MEHARCHAND DASversusLAL BABU SIDDIQUE AND ORS.

A                              MEHARCHAND DAS
                                         v.
                        LAL BABU SIDDIQUE AND ORS.

                                JANUARY 17, 2007

B                [S.B. SINHA AND MARKANDEY KATJU, JJ. ]

         Specific Relief Act, s.34-Mere suit for declaration does not lie if
    plaintiff is· not in possession of suit property.

         Bihar Privileged persons Homstead Tenancy Act, s. 6A-Defendant
c occupying property under the Collector- Latter is a necessary party for
    any title suit- Plaintiff could get relief only if his suit included challenge
    on the ground of fraud and jurisdicticn about obtaining right or parcha
    by defenJant from the collector.

         The appellant-defendant was a tenant under the respondent. He was,
D   however, said to be landless person. A parcha was purported to have been
    granted on or about 29.9.1969 by the Collector in terms ofS.6 of the Bihar
    Privileged Persons Homestead Tenancy Act, 1947. The father of the
    respondents (Nos. 1 to 5) filed a suit for eviction against the appellant. The
    said suit was dismissed on 27.5.1977. No appeal thereagainst was filed.
E   Another suit, however, was filed in the Court ofMunsif on the premise that
    the said Parcha under S. 6(2) of the Act, was issued without jurisdiction
    and the same had been fraudulently obtained.

         The Civil Court decreed the suit. The appeal preferred thereagainst
    by the appellant was dismissed. The High Court dismissed the second
F   appeal holding that the defendent had been in possession and the only relief
    prayed for in the suit was to set aside the order dated 29.9.1969, no
    consequential relief was required to be made for in the suit.

         In appeal to this Court, appellant contended that in view of the express
    bar contained in the proviso appended to Section 34 of the Specific Relief
G
    Act, 1963 the suit was not maintainable and that in any event the Collector
    having not been impleaded as a party, the suit should have been dismissed.

         Allowing the appeal, the Court

H        HELD : 1.1 Admittedly, the appellant was treated to be a tenant by the
                                         1108
             1·

                                MEHARCHAND DAS v. LAL BABU SIDDIQUE                          1109
~       >         respondents. The possession of the appellant, therefore, was not denied and         A
"                 disputed. The suit for eviction which was filed by him was dismissed. The
                  defendent-appellant, therefore, had been in possession of the suit property.
                  In that view of the matter the plaintiffs-respondents could seek for further
                  relief other than for a decree of mere declaration of title. Thus, if the
                  plaintiff is not in possession, a suit for mere declaration would not be
                  maintainable. [Paras 10, 11 & 12) [1112-C-F]                                        B

~       '(             Vinay Krishna v. Keshav Chandra and Anr., [1993] Suppl. 3 sec
                  129, relied on.

                       1.2. Furthermore, the institution of a civil suit was barred in terms
                  of Section 17A thereof, the privileged tenant not having permanent tenancy
                                                                                                      c
                  in homestead is to hold the same under the State Government and the
                  amount of rent payable to the landlord by the privileged tenant in respect
                  thereof would become payable to the State GO\·ernment Once the defendant-
                  appellant claimed title as a privileged tenant in terms of the provisions of
                  the said Act, the relationship oflandlord and tenant came to an end. It was,        D
    ,             therefore, obligatory on the part of the plaintiff-landlord to file suit in terms
                  of Section 18 of the said Act. In absence of a decree passed in such a suit,
                  which would lie only on a limited ground for want of jurisdiction or fraud,
                  the plaintiff-respondent was not entitled to have a decree in his favour in
                  a suit of the nature instituted by him and for the reliefs sought for by him.
                                                                                                      E
                  [Para 13) (1112-G-H & 1113-A)

                       2. Apart from the fact that in such a suit the plaintiff was bound
                  to establish fraud or want of jurisdiction on the part of the collector,
                  to grant a Parcha in favour of the tenant, the Collector was a necessary
                  party. In absence of the Collector therefore, the suit could not have been          F
                  decreed. [Para 14) (1113-F]

                       CIVIL APPELLATE WRJSDICTION : Civil Appeal No. 6413 of 2000.

                       From the Final Judgment and Order dated 18.8.1999 of the High Court
                  of Judicature at Patna in S.A. No. 129 of 1993.                                     G
                                                                                                          \
                                                                                                              \




-       ~
                      S.B. Upadhyay, Sr. Adv., Shiv Mangal Sharma, Santosh Mishra, Rajesh
                  Dubey and Kumud Lata Das for the Appellant.

                       Saba Rahman, Vivek Singh and Navin Prakash for the Respondents.
                                                                                                      H
    1110                   SUPREME COURT REPORTS                    [2007] 1 S.C.R.

A          The Judgment of the Court was delivered. ,by

          S.B. SINHA, J. : L The defendant in the suit is before us aggrieved
    by and dissatisfied with the judgment and decree dated 18.8.1999 passed by
    a learned Single Judge of the High Court of Judicature at Patna in Second
    Appeal No. 29 of 1993 affirming the judgment and decree dated 20.1.1993
B   passed in Title Appeal No. 20/1985 whereby the appeal from judgment and
    decree dated 14.3.1985 passed by the MunsifCourt, Samastipur, in Title Suit
    No. 71/1978, was dismissed.

           2. The basic fact of the matter is not in dispute.

c        3. The appellant herein was a tenant under the respondents. He was,
    however, said to be a landless person. A Parcha was purported to have been
    granted on or about 29.9.1969 by the Collector of Samastipur District, in
    terms of the provisions of Section 6 of the Bihar Privileged Persons
    Homestead Tenancy Act, 1947 ("the Act", for short) , the father of the
D   respondents (Nos. 1 to 5) filed a suit for eviction against the appellant
    herein, purported to be one under Bihar Buildings (Lease, Rent & Eviction)
    Control Act, 1947. The said s~it was dismissed on 27.5.1977. No appeal
    thereagainst was filed . Another suit, however, was filed in the Court of
    Munsif-11, Samastipur, ~hich was marked a~ Title Suit No. 7111978, on the
    premise that the said Parcha under Section 6(2) of the Act, was issued
E   without jurisdiction and the same had been fraudulently obtained.

              4. The reliefs prayed for in the said suits are :

              "(a) On consideration of the above facts the court be pleased to
              set aside the order of the B.D.O., Pusa passed in case 1166/69-70
F             on 29.9.69 u/s. 6(2) of the Act as being without jurisdiction and
              fraudulently obtained.

              (b) Any other relief or reliefs which may be deemed suitable a
              decree to that effect may be passed in favour of the plaintiff against
G             the defendant."

    Sub-section (2) of Section 6 of the Specific Relief Act, 1963 reads as
    under :

              "No suit under this section shall be brought -
H
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                  MEHARCHAND DAS v. LAL BABU SIDDIQUE [SINHA, J.]                       1111

                   (a) after the expiry of six months from the date od dispossession;            A
                   or

                   (b) against the Government"-

                5. One of the contentions raised by the appellant herein in the said suit
          was that in terms of the proviso appended to sub-section (2) of Section 6              B
          of the Act the suit was not maintainable. On a finding that the said Parcha
          was obtained upon committing fraud, the suit was decreed. The appeal
          preferred thereagainst by the appellant was dismissed. In the second appeal
          which was filed by the appellant, the following purported questions of law
          were formulated ;
                                                                                                 c
                   "(i) Whether the suit for setting aside the order dated 29.6.69 in
                   absence of any consequential relief for possession was barred
                   under Section 34 of the Specific Relief Act, in view of the decision
                   of Supreme Court in case of Vinay Kirshna v. Keshav Chandra &
                   Anr., AIR(1993) SC 957?                                                       D
                   (i)  Whether the instant suit was barred for non-joinder of the
                   collector, who was necessary part to the suit?"

                6. The High Court, as noticed hereinbefore, dismissed the second appeal
          inter alia holding that the defendant had been in possession. It, however,             E
          purported to have applied the law laid down by this Court in Vinay Krishna
          v. Keshav Chandra andAnr., [1993] Supple. 3 SCC 129, on the premise that
          as, admittedly; the defendant had been in possession of the suit property and
          the only relief prayed for in the suit was to set aside the order dated 29 .9 .1969,
          no consequential relief was required to be made for in the suit.
                                                                                                 F
                7. Mr. S.B. Upadhayay, learned senior counsel appearing on behalf of
          the appellants would submit that in view of the express bar contained in the
          proviso appended to Section 34 of the Specific Relief Act, 1963, the suit was
          not maintainable. It was submitted that in any event the Collector having not
          been impleaded as a party, the suit should have been dismissed.                        G
               8. Learned counsel appearing on behalf of the respondents, however,

---   )
          supported the impugned judgment.

               9. Section 34 of the Specific Relief Act, 1963 reads as under :
                                                                                                 H
    1112                  SUPREME COURT REPORTS                     [2007] 1 S.C.R

A            "Discretion of Court as to declaration of status or right. - Any
             person entitled to any legal character, or to any right as to any
             property, may institute a suit against any person denying, or
             interested to deny, his title to such character or right, and the Court
             may in its discretion make therein a declaration that he is so
             entitled, and the plaintiff need not in such suit ask for any further
B            relief:

                   Provided that no Court shall make any such declaration where         '{   >-
             the plaintiff, being able to seek further relief than a mere declaration
             of title, omits to do so."
c         I 0. In this case, it stands admitted that the appellant was treated to be
    a tenant by the respondents. The suit property, according to the respondents,
    was a tenanted one. The possession of the appellant, therefore, was denied
    and disputed. It is furthermore admitted that the suit for eviction which was
    filed by him, was as noticed hereinbefore dismissed by the Civil Court on
D   27.5.1977.

          11. The defendant-appellant, therefore, had been in possession of the         1
    suit property. In that view of the matter the plaintiff-respondents could seek
    for further relief other than for a decree of mere declaration of title.

E         12. The High Court, in our opinion, committed a manifest error in not
    relying upon the decision of this Court in Vinay Krishna (supra). The said
    decision categorically lays down the law that if the plaintiff had been in
    possession, then a suit for mere declaration would be maintainable; the
    logical corollary whereof would be that if the plaintiff is not in possession,
    a suit for mere declaration would not be maintainable.
F
          13. Furthermore, the institution of a civil suit was barred in terms of
    Section 18 of the Act. We may also notice that in terms of Section 17A
    thereof, the privileged tenant not having permanent tenancy in homestead
    is to hold the same under the State Government and the amount of rent
G   payable to the landlord by the privileged tenant in respect thereof would
    become payable to the State Government. Once the defendant-appellant
    claimed title as a privileged tenant in terms of the provisions of the said Act,
    the relationship of landlord and tenant come to an end. It was, therefore,
    obligatory on the part of the plaintiff-landlord to file a suit in tenns of
    Section 18 of the said Act. In absence of a decree passed in such a suit,
H
                 MEHARCHAND DAS v. LAL BABU SIDDIQUE [SINHA, J.]                 1113



-       which as noticed hereinbefore, would lie only on a limited group for want
        of jurisdiction or fraud, the plaintiff-respondent was not entitled to have a
        decree in his favour in a suit of the nature instituted by him and for the
        reliefs sought for by him.
                                                                                         A




               Section 2(d) & 2(i) of the Act are as under :
                                                                                         B
                  "'Homestead' means any land which is held on lease or used with
                  the consent, express or implied, of the landlord for residential
                  purposes and includes any building erected thereon, together with
                  any Sohan and Bari appurtenant thereto."

                  '"Privileged person' means a person-                                   c
                  (1) who is not a proprietor, tenure-holder, under-tenure-holder, or
                  a mahajan; and

                  (2) who, besides his homestead, holds no other land or holds any
                  such land not exceeding one acre;
                                                                                         D
    r             but does not include any person who has come into possession of
                  the homestead land in contravention of the provisions of Section
                  20 of the Senthal Parganas Tehancy (Supplementary Provisions)
                  Act, 1949 (Bihar Act XIV of 1949), of section 46 of the Chotanagpur    E
                  Tehancy Act, 19808 (Act VIII of 1985)."

              14. Apart from the fact that in such a suit the plaintiff was bound to
        establish fraud or want of jurisdiction on the part of the Collector, to grant
        a Parcha in favour of the tenant, the Collector was a necessary party. In
        absence of the Collector, therefore, the suit could not have been decreed.       F
              15. We, therefore, have no hesitation to hold that the High Court
        wrongly answered the substantial question oflaw framed by it. The judgments
        and decrees passed by the High Court and the Courts below are, therefore,
        set aside and the appeal is allowed. No costs.
                                                                                         G
        D.G.                                                         Appeal allowed