A suit brought after an attachment under Sec. 146, Criminal Procedure Code, has to be for declaration of one's title, and on proof of that title alone, one can be put in possession of the property after its release from attachment.

MAHAPATRA, J.

1. The appellants brought a suit on the 7th of January, 1950, for a declaration that they had perpetual mukarrari interest in the property in suit described in Schedule 1 of the plaint, and that they were entitled to get the property which was in the custody of the Sub-divisional Officer, Barh, after the same was attached under Sec. 146 of the Code of Criminal Procedure. The property involved in the suit was 16.35 acres in village Berna Gossain Nath, Pargana Pillich, thana Buktiarpur in the district of Patna.

2. The plaintiffs are the members of a Hindu joint family governed by the Mitakshara School of which the plaintiff No. 1 is the karta. One Baldeogir was impleaded originally as defendant No. 6, but he was expunged by an order of the Court at the instance of the plaintiffs on the 10th of January, 1951; so also another defendant No. 8, Mt. Deolagan Devi, was expunged. No relief was sought particularly against defendant No. 7. We are thus left with defendants 1 to 5 who were parties to a proceeding under S. 145, Criminal Procedure Code, as against the plaintiff. The plaintiffs case was that Baldeogir was the absolute owner of the rent free lands in khata Nos. 135 to 138 of village Berna Gossain Math. He was a devotee of God Shiva but the properties were his own and he treated them as such like his predecessors-in-interest. The deity installed in the Math premises was a private one. Neither the defendants nor any member of the village public had any concern with the suit rent free lands or the management and worship of the deify. By a registered deed of settlement dated the 3rd June, 1947, the suit lands were settled with the plaintiffs for a consideration of Rs. 23,000/-at an annual rental of Rs. 16/- besides cess, and the plaintiffs came in possession of the same. They replaced the tiled roof in a portion of the Math premises by a pucca roof and were performing the necessary puja of the deity. A part of the consideration (Rs. 15,850/-) for the settlement was paid in cash before the sub-registrar and the balance was paid to the different usufructuary mortgagees from Baldeogir for redemption of those mortgages. The defendants wanted to take the settlement but having failed in their efforts, began to create dispute with the plaintiffs with a view to forcing them to leave the possession. At their instance, a proceeding under Sec. 144, Criminal Procedure Code, was initiated against the plaintiffs, and the orders were made absolute against the defendants on the 10th February 1947, the plaintiffs possession being recognised. The defendants again made a similar attempt by filing a complaint against the plaintiffs through one Parmeshwar Gir, but that failed by the orders passed on the 30th of December, 1947. They, however, initiated another proceeding under Sec. 144, Criminal Procedure Code, which was later converted to one under Sec. 145, Criminal Procedure Code, and the suit properties came under attachment. The trying Magistrate attached the properties under S. 146, Criminal Procedure Code, by his orders passed on the 1st June, 1949. To get the properties released from that attachment, the present suit was filed. The plaintiffs denied that the defendants had any title or any right over the properties, or that they ever managed or possessed that.

3. Defendants 1 to 5 filed a joint written statement and pleaded, besides limitation and defect of parties, that the suit lands formed a. public endowment having been dedicated to Lord Shiva (Shri Shri Bichitra Nathji Maharaj) by the landlords of the village, and that Baldecgir, like his predecessors-in-interest was a mere shebait. Neither the property nor its income were ever treated as private property by any of the Goassains. The origin of the endowment was shrouded in antiquity, but the property from generation to generation was treated as the property of the deity. As Baldeogir began to misconduct himself and misappropriate the property about the year 1348 Fasli