T DEVARAJULU NAIDU Vs. KONDAMMAL

JUDGEMENT

(1.) The plaintiffs sue for a declaration that; they are entitled to the properties in the plaint A and B schedules and the value of the schedule properties. There was a dispute likely to lead to a breach of the peace, with reference to these properties, between the plaintiffs and the defendants and the matter was taken up by the Magistrate under Section 145 of the Criminal P. C.. The Magistrate's order, which was read to me, shows that, finding himself unable to say which party was in possession of the properties, he directed the properties to be attached under Section 146, Criminal Procedure Code, and placed them in the possession of a Receiver, pending the decision of the Civil Court, in favour of one or other of the parties. It is as a result of that order that this suit has been brought by the plaintiffs for an adjudication, as stated above, that they are the persons entitled to the properties.

(2.) It is objected in Second Appeal in limine that the suit as brought; is not maintainable, that plaintiffs ought to have sued for possession of the properties as well, and that they are not entitled to ask for a mere declaration, under Section 42 of the Specific Relief Act. On the authorities I do not think that this contention can be supported.

(3.) The Magistrate, by his order, has placed the properties in the possession of the Receiver and that Receiver must be taken to be in possession, on behalf of persons properly entitled to the properties.