Hiremath, J.
1. The plaintiffs sued defendants 1 to 3 for permanent injunction restraining them from interfering with their possession of three items of properties namely Survey No. 40/1, Survey No. 40/2 and Survey No. 40/3 of Kattinahakkal village of Ankola taluk of Uttar Kannada District. While plaintiff-1 claims to be in possession of Survey Nos. 40/1 and 40/3 by virtue of a grant, plaintiff-2 claims to be in possession of Survey No. 40/2, though unauthorisedly that being the Government waste land. However, defendant-1, the present first respondent, filed O.S.83 of 1967 for permanent injunction against them in respect of the same properties and obtained temporary injunction against them on 20-5-1967. This was challenged in a miscellaneous appeal and ultimately the miscellaneous appeal came to be dismissed.
2. Thereafter defendant-1 initiated proceedings under Section 145 of the Code of Criminal Procedure by applying to the Sub-Divisional Magistrate having jurisdiction alleging interference of the plaintiffs and asserting that he was in actual possession of the lands. Thereafter the Sub-Divisional Magistrate attached the properties and passed a preliminary Order appointing a receiver under Section 146(1) of the Code of Criminal Procedure on 8-12-1970. The final order came to be passed on 31-5-71 confirming the preliminary order. In the mean-while, in Criminal Revision Petition 356 of 1971, the plaintiffs challenged the preliminary order passed by the Sub-Divisional Magistrate and the entire order came to be quashed by this Court on 29-11-1971 holding that already Civil Suit had been filed in respect of the same properties on 31-5-1971. This suit for injunction came to be filed by the plaintiffs on 29-3-1971.
3. After the final order was passed, possession was delivered to defendant-1 by the Receiver on 3-6-1971. These are the facts borne out by the records.
4. The trial Court decreed the suit. But the first Appellate Court, having found that the plaintiffs were not in possession of the suit lands on the date of the suit, allowed the appeal and dismissed the suit.
5. In the second appeal, the point set down for determination is whether the lower Appellate Court was justified in not considering the possession of the receiver as possession of plaintiff as he ultimately succeeded in Section 145 Cr.P.C. proceedings.
6. It is urged on behalf of the appellants that when this Court quashed the entire proceedings, it must be said that the possession of the receiver is the possession of the plaintiffs and therefore, the receiver wrongly and illegally handed over possession to defendant-1 and hence the plaintiffs are entitled to injunction. On the other hand, the respondents' Counsel has maintained that throughout from 1967 it was defendant-1, who was in actual possession of the suit properties and at no time he was dispossessed and therefore, the plaintiffs cannot succeed in this suit for bare injunction.
7. Reliance has been placed on behalf of the respondents on a decision of the Allahabad High Court in the case of JAGADISH v. RAJENDRA, : AIR1975All395 , wherein it was held that where the plaintiff filed a suit for mere declaration of title to the property, the property then being in custodia legis having been attached under Section 145 of the Code of Criminal Procedure but subsequently the possession was delivered by the Criminal Court to the defendant, the suit was not bad for not asking for the further relief of possession, as such relief was not available to him on the date of the plaint. Where the plaintiff is not in possession on the date of the plaint, the property being in custodia legis having been attached under Section 145 of the Criminal Procedure Code, and pending suit the possession was delivered to the defendant by the Criminal Court, the plaintiff cannot be granted an injunction restraining the defendant from interfering with his possession. Before an injunction can be granted it has to be shown that the plaintiff was in possession.
8. In another decision in the case of JEMMA v. RAGHU, AIR 1977 Orissa 13, it was held that a plaintiff not in possession of suit property is not entitled to the relief of injunction without claiming recovery of possession. Similarly later on in another case of MAHADEBA DEBATA v. DEENA-BANDHU DEBATA AND ORS., : AIR1977Ori152 a similar view was taken namely that the person claiming permanent injunction must be in actual possession of the property and symbolic delivery of possession also amounts to such possession.
9. The main argument on behalf of the appellants is that the possession of the receiver must be construed as that of the plaintiffs. In the instant case, it is necessary to note that when there was dispute with regard to the immovable property and when the Sub-Divisional Magistrate could not determine exactly who was in possession of the property, atleast prima facie, he exercised his discretion to attach the property as provided under Section 146(1) of the Code of Criminal Procedure and appointed the receiver. Ultimately the proceedings were quashed by this Court, on the footing that when the civil suit was pending, it cannot be said that it is the possession of either of the party. Though this suit was filed on 29-3-1971 and possession of the property was delivered by the Receiver to the first defendant on 3-6-1971, it cannot be said that the plaintiffs were in actual possession of the suit properties on the date of suit. In this view of the matter, it is apparently clear that the plaintiffs were never in actual possession of the property and that the first Appellate Court was right in holding that injunction cannot be granted in favour of the plaintiffs - appellants, when they are not in actual possession of the properties. In that view of the matter, there are no reasons to interfere with the decree of the first Appellate Court and the appeal is liable to be dismissed.
10. The appeal is dismissed. The parties to bear their respective costs in this appeal.