A suit seeking mere declaration is not maintainable when the State has taken possession of unclaimed property; possession must be requested as per S.42 of the Specific Relief Act.

1. The State of Gujarat has filed this appeal under the following circumstances.

2. There is a temple situate in Hanuman Pole in Wadi area of Baroda City. One Atrnaramdasji was the Mahant of that temple until he died on 4th October, 1947. He belonged to Ramanandi sect. He was a Nisangi (bachelor). According to the plaintiff, he has been the disciple or Shishya of the late Atmaramdasji who initiated him as a Shishya on 19th December, 1946. According to him, though he was initiated as a Shishya on 19th December, 1946 he was declared as a Shishya by Atmaramdasji on 23rd April, 1947, in the presence of Sadhus, Mahants and other disciples of the sect. He also underwent all ceremonies which were required for becoming a Shishya. He had performed the obsequial ceremonies of Atmaramdasji upon the latter's death and had lit the funeral pyre of the deceased. He, therefore, in his capacity as the Shishya of Atmaramdasji claims to be his lawful heir.

3. On 9th October, 1947 one Sevadas Keshavdas and Maganlal Jagannath made an application to the District Magistrate, Baroda stating that Atmaramdasji had expired without leaving any heir and that under the provisions of the Baroda Nivarsi Niyam which was then in force the State should take over all the properties of Atmaramdasji. At the instance of the District Magistrate, Baroda investigation was made by the Second Class Magistrate, Baroda. At the conclusion of the investigation he found that the plaintiff was a Shishya of Atmaramdasji and, therefore, his heir. He made his report to the District Magistrate at Baroda under whose orders he had made the inquiry. The District Magistrate set aside the conclusion recorded by the Second Class Magistrate. A Revision Application was filed against that order of the District Magistrate in the High Court of Baroda which refused to entertain it and directed the matter to be sent to the District Judge at Baroda for a summary inquiry under the Baroda Nivarsi Niyam . Thereafter the Baroda State merged with the then Bombay Province. The matter, therefore, went to the Civil Judge, Senior Division at Baroda who decided that the plaintiff was not a Shishya of Atmaramdasji and, therefore, not his heir. A Civil Revision Application was filed against that order in the High Court at Bombay. It allowed it because the Civil Judge, Senior Division had no jurisdiction to make inquiry under the Baroda Nivarsi Niyam . It sent the matter back to the District Judge at Baroda who again held a summary inquiry and recorded the conclusion that the plaintiff had failed to prove that he was the Shishya of Atmaramdasji. The Baroda Nivarsi Niyam provided that any person who was aggrieved by an order made under the said law could file a suit within one year. The plaintiff, therefore, filed the present suit and prayed for (1) a declaration that the order of the District Judge, Baroda in the summary inquiry is illegal and void, (2) a declaration that he is the only Shishya or Chela of Atmaramdasji and as such his heir entitled to his properties, (3) a permanent injunction restraining the defendant - State from interfering with his possession of the properties mentioned in Schedule 'A' to the plaint and (4) a declaration that he has become the owner of the properties mentioned in Schedule 'B' to the plaint. The State had earlier taken over the properties mentioned in Schedule 'B' to the plaint. He did not seek any decree for possession against the State in respect of the said properties.

4. In defence the defendant - State contended that the properties were taken over by the State after they were declared to be Nivarsi (heirless) under the Baroda Nivarsi Niyam and that they had vested in the State. The next contention which it raised was that since the State had taken over possession of the properties mentioned in Schedule 'B