Date of Order:
8 April 1965
Bench:
Sarkar, A.K
Parties:
PETITIONER:
DEOKUER & ANR.
Vs.
RESPONDENT:
SHEOPRASAD SINGH AND ORS.
SUBJECT
- The appellants and respondents filed a property dispute suit, attaching the property by Magistrate. The appellants sought declaration of title but did not seek relief. The trial court decreed the suit, but the High Court set it aside due to failure to sue for possession.
- In a lawsuit for a declaration of title, a plaintiff cannot assert ownership if the defendant is not in possession or in a position to provide it. The authority’s case, Sunder Singh Mallah Singh Sanatan Dharm High School, demonstrates this.
- The appeal was hence approved.
IMPORTANT PROVISIONS
- Specific Relief Act (Act 1 of 1887), Section 42: Declaratory suit; disputed property attached under Section 146 of the Criminal Procedure Code; failure to file a claim for relief of possession; inability to file claim.
OVERVIEW
- The appellants and respondents filed a property dispute, attaching the property under s. 145 of the Criminal Procedure Code. The appellants filed a suit for declaration but did not pray for consequential relief. The trial court decreed the suit, but the High Court set it aside.
- The trial court decreed a suit, but the High Court set it aside due to failure to sue for possession. The appeal was filed with a certificate of fitness.
ISSUES RAISED
- Whether in view of the attachment, the appellants could have in their suit asked for the relief for delivery of possession to them.
ARGUMENTS ADVANCED BY THE APPELLANT
- It was argued that some deeds were invalid and ineffective because the first party of the defendants had no right or title to the property under them.
ARGUMENTS ADVANCED BY THE RESPONDENT
- The respondents claim that when an attachment is made pursuant to Section 145 of the Code, the situation is different and that the magistrate retains possession for the party whom he finally determines to have been in possession at the time the First Order under Section 145 was made.
JUDGEMENT ANALYSIS
- The attachment under s. 145 in the case is ongoing, and no decision has been made. In a suit for declaration of title, it is not necessary to ask for further relief of delivery of possession. The magistrate holds possession on behalf of the party found in possession, but it is unnecessary to express opinion on whether the magistrate actually does so.
- The authority’s case, Sunder Singh Mallah Singh Sanatan Dharm High School, demonstrates that a plaintiff cannot claim possession in a suit for a declaration of title if the defendant is not in possession or in a position to deliver it. The magistrate was in possession, but not a party to the suit.
- In Dukkan Ram v. Ram Nanda Singh, a contrary view was taken, stating that the declaratory decree in favor of the plaintiff would not be binding on the magistrate. The judge ruled that the suit for a declaration without a claim for relief for possession would still be competent, as it is not necessary to ask for relief of delivery of possession when the defendant is not in possession and cannot deliver possession.
- The case was not correctly decided, and no other case taking that view was brought to the court’s notice.
- The appeal was hence allowed, but High Court’s merits were not decided.
