. In support of this contention Mr. Roy invited our attention to decision in Satish Chunder Bhutacharya v. Satya Churn Majumdar, (1910) 14 Cal WN 576. In that case the lands in respect of which the declaration was sought for were in possession of tenants, and the defendant had thrown a cloud on the plaintiff's title. It was under these circumstances that it was held that the plaintiff in that suit could not ask for any further relief than a mere declaration of title. The decision in that case, in our opinion, can therefore have no application to the present case. The next case relied upon by Mr. Roy is Yamuna Bai v. Ram Mabaraj Sridhar Maharaj Pandit, AIR 1960 Bom 463. In that case also, it will be noticed that the defendants were in constructive possession through tenants, and the plaintiffs wanted to have constructive possession only. On these facts it was held that the utmost that the plaintiff could ask for, or obtain, against the defendants is a declaration of rights, binding the defendants, coupled with an injunction, preventing them from interfering with such rights. The plaintiff is not bound to ask for actual physical possession from the tenants. For the same reason, therefore, the decision in that case is no authority for our present purpose in this case. Reliance was also placed on a decision of the Supreme Court in C. Mohammad Yunus v. Syed Unnissa, : 1SCR67 . That case also, in our opinion is quite distinguishable on facts. In that case the plaintiffs filed a suit for declaration that they were entitled to enjoy the properties described in the schedule to the plaint and to manage the Durgah, perform the 'Urs' festival and receive all 'incomes, endowments and perquisites thereof once in every eight years' since 1934 according to their turn. They also claimed an injunction restraining Abdul Wahid from interfering with their rights in that behalf. It was in this context that their Lordships of the Supreme Court held that:
'A suit for declaration with a consequential relief for injunction, is not a suit for declaration simpliciter, it is a suit for declaration with further relief. Whether the further relief claimed in a particular case as consequential upon a declaration is adequate must always depend upon the facts and circumstances of each case.'
The decision of the Supreme Court in this case, therefore, does not help Mr. Roy. Mr. Roy also referred to certain other decisions but all these cases are quite distinguishable on facts and none of these decisions has laid down that under similar facts as in the present case a suit for declaration and injunction would be maintainable without a prayer for recovery of possession. It is not necessary for us to refer to these decisions. In our opinion the two cases relied upon by Mr. Mitra are direct authorities on the point raised before us and we are bound to follow those decisions. We accordingly hold that the present suit is barred by the proviso to Section 34 of the Specific Relief Act, 1963 and the suit is not maintainable without a prayer for recovery of possession.
7. After the hearing proceeded for sometime an application was filed on behalf of the opposite party under Order 6, Rule 17 of Code of Civil Procedure for amendment of the plaint. In that application the plaintiff opposite party prayed for recovery of khas possession from the defendant, of the portion of the suit premises, occupied by the defendant. The plaintiff proposes to value the suit at Rs. 1,62,600/- in place of Rs. 7500/-which was the original valuation. Certain other amendments have also been prayed for. On behalf of the petitioner Mr. Mitra did not oppose the application for amendment although an affidavit-in-opposition to the amendment application was filed by his client. But Mr. Mitra has raised the question as to what would be the class of suit under which the plaint, after the amendment will fall, and what would be the court-fee payable on the plaint. It appears from the statements made in the application for amendment of the plaint filed on behalf of the opposite party that the suit would come under Section 5(v)(a) of the West Bengal Court-fees Act, 1970. According to Mr. Mitra, however, Section 7(v) applies if Section 7(vi) does not apply. Again, according to him, although Section 7(vi) does not apply Section 7(v) does not also apply because Section 7(iv)(b) is applicable. Mr. Mitra submits that there would be a good deal of difference in the two cases because Section 7(iv) refers to the value of the relief claimed by the plaintiff, whereas Section 7(v) refers to the market value of the property. Mr. Mitra has further submitted that any question relating to the valuation of a suit has to be determined by the trial court under Section 16 of the Act, and therefore, this question is to be agitated by the parties before the trial court, The controversy between the parties regarding the valuation of the suit and the court-fees payable and also the class of suit under which it will fall, need not, and cannot be decided by us in this revision case. That is a matter which is for the trial court to consider.
8. Having regard to the controversy between the parties and also the facts and circumstances appearing from the materials before us we are of the opinion that the application for amendment of the plaint filed on behalf of the plaintiff opposite party in this Court on April 30, 1973, should be allowed in the interest of justice. We, therefore allow the amendment of the plaint as prayed for in the said application. The plaintiff opposite party is granted time to put in the balance of the required amount of court-fees after such amendment of the plaint within 6 weeks from the date of receipt of the records by the trial court. Since the Lower Appellate Court would not, after the amendment has been allowed, have jurisdiction to hear the appeal from the order of the trial court refusing the plaintiff's prayer for appointment of a Receiver, the judgment and order of the Lower Appellate Court has to be set aside, although on merits we were quite prepared to uphold the said order as already observed. As the trial court approached the case from an erroneous point of view and as it dismissed the plaintiff's application on the ground that the plaintiff had failed to prove his title to the disputed property the order passed, by the trial court must also be set aside.
9. In the result, this Rule is made absolute in the manner and to the extent indicated above. In the circumstances we make no order as to costs. The matter will now go back to the trial court and the learned Subordinate Judge will dispose of the objection raised by the defendant petitioner with regard to the valuation of the suit after hearing both the parties and will thereafter consider the plaintiff's application for appointment of a Receiver in the light of the observations made in this judgment.
10. Let the records together with the application under Order 6, Rule 17 read with Section 151, Code of Civil Procedure filed on behalf of the plaintiff opposite party in this Court on April 30, 1973 be sent down to the trial court forthwith.
11. I agree.