JUDGMENT : SANJAY KUMAR DWIVEDI, J. 1. Heard Mr. R.N. Sahay, the learned Senior counsel assisted by Mr. Yashvardhan and Ms. Rishika Kaushik, the learned vice counsels appearing on behalf of the appellants and Mr. Sudhir Kumar Sharma, the learned counsel appearing on behalf of the respondent no. 7. 2. On the petition of the appellant vide order dated 24.11.1999, respondent no. 6 was expunged and the appellants were exempted to substitute her legal heirs/successors. By order dated 31.08.2022, the respondent no. 1 was directed to be expunged. The notices upon the respondent nos. 2 and 5 were validly served upon them but they have chosen not to appear in the second appeal. The respondent nos. 3 and 4 have appeared through Mr. V.K. Prasad, the learned counsel appearing for them, however, on repeated call, nobody has appeared on behalf of the respondent nos. 3 and 4 and that is why, this second appeal has been heard. 3. This second appeal has been filed being aggrieved and dissatisfied with the judgment and decree dated 17.06.1998 and 27.06.1998, respectively passed by learned 5th Additional District Judge, Giridih in Title Appeal No. 62 of 1984 whereby he has been pleased to reverse the judgment and decree dated 17.07.1984 and 28.07.1984 passed by the learned 2nd Additional Munsif, Giridih in Title Suit No. 18 of 1978/14 of 1984. 4. The appellant/plaintiff instituted the Title Suit No. 18 of 1978/14 of 1984 for declaration of his title to the land of plot nos. 3727 and 3726 of village Burki Suriya described in schedule to the plaint. 5. By the judgment dated 17.07.1984, the learned 2nd Additional Munsif, Giridih has been pleased to decree the suit in favour of the appellant/plaintiff. Aggrieved with that, the respondent/defendants filed the Title Appeal No. 62 of 1984 which was decided by the judgment dated 17.06.1998 and by the said judgment, the appeal was allowed and the judgment of the learned trial court was reversed. Aggrieved with that, the present second appeal has been filed by the appellants/plaintiffs. 6. The case of the plaintiffs is that the land measuring 9 decimals together with a house over a portion of it fully described in the schedule of the plaint belonged to Hulak Ram and Others. Aggrieved with that, the present second appeal has been filed by the appellants/plaintiffs. 6. The case of the plaintiffs is that the land measuring 9 decimals together with a house over a portion of it fully described in the schedule of the plaint belonged to Hulak Ram and Others. It was sold by court in auction sale in execution Case No. 218 of 1940 of the court of Munsif, Hazaribagh in which Hulak Ram and others were the judgment debtor. It was auction purchased by the decree holder Mangar Ram of Village Logbedih for a sum of Rs. 1200/- on 8.2.1941 and the said auction sale was duly confirmed by the court on 18.3.1941 and a sale certificate dated 19.04.1941 was issued to the purchaser Mangar Ram. Then he obtained delivery of possession over the suit property through the process of the court and continued to remain in possession over the said land as an absolute owner thereof. It is further said that by virtue of a registered sale deed dated 2.2.1945 the plaintiff purchased the said land and the house for Rs.1500/- got possession over the same and has been paying the rent therefor. The plaintiff further claimed that the suit land appertaining to plot nos. 3727 and 3726 in part which is clear from the boundaries mentioned in the sale certificate, but due to some in advertence plot no. 3726 is not specifically mentioned in the sale certificate. The plaintiff further averred that the old house on the suit land was in dilapidated condition and in full down and only a portion of it is standing thereon. The remaining land was under cultivation by the plaintiff so long as the plaintiff was residing at Suriya. Subsequently he came to Giridih and has been residing here with his family for the last 10 years with the result that the said land has remained fallow thereafter. 7. The case of the defendants is that the defendant nos.2 to 5 are the descendants of one Jhari Ram to whom the suit property originally belonged Hulak Ram, defendant no. 5 and Digree Ram father of defendants 2 to 4 were the judgment debtors in the aforesaid execution case having full knowledge of the fact that the right, title and interest of the heirs and descendants of Jhari Ram had been sold to Mangar Ram. 5 and Digree Ram father of defendants 2 to 4 were the judgment debtors in the aforesaid execution case having full knowledge of the fact that the right, title and interest of the heirs and descendants of Jhari Ram had been sold to Mangar Ram. Nevertheless, defendants 2 to 5 falsely and fraudulently got a sale deed dated 8.5.1974 executed by Lato Ram son of Jhari Ram in favour of Smt. Kunti Devi in respect of 2¼ decimal of plot no. 3727 and ¾ decimals of plot no. 3726. She is a lady belonging to the family of defendants 2 to 5. Being armed the said void and illegal sale deeds and taking advantage of the plaintiff’s absence from village Barki Suriya, defendants 3 to 5 broke and dismantled a portion of the old wall of the fallen house and started digging foundation and construction of new pucca wall and also a shed on wooden poles over the suit land mentioned in the schedule of the plaint. Sometime in March1977, when the plaintiff learnt about it he asked defendants assumed defiant attitude. Then the plaintiff informed the police resulting in inception of a proceeding under section 144 Cr.P.C. which was subsequently converted into one under section 145 Cr.P.C. The land in dispute was attached under section 146 Cr.P.C. which was subsequently vacate with respect to plot no. 3726. The plaintiff preferred a revision against the said over releasing plot no. 3726 from attachment which was pending, till filing of the suit. Thus, the plaintiff claimed that he has got title to and possession over the suit land but since the defendants laid claim of title and possession, the plaintiff came up in the present suit. Defendants 1 to 4 filed their joint written statements and contested the suit on various grounds. They challenged the maintainability of the suit and claimed that the suit is barred by limitation and adverse possession as also by section 34 of the Specific Relief Act. The defendants also challenged the valuation and the court fee paid by the plaintiff. The plaintiff did not admit the auction purchase by Manger Ram and put him to the strict proof of the same. The defendants also challenged the valuation and the court fee paid by the plaintiff. The plaintiff did not admit the auction purchase by Manger Ram and put him to the strict proof of the same. But at the same time the defendant averred that Manger Ram had no transferable interest or title to the suit property and hence, the alleged sale deed dated 2.2.45 executed by him in favour of the plaintiff is sham, fraudulent, illegal, void and without consideration. The plaintiff did not acquire any right or title under the said deed and never paid the rent. The defendant further said that only a portion of 3726 is adjacent east of plot no. 3727 but denied that the area of 9 decimals alleged to have been purchased by the plaintiff included plot no. 3726 also and the eastern boundary mentioned in the plaintiff’s sale deed is wrong. It should have been plot no. 3726. The defendant further said that the plaintiff never cultivated the suit land and he has been living at Giridih for last 30 years. The defendants further averred that plot no. 3727 belonged to Jhari Ram, ancestor of defendants 2 to 5. The total area of plot no. 3727 is 34 decimals out of which 3 decimals was acquired by Parsadi Ram, Lato Ram and Hulak Ram, all sons of Jhari Ram by settlement about 37 years back and the said land remained in their possession during their life time. The share of Hulak Ram in plot no. 3726 of 3737 has been purchased by Kunti Devi, defendant no. 1, by virtue of registered sale deed dated 26.4.1977 and she is in possession of the same including the house standing thereon. Similarly Lato Ram also sold his own share in the said plot no. 3726 and 3727 to her on 8.5.1974. Defendants 2 to 5 are the descendants of Jhari Ram out of whom defendant no. 5 died issueless and thus defendants 1 to 4 claimed to be in possession of the whole plot no. 3727 and over 3 decimals of plot no. 3726. It is said that a portion of the old house on 3726 has fallen down, but the remaining portion is still standing and the defendants have also constructed a new house on the said plot and they have been residing therein. 3727 and over 3 decimals of plot no. 3726. It is said that a portion of the old house on 3726 has fallen down, but the remaining portion is still standing and the defendants have also constructed a new house on the said plot and they have been residing therein. The defendants admitted the proceeding under section 144/145 Cr.P.C. but alleged that it was only with respect to the land of plot no. 3727. At the same time it is said that the order passed by the Sub-Divisional Magistrate vacating plot no. 3726 was correct and justified and the Criminal Revision filed by the plaintiff against the said order in the court of the Sessions Judge, Giridih has also been dismissed. 8. This second appeal was admitted by order dated 11.02.1999 on the following substantial question of law: (1) Whether the findings of the learned lower appellate court that the suit is barred by section 34 of the Specific Reliefs Act is in accordance with law and upon correct appraisal of the materials on record? (2) Whether the finding that the defendant has acquired title by adverse possession suffers from legal infirmity and has been arrived at without considering the essential ingredients to constitute title by adverse possession? (3) Any other substantial question of law that may be urged at the time of hearing. 9. Mr. R.N. Sahay, the learned Senior counsel appearing on behalf of the appellants submits that the learned appellate court has failed to consider and erred to hold that Mangar Ram, the decree holder purchased the suit property in auction sale on 08.02.1941 and the said auction sale was duly confirmed by the court on 18.03.1941 and the Sale Certificate was issued by the learned court on 19.04.1941 to the purchaser Mangar Ram. He further submits that the learned appellate court has further erred to hold that the defendant/respondents being agents and successor of Hulak Ram lost their every right, title and interest upon the auction sale through the court proved Exhibit-4, Sale Certificate issued by the court on 18.03.1941, was failed to understand Exhibit-4. He further submits that the learned appellate court has further erred to hold that the defendant/respondents being agents and successor of Hulak Ram lost their every right, title and interest upon the auction sale through the court proved Exhibit-4, Sale Certificate issued by the court on 18.03.1941, was failed to understand Exhibit-4. He further submits that the learned appellate court erred in reversing the judgment of the learned trial court whereby the learned trial court held that since the suit property was not attached under section 144 Cr.P.C. on the day of filing of the suit and that is why the custodia legis possession for the same was not in the hands of respondents/defendants herein and hence no relief can be provided for recovery of possession from the defendants and hence the suit was not barred under section 34 of the Specific Reliefs Act. He further submits that so far points on adverse possession finding is concerned, that is not on the basis of the record. One of the witnesses has stated about the possession of the defendants since last 7-8 years, whereas it has been stated that by way of sale deed of the year 1945 the defendants were in possession. He further submits that in view of sections 61, 64 and 65 of the Indian Evidence Act read with section 91 of the said Act, the documents produced on record has not been correctly appreciated by the learned appellate court and to buttress his argument, he relied in the case of Deo Kuer and Another vs. Sheo Prasad Singh and Others, (1965) 3 SCR 655 : AIR 1966 SC 359 and referred to paragraph no. 5 of the said judgment, which is quoted below: “5. The authorities clearly show that where the defendant is not in possession and not in a position to deliver possession to the plaintiff it is not necessary for the plaintiff in a suit for a declaration of title to property to claim possession [See Sunder Singh-Mallah Singh Sanatan Dharam High School, Trust vs. Managing Committee, Sunder Singh-Mallah Singh Rajput High School, (1957) LR 65 IA 106]. Now it is obvious that in the present case, the respondents were not in possession after the attachment and were not in a position to deliver possession to the appellants. Now it is obvious that in the present case, the respondents were not in possession after the attachment and were not in a position to deliver possession to the appellants. The Magistrate was in possession, for whomsoever, it does not matter, and he was not of course a party to the suit. It is pertinent to observe that in Nawab Humayun Begam vs. Nawab Shah Mohammad Khan, AIR 1943 PC 94 , it has been held that the further relief contemplated by the proviso to Section 42 of the Specific Relief Act is relief against the defendant only. We may add that in K. Sundaresa Iyer vs. Sarvajana Sowkiabil Virdhi Nidhi Ltd. (1939) ILR Mad. 986, it was held that it was not necessary to ask for possession when property was in custodia legis. There is no doubt that property under attachment under Section 145 of the Code is in custodia legis. These cases clearly establish that it was not necessary for the appellants to have asked for possession.” 10. Mr. Sahay, the learned counsel appearing on behalf of the appellants submits that the law points framed by this Court may kindly be answered in favour of the appellants. 11. On the other hand, Mr. Sudhir Kumar Sharma, the learned counsel appearing on behalf of the respondent no. 7 submits that so far the law point no. 1 is concerned, law is well settled that when the alternative prayer is not made in the plaint and merely title has been prayed, it is barred under section 34 of the Specific Relief Act and to buttress his argument, he relied in the case of Union of India vs. Ibrahim Uddin and Another, (2012) 8 SCC 148 and relied on paragraph nos. 55, 56 and 57 of the said judgment which are quoted herein-below: “55. The section provides that courts have discretion as to declaration of status or right, however, it carves out an exception that a court shall not make any such declaration of status or right where the complainant, being able to seek further relief than a mere declaration of title, omits to do so. 56. The section provides that courts have discretion as to declaration of status or right, however, it carves out an exception that a court shall not make any such declaration of status or right where the complainant, being able to seek further relief than a mere declaration of title, omits to do so. 56. In Ram Saran vs. Ganga Devi, (1973) 2 SCC 60 : AIR 1972 SC 2685 , this Court had categorically held that the suit seeking for declaration of title of ownership but where possession is not sought, is hit by the proviso of Section 34 of the Specific Relief Act, 1963 (hereinafter called “the Specific Relief Act”) and thus, not maintainable. In Vinay Krishna vs. Keshav Chandra, 1993 Supp. (3) SCC 129 : AIR 1993 SC 957 this Court dealt with a similar issue where the plaintiff was not in exclusive possession of property and had filed a suit seeking declaration of title of ownership. Similar view has been reiterated observing that the suit was not maintainable, if barred by the proviso to Section 34 of the Specific Relief Act. [See also Gian Kaur vs. Raghubir Singh, (2011) 4 SCC 567 : (2011) 2 SCC (Civ) 366]. 57. In view of the above, the law becomes crystal clear that it is not permissible to claim the relief of declaration without seeking consequential relief.” 12. He further submits that the learned appellate court has rightly appreciated the documents and so far possession is concerned, the learned trial court has also held that the plaintiff has not been able to prove the possession which has been affirmed by the learned appellate court and in that view of the matter the learned appellate court has rightly considered the period of limitation and given the finding on possession in favour of the defendants on the point of adverse possession. He also draws the attention of the Court to the paragraph nos.25 to 32 of the judgment of the learned appellate court and submits that in these paragraphs the learned appellate court has appreciated section 91 of the Indian Evidence Act as well as the secondary evidence and has concluded. There is no illegality on the finding of the learned appellate court and the law points may kindly be answered in favour of the respondent. 13. There is no illegality on the finding of the learned appellate court and the law points may kindly be answered in favour of the respondent. 13. In view of the submission of the learned counsels appearing on behalf of the parties, the Court has gone through the L.C.R. as well as the judgments of the learned trial court as well as the learned appellate court. The learned trial court has framed 8 issues for deciding the suit. The issue no. 3 is with regard to “Is the suit barred by the provisions of section 34 of the Specific Reliefs Act/?” and issued no. 5 is with regard to “Has the plaintiff got valid title to the suit land or not?” While deciding the issue no. 3, the learned trial court had considered that a portion of plot no. 3726 is covered by the said boundary and it has been detailed by plot number being 3726. The plaintiff asserted that the suit was attached under section 146 of the Cr.P.C. which was also admitted by the defendants in paragraph no. 11 of the written statement which was vacated with respect to plot no. 3726 by the order of Sub Divisional Magistrate which was challenged in Criminal Revision. The District and Sessions Judge had stayed the operation of the order vacating the attachment however later on the said criminal revision was dismissed and the order of the learned District Judge was brought as Exhibit-G and interpreting section 146 of the Cr.P.C. the learned trial court has held that the suit land would be deemed to be custodia legis on the day of suit and the Magistrate was in the position of a State holder holding the property for and on behalf of the person who establishes his title ultimately in the Civil Court. Ext.-8 and Ext.-10/A are the documents to suggest that the same position is continuing even today and on that ground, the learned trial court has held that the plaintiff was not bound to ask for possession as the defendant not being in possession on that day could not deliver possession and hence the suit is not hit by the provisions of section 34 of the Specific Reliefs Act. So far as the possession is concerned, the learned trial court considering the exhibits as well as the oral evidence has found that the plaintiff has not been able to prove the delivery of possession and however, relying on Exhibit-4, the sale certificate and the judgment of the proceeding under section 145 Cr.P.C. is decreed in favour of the appellant/plaintiff. The learned appellate court has examined the issues framed by the learned trial court as the suit was barred by the provisions of section 34 of the Specific Reliefs Act or not? and has elaborately discussed the provisions of section 144 Cr.P.C. as well as section 145 Cr.P.C. in light of section 34 of the Specific Reliefs Act and has considered that the plaintiff has made only prayer for declaration of title and not made prayer for recovery of possession. It is an admitted position that no prayer for recovery of possession was made therein in the suit. The learned appellate court has rightly appreciated the law with regard to possession and held that when the plaintiff is in possession over the suit land and in that view it is not necessary to ask for any further relief with regard to recovery of possession or confirmation of possession. But, in the case in hand, the possession of the plaintiff itself is doubtful and from the perusal of the documents of the plaintiff the learned trial court has also held that the plaintiff is not in possession. But, in the case in hand, the possession of the plaintiff itself is doubtful and from the perusal of the documents of the plaintiff the learned trial court has also held that the plaintiff is not in possession. The learned appellate court has further appreciated the provisions of section 144 and section 145 of the Cr.P.C. and found that the plaintiff was not in possession over the suit land as far as the custodia legis is concerned, no evidence has been brought on record to show that the suit land was in custodia Legis and that is why the learned trial court has also held that the plaintiff could not prove the delivery of possession to Mangar Ram that being the position that the delivery of possession is itself under the cloud the possession of the plaintiff becomes doubtful and suspicious and considering all these aspects of the mater, the learned trial court has been pleased to held that the provision of section 34 of the Specific Reliefs Act and findings of the court at this issue is not just and proper and the appellant/plaintiff held to have prayed for delivery of possession and as such finding of the learned trial court was reversed by the learned appellate court and the judgment relied by the learned counsel for the respondent no. 7 is also to that effect and in that view of the matter the Court finds that so far the reversing of the finding on section 34 of the Specific Reliefs Act is concerned, is not erroneous and accordingly, the law point no. 1 is answered in favour of the defendants. So far as the law point no. 2 is concerned, the Court finds that the learned appellate court has taken into consideration that PW-3 has stated about the possession of the plaintiff but in cross-examination he has stated that the plaintiff is living in Giridih Town for the last 35 years. 1 is answered in favour of the defendants. So far as the law point no. 2 is concerned, the Court finds that the learned appellate court has taken into consideration that PW-3 has stated about the possession of the plaintiff but in cross-examination he has stated that the plaintiff is living in Giridih Town for the last 35 years. He has also stated that the plaintiff sowing maize crop till the last year and on the aforesaid evidence of the PW-3 is against the pleading of the plaintiffs and the learned appellate court has not believed on that though PW-4 has also stated about the possession of the plaintiff on the suit but he has stated that the plaintiff is living in Giridih for the last 30 years and he has not been able to disclose how Mangar Ram acquired the aforesaid land. Moreover, the sale deed on which the claim has been made on behalf of the appellant/plaintiff was not brought on record. Only Exhibit-9 was brought on record to suggest that the said document is destroyed. The sections placed in detail by the learned counsels appearing for the appellants as well as the respondents so far as sections 61, 64, 65 and 91 of the Evidence Act are concerned, that is not in dispute and how the documents are being considered in admission and not, has been provided in those sections. The learned appellate court has considered the Exhibit-A is the sale deed, Exhibit-B series is the Choukidari receipts, Exhibit-C series is the rent receipts, Exhibit-D series is the Zamindari rent receipts, Exhibit-E is the warning notice in the name of Lato Ram, Exhibit-F is the Register-II showing that the suit land is still running in the name of Lato Ram, Exhibit G, H, I are the papers relating to the proceeding under section 145 Cr.P.C. and Exhibit-K is the Khatian. And all those documents were filed on behalf of the defendants and considering these documents, the learned appellate court has come to the conclusion that these documents suggest the possession of the defendants or their ancestors on the suit land particularly considering that Lato Ram’s name was still continuing in the mutation register. It is well settled that the claim of ownership by adverse possession can be made by way of defence when arrayed as defendant in proceedings against him. It is well settled that the claim of ownership by adverse possession can be made by way of defence when arrayed as defendant in proceedings against him. The learned appellate court has come to the finding that the defendant being in possession of the suit land for a long time for more than 12 years and discussing all these documents as well as the principle of adverse possession, the learned appellate court has come to the conclusion to that effect. The Court finds that there is no illegality in the finding of the learned appellate court. Accordingly, the law point no. 2 is answered in favour of the defendant. 14. The Court finds that there is no illegality and perversity in the order of the learned appellate court which has been rightly passed. 15. No case of interference is made out, and accordingly, Second Appeal No. 76 of 1998 (R) is dismissed. 16. Let the L.C.R. be sent back to the learned concerned court forthwith. 17. Any petition, if pending, also stands disposed of.