A suit for declaration of title is not maintainable without a prayer for recovery of possession when the plaintiff is out of possession.

( 1 ) THIS Rule is directed against the judgment and order dated October 5, 1972 passed by the Additional District Judge. 12th Court, Alipore in Misc. Appeal No. 133 of 1972. By the said order the learned Additional District Judge set aside the order passed by the learned Subordinate Judge, 2nd Court, Alipore rejecting the application filed by the plaintiff-opposite party for appointment of a Receiver in respect of the suit property.

( 2 ) THE opposite party who is the son of the petitioner, filed a suit, namely. Title Suit No. 32 of 1971 for declaration of title to premises No. 54/1/1, Hazra Road. Calcutta, and for injunction, accounts and other reliefs. In the said suit the opposite party alleged that his grandfather, late Mahendra Nath Banerjee who was the owner of certain properties left a Will by which his two sous, namely. Hrisikesh and Kumud Ranjan, the defendant each got 1/3rd share of the properties in lifetime interest and the remaining 1/3rd share was bequeaihed to the testator's widow Nalinibala. The Will further provided that on the death of Nalinibala her 1/3rd share would go to Ajit and Adhir, the two sons of Bhadreswar, who was another son of the testator. There was another provision in the will that when the youngest of the testator's grandsons who were then in existence would attend the age of 30 years the grandsons of the testator would get the properties left by the deceased according to their respective father's share. The plaintiff opposite party alleged that at the time of execution of the Will Adhir was the youngest grandson of the testator and Adhir attended the ago of 30 years on February 13, 1960. It was further alleged that the plaintiff-opposite party was born subsequent to the date of the execution of the Will and in terms of the provisions contained in the Will the plaintiff had become absolute owner of the properties left by Mahendra and he claimed that the properties given to his father the defendant in lifetime interest had devolved upon him on Adhir attaining the age of 30 years. One of the properties left by Mahendra was premises No. 108/4, Ultadanga Main Road. That property fell to the share of the defendant Kumud Ranjan on the basis of a decree passed on compromise in Title Suit No. 85 of 1939 of the 2nd Court of the Additional Subordinate Judge, Alipore, which was instituted by Ajit and Adhir, the sons of Bhadreswar. The said property at Ultadanga Main Road was acquired by the Calcutta Improvement Trust and in terms of the Will the youngest grandson of the testator having attained the age of 30 years in the meantime the plaintiff-opposite party became the owner of the said property and accordingly the compensation money amounting to Rs. 1,19,281. 25 p. was deposited in the State Bank of India in the name of the plaintiff. The plaintiff-opposite party alleged that the suit property i. e. premises No. 5/1/1, Hazra Road was purchased in the benami of the defendant and the consideration money was paid primarily out of the compensation received from the Calcutta Improvement Trust. The plaintiff-opposite party alleged that the defendant was in possession of the entire second floor and the mezzanine floor of the disputed premises and the remaining portion of the said premises were Jet out to tenants. The plaintiff-opposite party further alleged that the defendant wrongfully and illegally and in breach of trust denied the plaintiff's right, title and interest in the said property and he, therefore, instituted the suit for the reliefs mentioned above.

( 3 ) THE defendant petitioner contested the application for appointment of a Receiver. It was alleged that the application for appointment of a Receiver was not maintainable and the plaintiff opposite party had no possession in the said premises and he never acquired any title thereto. It was claimed that the suit property was acquired by the defendant with his own funds and for his own benefit. It was alleged that on the strength