MEHARCHAND DAS versus LAL BABU SIDDIQUE AND ORS.

Citation: [2007] 1 S.C.R. 1108 · Decided: 17-01-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Judgment (excerpt)

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MEHARCHAND DAS 
v. 
LAL BABU SIDDIQUE AND ORS. 
JANUARY 17, 2007 
[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 
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, 
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. 
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 
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 
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 
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HELD : 1.1 Admittedly, the appellant was treated to be a tenant by the 
1108 
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MEHARCHAND DAS v. LAL BABU SIDDIQUE 
1109 
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respondents. The possession of the appellant, therefore, was not denied and 
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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 
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maintainable. [Paras 10, 11 & 12) [1112-C-F] 
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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 c 
of Section 17 A thereof, the privileged tenant not having permanent tenancy 
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, 
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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. 
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[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 
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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 
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of Judicature at Patna in S.A. No. 129 of 1993. 
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S.B. Upadhyay, Sr. Adv., Shiv Mangal Sharma, Santosh Mishra, Rajesh 
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Dubey and Kumud Lata Das for the Appellant. 
Saba Rahman, Vivek Singh and Navin Prakash for the Respondents. 
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SUPREME COURT REPORTS 
[2007] 1 S.C.R. 
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The Judgment of the Court was delivered. ,by 
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S.B. SINHA, J. : L The defendant in the suit is before us aggrieved 
by and dissatisfied with the judg

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