P L D 1965 Dacca 38 (PLP)

MURSHED, J.‑‑Petitioners instituted a suit for a mere declaration of their title in respect of a piece of land and did not ask for any other relief. Soon after the filing of the suit they prayed for an injunction against the defendants restraining them from interfering with their possession in the suit land. In the suit instituted by them no such relief was prayed for. The genesis of the suit is, in substance, as follows: The suit land was inherited by two brothers. Plaintiffs are the heirs of one of the said brothers and defendant No. 1 is the daughter of the other .brother. By two registered kabalas defendant No. 1 transferred the suit land to defendants Nos. 2 to

5. It is the plaintiff's' case that, inasmuch as defendant No. 1 was a childless widow, she was not entitled to the suit land as reversionary heir of her father. On the application of plaintiffs for the issuance of temporary injunction, they obtained an interim order and a date was fixed for the hearing of the application, when defendants Nos. 2 to 5 appeared to oppose the said application and plaintiffs prayed for further time for the hearing of the same. Plaintiffs' appli cation for further time was disallowed by the learned Munsif who heard the application. Learned Munsif, on considering the merits of the case, came to the conclusion that plaintiffs had not been able to establish a prima facie case for the said application. Against the aforesaid order passed by the learned Munsif plaintiffs preferred an appeal which was heard and disposed of by a Subordinate Judge of Dinajpur. Learned Subordinate Judge, relying on a decision of the Nagpur High Court in the case of Fakira Mahadaji Marathe v. Mst. Ramsukhibai (A I R 1946 Nag. 428), came to the conclusion that plaintiffs were not entitled to ask for a temporary injunction under Order XXXIX, rule 1 of the Code of Civil Procedure. He, therefore, dismissed the appeal and affirmed the order passed by the learned Munsif. Thereafter plaintiffs obtained the present Rule from this Court in the exercise of its revisional jurisdiction. At the hearing of the Rule the facts stated above were placed before us by the learned Advocate for the petitioners. He has argued that the aforesaid case relied upon by the learned Subordinate Judge has no application to the facts of the present case. Secondly, he has contended that the question as to whether the suit for specific performance is maintain able or hit by section 42 of the Specific Relief Act is a matter which would be decided when the suit itself was tried out. On the application as made before the Courts below the question involved is, whether the plaintiffs have succeeded in making out a prima facie case for the issuance of an order which they had prayed for. We do not think that the aforesaid contentions of the petitioners have, in their ultimate analysis on the facts of the present case, any substance. In the present case petitioners merely instituted a suit for the declaration of their title to the suit land without asking for any consequential relief. We respect fully agree with the observations of Bose, J. in the aforesaid case (A I R 1946 Nag. 428) that a suit for declaration of title simpliciter is a suit directed towards the establishment of an incorporeal right and is something dehors its disposition, such as the question of possession. In this view of the matter, petitioners are not entitled to maintain an application of this nature, namely, one asking for injunction against the defendants not to interfere with the plaintiffs' alleged possession of the suit land. We would like to add further the present application is, in essence and in substance, a contrivance to escape the provisions of a statute, namely, the Court Fees Act. To allow the peti tioners to maintain such an application would amount to granting a premium on such evasion. Petitioners could have prayed for an appropriate consequential relief in the suit itself; but they did not choose to do so. They are, therefore, not entitled to maintain the present application apart from the question whether they are entitled to maintain the suit itself, being hit by the provisions of section 42 of the Specific Relief Act. We are also of opinion that, on the merits of the application, petitioners are not entitled to succeed in the prayer they have made in the present case. On the petitioners' own case, defendant No. 1, namely the transferor of defendants Nos. 2 to 5, is prima facie a co‑sharer of the petitioners and is also, by a consequential legal presumption, a prima facie co‑possessor of the suit land along with other lands inherited by the petitioners. Petitioners have, in the plaint filed by them, averred facts and circumstances which may possibly disentitle defendant No. 1 to the suit land; but this is a matter which can be decided when the suit itself is tried out. Before such trial it must be held that, in accordance with law, defendant No. 1 has prima facie title to the suit land and, in consequence thereof, there is a presumption of possession in her favour. The position, therefore, is that the petitioners have not merely failed to make out a prima facie case of title to and possession of the suit land, but that, on their own averment, they have established such prima facie case in favour of the defendants. Such prima facie case maybe dislodged by sufficient evidence in the trial of the suit. The balance of convenience is also in favour of the opposite parties. In the event of petitioners' succeeding in their suit, they can recover possession of the land from the defendants if they (plaintiff‑petitioners) have been dispossessed during the pendency of their declaratory suit in which no other relief has been asked for. It is clear that neither on the principles enunciated above nor on the merits of the present case petitioners are entitled to succeed in this application. Learned Advocate for the petitioners has argued that the Courts below did not approach the present case from the points of view indicated above. We agree that the aforesaid questions were not considered by the Courts below and that, to this extent, they have misdirected themselves in disposing of the case before them. They have, however, arrived at conclusions which are e justified on consideration which we have set out above. In the aforesaid circumstances, petitioners are entitled to ask us not to award costs against them. The result, therefore, is, that for reasons stated above, we discharge the Rule without any order as to costs. A. SUBHAN CHOWDHURY, J.‑I agree. Rule discharged.