1. This is an appeal on behalf of the plaintiff in a suit for declaration of title to land and for confirmation of possession thereof. The plaintiff alleges that the landlord-defendants have fraudulently brought his property to sale, that they have collusively obtained delivery of symbolical possession through Court, and, that by reason of their unauthorised interference with his possession, proceedings under Section 145, Criminal Procedure Code, have terminated unfavourably to him. Under these circumstances, the plaintiff asserts that he has not lost actual possession of the land in suit and prays for declaration of title and confirmation of possession. The claim was resisted on the merits, and also on the ground that the suit was not properly framed. The Court of first instance overruled all the objections of the defendants and made a decree in favour of the plaintiff. Upon appeal, the Subordinate Judge has not discussed the case on the merits but has held that, inasmuch as the plaintiff had failed to prove his possession at the commencement of the suit, it is barred under the proviso to Section 42 of the Specific Relief Act.
2. On behalf of the appellant it has been argued that the proviso to Section 42 of the Specific Relief Act does not operate as a bar to this suit because in addition to a prayer for declaration, there was a prayer for consequential relief, namely, confirmation of possession. On behalf of the respondents, it has been contended that the suit is not maintainable because the effect of the order under Section 145, Criminal Procedure Code, was to dispossess the plaintiff in the eye of the law, and he was consequently bound to ask for recovery of possession. In our opinion, the ground assigned by the Subordinate Judge, as also that advanced in this Court in support of his decree, is wholly unfounded.
3. An examination of the plaint shows that the suit was not framed as one for a pure declaration. There was a prayer for confirmation of possession, which, as has been uniformly held in this Court, is a prayer for consequential relief, Goburdhun Dass v. Munnoo Lall 15 W.R. 95; Dinobundhoo Chowdhry v. Rajmohini Chowdhrain 16 W.R. 213; Bohuroonissa Bibee v. Kureemoonissa Khatoon 19 W.R. 18; Joy Narain Giree v. Greesh Chunder Mytee 22 W.R. 438 : 15 B.L.R. 172. The view taken by the Subordinate Judge cannot, therefore, be supported.
4. In so far as the new ground, assigned by the respondents in this Court, is concerned, it divides itself into two branches; namely, first, that the effect of the order under Section 145, Criminal Procedure Code, was to dispossess the plaintiff and to make it obligatory upon him to sue for recovery of possession; and, secondly, that as the suit has been framed as one for declaration of title and for confirmation of possession upon the allegation that the plaintiff was in possession at the commencement of the suit, the Court is bound to dismiss it, if it transpires from the evidence that the plaintiff was not in possession as alleged.
5. In support of the first branch of this argument, reliance has been placed upon the cases of Ram Mundur v. Janki Pershad 12 C.L.R. 139 and Administrator-General of Bengal v. Bhagaban Chandra Roy Chowdhuri 15 C.W.N. 758 : 10 Ind. Cas. 531; and reference has also been made to the decision of the Judicial Committee in Denamoni Chowdhrani v. Brajo Mohini Chowdhrani 29 C. 187 : 6 C.W.N. 386 : 12 M.L.J. 83 : 29 I.A. 24 (P.C.). The decision last mentioned is an authority for the proposition that orders for possession under Section 145 of Act X of 1882, and the corresponding sections of earlier statutes, are merely Police orders made to prevent breaches of the peace and decide no question of title; this principle is plainly of no assistance to the respondents. In so far as the case of Ram Mundur v. Janhi Pershad 12 C.L.R. 139 is concerned, it is sufficient to state that the Court was there called upon to consider the effect of an order under Section 59 of the Land Registration Act. Tinder that section, the Civil Court summarily determines the right to possession, and the party in whose favour the decision is given, is ultimately placed in possession. The position may well be maintained that an order of this character, when followed by delivery of possession, operates as dispossession of the unsuccessful party. The only question raised, however, in the case of Ram Mundur v. Janhi Pershad 12 C.L.R. 139 was whether, under these circumstances, a suit for pure declaration could be maintained. The Court was not called upon to consider, whether, if the suit had been framed as one for confirmation of possession, the Court would have been bound to dismiss the suit as framed. But we may observe that no useful anology can be drawn, from a consideration of the provisions of the Land Registration Act and, notwithstanding a dictum appareutly to the contrary in Administrator-General of Bengal v. Bhagaban Chandra Roy Chowdhuri 15 C.W.N. 758 : 10 Ind. Cas. 531 the proposition cannot be comprehensively laid down that in every case where an order under Section 145, Criminal Procedure Code, has been made, the necessary consequence is the actual dispossession of the unsuccessful party. The first branch of the argument of the respondents cannot, therefore, prevail.
6. In support of the second branch of the contention of the respondents, it has been argued that where a plaintiff has sued for confirmation of possession upon an allegation that he was in possession at the date of the institution of the suit, the Court is bound to dismiss the suit if it transpires that the plaintiff, as a matter of fact or of law, was not in possession at the date of the commencement of the action. This position is supported neither by principle nor by authority. If a plaintiff asks for confirmation of possession, he seeks consequential relief within the meaning of Section 42 of the Specific Relief Act. Consequently, no question arises as to the effect of the proviso to that section. No question also arises as to the jurisdiction of the Court. The only objection which can possibly be taken is that the consequential relief which the plaintiff may be really entitled to obtain, namely, recovery of possession, id different from the consequential relief which he has actually sought, namely, confirmation of possession. In our opinion, it would be a meaningless technicality in this class of cases to dismiss a suit on the ground that the relief which the plaintiff is entitled to obtain is different from the relief he has actually sought. This view has been uniformly taken by this Court since 1871 as is shown by the cases of Moulvie Abdoollah v. Shah Nujeesooddeen 16 W.R. 27; Rash Dharee Singh v. Nuthoonee Singh 24 W.R. 301; Kashee Nath Mookerjee v. Mohesh Chunder Goopto 25 W.R. 168; Amir Hossein v. Imam Bandi Begum 11 C.L.R. 443 and Champu Dai v. Uma Dai 11 C.L.R. 451. We must hold accordingly that the suit should not have been dismissed on the ground assigned by the Subordinate Judge, and further that it is not liable to be dismissed on the grounds formulated by the respondents for the first time in this Court.
7. The result is that this appeal is allowed, the decree of the Subordinate Judge set aside and the case remanded to him in order that the appeal may be heard on the merits. The appellant is entitled to his costs in this Court. We assess the hearing fee at five gold mohurs.
8. We may point out that the Court-fee paid on the plaint appears to be insufficient. When the case goes back to the Subordinate Judge, he will call upon the plaintiff to pay Court-fees ad valorem upon the claim as set out in the plaint; if the plaintiff refuses to carry out the order of the Court, his suit will be liable to be dismissed.