The plaintiff brought a suit for a declaration that he was the Mutawali of IMAMBARA at Zadibal and for an injunction restraining the defendants from interfering with the exercise by the plaintiff of the duties as a Mutawali. The defendant resisted the claim on the ground amongst others that the suit was incompetent as the plaintiff being able to seek further relief had failed to do so. The trial court of City Judge Srinagar upheld the objection and dismissed the suit. On appeal, however, the learned District Judge of Srinagar held that the plaintiff, along with all other Muslims, must be considered to be in constructive possession of the IMAMBARA. He accordingly vacated the order of the trial court and remanded the case with the direction that, after giving the parties further opportunity to adduce evidence, the case be decided on merits. The defendant has now come up in appeal to this court.

It has been urged by the learned counsel for the appellant that the lower appellate court was not right in holding that the plaintiff was in possession of the Imambara at the time of the institution of the suit. He submits that in his statement dated the 28th of Sawan 1993 the plaintiff had clearly admitted that the defendant had forcibly taken possession of the property before the institution of the suit and that the same was no longer in his possession. His contention is that in view of this clear admission on the part of the plaintiff the trial court was not right in holding that the plaintiff was in possession and that a suit without a prayer for possession was not main-tamable. We see a good deal of force in this contention. In his statement referred to above the plaintiff stated as follows: -

"Is wakat Imambara zadibal par mukhalif party yaini Mudala ne jabran takriban 2/3 sal se Kabza kar liya-Dava haza dayir karne se peshtar hi kabza kar liya hai. Us wakat se Imarat muzhir ka kabza nihi hai, Muje maloom nihi ki ab wahan kon intizam karta hai."

The plaintiff gave this statement as a witness for the defendant. In view of this admission by the plaintiff himself in unequivocal terms the finding of the lower appellate court to the effect that the plaintiff was in constructive possession of the property cannot be upheld. It has been urged by the learned counsel for the respondent that the Imambara cannot be treated as property capable of possession. We are, however, not inclined to agree with this contention. Imambara as a building is property in every sense of the word and as such is capable of possession. Having regard to the admission of the plaintiff that he was not in possession of the property which was capable of possession the suit in the form in which it was instituted was clearly not maintainable. The plaintiff being out of possession cannot be granted the injunction prayed for by him as he was bound to add a prayer for the possession of the property. As the plaintiff has omitted to do so the suit as remarked above is not maintainable and has rightly been dismissed. We are supported in this view by the rulings of the Lahore, Madras, Patna and Calcutta High Courts reported as A. I. R. 1938 Lahore 369, 135 Indian Cases 332, A.I. R. 1927 Patna 475 and 15 Indian Cases 552. The order of the learned District Judge cannot under the circumstances be upheld. We accordingly accept this appeal, set aside the order of the District Judge and restore that of the trial court. Having regard, however, to the circumstances of the case we would leave the parties to bear their own costs throughout.

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