PEERJI MUHAMMAD NAZIR Vs. NASIMUDDIN AHMAD

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for a declaration that the plaintiffs are owners and in possession of the properties specified in the plaint and that the defendants have no proprietary right in them. The properties in dispute consist of certain houses occupied by raiyats on lands said to be appertaining to a dargah; open ground as well as certain lands comprised in khewat No. 48 and measuring about 10 bighas and 13 biswas. The plaintiffs case as put forward in the plaint was that these properties had been granted to their ancestor and had devolved upon them exclusively but the defendants who had no title to these properties were actually offering obstruction to he collection of rents by the plaintiffs and alleging themselves to be co-owners "he said properties and were trying to make collections of rant as well as of offerings to the shrine. The plaintiffs did not ask for any specific consequential relief by way of ejectment or injunction, but added the general prayer for such other relief as the Court may consider beneficial. The claim was contested by the defendants, who can be classified into three groups, and one of the pleas taken was that a mere declaratory relief was barred by Section 42, Sp. Rel. Act. The learned Subordinate Judge has not gone into the merits of the case so far as the title to the property is concerned but has considered the evidence relating to the possession of the respective parties. He has come to the conclusion that the defendants and the plaintiffs are in joint possession of the properties and that therefore the plaintiffs were bound to sue for possession and the declaratory relief will be inefficacious for the purposes of this suit.

(2.) The plaintiffs have come up in appeal to this Court and on their behalf it is urged that they were not bound to ask for possession or any other consequential relief. (Here his Lordship considered the evidence and concluded as follows). On this state of the evidence we must affirm the finding of the Court below that both the parties are in joint possession of the properties and that the plaintiffs are not in exclusive possession of the same. The learned advocate for the appellant has next contended that even on that finding the plaintiffs were not bound to ask for any consequential relief. The point taken by him is that this is not a case of actual physical possession of the property, but that the actual possession is in the hands of tenants who only pay rents to the proprietors. It is therefore urged that a declaratory decree would suffice, for after the passing of such a decree, the tenants and raiyats would pay rents to the plaintiffs and would decline to pay rents to the defendants.

(3.) The fact, however, remains that the defendants are in joint possession of these properties in almost the same way as the plaintiffs are. A mere declaratory decree would not be capable of execution. It would leave the position of the parties just as it is at present. Unless therefore the defendants are either ejected from these properties or the plaintiffs are given exclusive possession over the same or an injunction is granted against the defendants restraining them from interfering with the possession of the plaintiffs, the declaratory decree would be wholly infructuous and futile. This is not a mere case of a scramble for possession, where it is doubtful whether a party is in possession, nor is it a case where tenants have declined to pay rent until the title of the real owner is determined. Both parties being in possession we are of opinion that a mere declaratory decree would be wholly insufficient to meet the needs of this case.