NARASINGHA PADHI Vs. SASIBHUSAN TRIPATHY

JUDGEMENT

(1.) Unsuccessful defendants are in appeal against confirming judgment and decree of the learned Subordinate Judge passed in Title Appeal No. 10 of 1982.

(2.) PLAINTIFF 's case, briefly stated, is that his father acquired the suit house by virtue of a registered sale deed dated 8 -11 -1934 from one Smt. Budhi Sahuani and since purchase, he possessed the same as owner thereof. Deceased defendant No. 1 a relation of the plaintiff through his paternal grand -mother lost all his properties during) his father's life -time. So plaintiff's father took pity on him and gave him shelter in the suit house. But in the year 1874, defendant No. 1 asserted his title over the suit house and approached the local Police for help. Consequently, the Police initiated a 145 proceeding between the parties which is still subjudice in the Court. In the said proceeding, house was attached and kept under a receiver. Since deceased defendant No.1 claimed the suit house as his own, the plaintiff filed the present suit for declaration of his title without praying for recovery of possession since the house is under attachment.

(3.) Coming to the case in hand, undisputedly there is a proceeding under Section 146, Cr PC in which the suit house has been attached under Section 146(1). Deference in this context may be made to the orders of the Executive Magistrate (Ext. 9). Since the house is in the custody of the Court in the possession of the defendants, the plaintiff could not have prayed for consequential relief, that is, recovery of possession. In this view of the matter, I would hold that the present suit for declaration without there being prayer for recovery of possession is maintainable.