MUSTT BEGUM NESSA Vs. ANANDIRAM MANKI MURA

JUDGEMENT

(1.) A suit was filed by the present respondent for a declaration that the order of attachment passed under Section 146 of Cr. PC is void ab-initio. The suit land was situated in the Tribal Belt and the defendants are not tribal and they have encroached the land and got the possession, The learned Munsiff dismissed the suit holding that the Civil Court has no jurisdiction. There was an appeal being TA 4/90 before the ADJ at Lakhimpur and the learned Judge came to the finding that the Civil Court has the jurisdiction in such a matter and it can always scrutinise whether the action of the criminal Court is within the bounds of law or within the four corners of law. That power to give the declaration cannot be taken away and having arrived at this finding, he scrutinised the order of attachment and came to the finding that the order of attachment is void-ab-initio. Accordingly the appeal was allowed and the suit was decreed. Hence, this second appeall.

(2.) Heard Mr. K.K.. Mahanta, learned counsel for appellant. None appears for respondents.

(3.) The only argument advanced by Mr. Mahanta, learned counsel is that this suit is hit by the proviso to S.34 of the Specific: Relief Act inasmuch as that the plaintiff could have sought other relief but that has not been sought. In support of this contention, Mr. Mahanta relied on a recent decision of the Apex Court in (1996) 1 SCC 90 (Munilal Vs. Oriental Fire and General Insurance Co. Ltd. & Ann). That was a case where a declaration was sought regarding entitlement of the appellant for the loss of the truck in terms of the contract, but no consequential relief of the payment of quantified amount and it was on that position, the Apex Court pointed out that this suit shall be hit by proviso to S.34 of the Act. This case does not help the appellant inasmuch as in the instant case, it is the specific case of the respondent that if once attachment is quashed, he will continue to be in possession of the land.