JHUMAN KARTI Vs. DEBU LAL SINGH

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiff in a suit for declaration of title to land and for confirmation of possession thereof. The plaintiff alleges that the landlord-defendants have fraudulently brought his property to sale, that they have collusively obtained delivery of symbolical possession through Court, and, that by reason of their unauthorised interference with his possession, proceedings under Section 145, Criminal Procedure Code, have terminated unfavourably to him. Under these circumstances, the plaintiff asserts that he has not lost actual possession of the land in suit and prays for declaration of title and confirmation of possession. The claim was resisted on the merits, and also on the ground that the suit was not properly framed. The Court of first instance overruled all the objections of the defendants and made a decree in favour of the plaintiff. Upon appeal, the Subordinate Judge has not discussed the case on the merits but has held that, inasmuch as the plaintiff had failed to prove his possession at the commencement of the suit, it is barred under the proviso to Section 42 of the Specific Relief Act.

(2.) On behalf of the appellant it has been argued that the proviso to Section 42 of the Specific Relief Act does not operate as a bar to this suit because in addition to a prayer for declaration, there was a prayer for consequential relief, namely, confirmation of possession. On behalf of the respondents, it has been contended that the suit is not maintainable because the effect of the order under Section 145, Criminal Procedure Code, was to dispossess the plaintiff in the eye of the law, and he was consequently bound to ask for recovery of possession. In our opinion, the ground assigned by the Subordinate Judge, as also that advanced in this Court in support of his decree, is wholly unfounded.

(3.) An examination of the plaint shows that the suit was not framed as one for a pure declaration. There was a prayer for confirmation of possession, which, as has been uniformly held in this Court, is a prayer for consequential relief, Goburdhun Dass v. Munnoo Lall 15 W.R. 95; Dinobundhoo Chowdhry v. Rajmohini Chowdhrain 16 W.R. 213; Bohuroonissa Bibee v. Kureemoonissa Khatoon 19 W.R. 18; Joy Narain Giree v. Greesh Chunder Mytee 22 W.R. 438 : 15 B.L.R. 172. The view taken by the Subordinate Judge cannot, therefore, be supported.