Nidra Rajhansa and Others vs Lord Ram-Laxman-Sita and Others

S. Acharya, J.—Defendants 1, 2, 3, 7 and 8 have preferred this appeal against the decision of the learned Subordinate Judge, Balangir in Title Appeal No. 68/12 of 1970 affirming the decision of the trial Court in Title Suit No. 45167.

Defendant No. 4 has not contested the suit. Defendants 5 and 6 support the Plaintiffs case. Plaintiff No. 1 is a deity and Plaintiffs 2, 3 and 4 claim to be the Sebayats of the said deity.

The suit lands are situated in ex-Sonepur state. The Plaintiffs'' case, in short, is that Rama Gouda was the original royat in respect of the suit lands; the ex-Maharaja of Sonepur resumed the said lands to his own possession, and in 1941 directed settlement of the said lands in favour of the deity Plaintiff No. 1 that order was carried into effect in 1946''; accordingly the suit lands came to be recorded in the Settlement records in the name of the deity showing the other Plaintiffs and/or their ancestors as the Sebayats of the said deity; the Appellants-Defendants in 1949 disbursed the possession of the Plaintiffs over the suit lands and so a proceeding u/s 145, Code of Criminal Procedure was initiated and the suit lands were attached and kept in the custody of the Court. The Plaintiffs allege that in spite of the aforesaid order of attachment they remained and continued in possession of the suit lands. In 1961 as the Appellants Defendants again created disturbance in the Plaintiffs'' possession of the said lands, another proceeding u/s 145, Code of Criminal Procedure was initiated and the lands again were attached as per the order passed in that proceeding. Criminal Revision No. 355/63 was filed in this Court against an order passed in the said proceeding, and in that Revision it was ordered that the lands would remain under attachment as ordered in the previous proceeding u/s 145. Code of Criminal Procedure and that the parties should get their right, tide and interest declared in the civil Court. Hence the Plaintiffs instituted this suit.

According to the Appellants Defendants they are the descendants of Ranta Gouda, the original royat; they do not know of the resumption of the lands by the ruler as alleged by the Plaintiffs; they (the Appellants) continued in possession of the lands all through, and it was the Plaintiffs who tried to oust the Appellants-Defendants from their possession of the said lands. They further claim that if there was any such resumption proceeding, they have perfected their title to the lands by long continued possession against the interest of the Plaintiffs.

Both the Courts have found that the ex-Raja of the Sonepur state had resumed the lands from the possession of the original royat and had settled the same with Plaintiff No. 1; Plaintiffs 2, 3 and 4 are the Sebayats of the deity and Defendants 5 and 6 are the trustees of the said deity; after the settlement of the lands" with'' Plaintiff No. 1 in" the year 1946 Plaintiff No. 1 came to possess the same through its Sebayats, the present Plaintiffs 2 to 4 and their ancestors, and they continued in possession of the same till the lands were attached in the proceeding u/s 145, Code of Criminal Procedure of the year 1949. The Appellants case that they were in possession of the lands till 1961 and they have acquired adverse possession over the said lands has been disbelieved by both the Courts.

Mr. Sinha made an effort to assail the above-mentioned concurrent findings of fact in favour of the Plaintiffs, but could not make out any convincing ground on which the said findings of fact could be assailed in this second appeal. On a perusal of the evidence on record and the impugned judgment, I am satisfied that the said findings have been arrived at on proper discussion and consideration of the evidence on record, and I do not see any reason to interfere with the said findings.

Mr. Sinha at last raised the question of maintainability of this suit only for declaration of title without a prayer for delivery of possession of the suit lands. The question raised by Mr. Sinha has been directly decided in the case reported in Deokuer and Another Vs. Sheoprasad Singh and Others, wherein their Lordships have stated as follows:

The authorities clearly show that where the Defendant is not in possession and not in a position to deliver possession to the Plaintiff, it is not necessary for,

the Plaintiff in a suit for a declaration of title to property to claim possession: See Sunder Singh Malian Singh Sanatan Dharam High School Trust v. Managing Committee, Sunder Singh Mallah Singh Rajput High School AIR 1938 P.C. 79. Now it is obvious that in the present case, the Respondents were not in possession after the attachment and were not in a position to deliver possession to the Appellants. The magistrate was in possession, for whomsoever, it does not matter, and he was not of course a party to the suit. It is pertinent to observe that in AIR 1943 94 (Privy Council) it has been held that the further relief contemplated by the proviso to Section 42 of the Specific Relief Act is relief against the Defendant only. We may add that in K. Sundaresa Iyer v. Sarvajana Sowkiabi Virdhi Nidhi Ltd. A.I.R 1939 Mad 986, it was held that it was not necessary to ask for possession when property was in custodia legis. There is no doubt that property under attachment u/s 145 of the Code is in oustodia legis. These cases clearly establish that it was not necessary for the Appellants to have asked for possession.

The Madras High Court took the same view on this point in the case reported in Malaivya Pillai v. T. Perumal Pillai and others ILR 36 (1913) Mad. 62.

The suit lands in the present case undoutedly were under attachment as per the order passed in the 145 proceeding j and so as the property was in custodia legis it was not necessary for the Plaintiffs to ask for the consequential relief of delivery of possession in this case. I do not therefore find any merit in the above mentioned contention of Mr. Sinha.

There is no merit in this appeal, and it is accordingly dismissed. Each party will bear his own costs of this Court.