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14. Mr. Nanavaty has referred me to several provisions of Baroda Nivarsi Niyam officially translated by the Baroda State as Rules relating to Unclaimed Property. The expression "Unclaimed Property" has been defined by Rule 3 (4) in the following terms.

"The term "Unclaimed Property" shall mean the Property of an intestate person not leaving or not known to have left a lawful heir and shall include property of which the owner
(a) has absconded, or (aa) is not known."

Rule 5 to which reference has been made provides as follows:

"The Patel of a village or if there is a Police station in such village, the Naib Fauzdar in charge of station
(k) shall make, subject to the provisions of sub-section (2), a Panchakyas about
(a) any unclaimed property or -any portion thereof found in such village, or (aa) any property which prima facie appears to be unclaimed and (kh) shall cause proper watch to be kept on such property without removing the same, and
(g) shall report to the Magistrate having jurisdiction and also send him the Panchakyas, if any.
(2) Nothing herein contained shall be deemed to preclude a watch only being kept on property without a Panchkyas being made under clause (k) of sub-section (1), if it is possible to do so without entering the house of a deceased person." This is the Rule upon which reliance has been -placed by both the sides. Whereas Mr. Nanavaty has tried to argue that the watch contemplated by Rule 5 must be read in light of other Rules, Mr. Mehta has contended before me that it leads to an inevitable inference that at the most the State takes into its custody the unclaimed properties. Rule 6 provides for procedure to be adopted by the Magistrate. It Provides that "when a Magistrate is informed" by a report " or otherwise or has reason to believe that any unclaimed property is existing in any place, he shall proceed to that place and may order the Patel or the Naib Fauzdar to prepare a list thereof", if the property is movable, and to hand over the property to himself, or may order the property to be "properly watched," if the property is immovable. It also lays down the procedure when-property is found in possession of a stranger. If the property which is alleged to be unclaimed is in possession of a stranger and if the Magistrate is satisfied that he is not in lawful possession thereof, he shall allow the property to remain in the possession of such person until final disposal, provided that proper security is furnished in respect thereof. If the person in possession does not furnish the required security, the Magistrate shall take 'possession' of the property . Whereas sub-rule (1) of Rule 6 contemplates a proper watch, sub-rule (2) of Rule 6 contemplates the taking of possession. Rule 7 provides that the Magistrate, after fixing the approximate value of the unclaimed property under the foregoing Rule shall send a report-in writing to the competent Judge for an inquiry under Rule 8. Sub-rule (2) of Rule 7 specifies the particulars which are to be mentioned in such a report. Rule 8 lays down -procedure for the inquiry in respect of unclaimed property. Sub-rule (1) requires the issue of a notification requiring the heir or heirs to appear within two months, if the property is worth not more than 10 rupees or within six months if the property is worth more than ten rupees. Sub-rule (2) prescribes the contents of such a notification. Amongst others, it requires the notification to state that the Government has taken over the 'possession' of the property. Sub-rule (3) requires particulars of individual items of unclaimed property to be mentioned in the notification in certain cases. Subrule (4) lays down the manner of publishing the notification. Sub-rule (5) provides that if a person claiming to be the heir of the deceased appears, the Judge shall make a summary inquiry into the claim and if he is satisfied that the claimant is the heir of the deceased, he shall order the property to be handed over to him after deducting all the expenses incurred on account of such property. Subrule (5) of Rule 8 is a provision upon which Mr. Mehta has relied in order to bring home his argument that the State is bound to deliver the possession of the property to the plaintiff if the plaintiff's title to it is proved. According to his contention, therefore, it is not necessary for the plaintiff to make a prayer for possession. Sub-rule (6) requires the production of a succession certificate in certain cases. Sub-rule (7) lays down procedure when no heir appears. Sub-rule (8) lays down that the Magistrate shall carry out the orders relating to handing over the property made under sub-rules (5), (6) or (7). Sub-rule (9) lays down procedure when an appeal is proposed to be filed. Sub-rule (1) provides for procedure when property cannot be handed over under sub-rule (7). Rule 9 lays down procedure when there is no heir is not relevant for the purpose of the present case. Rule 10 empowers the Magistrate to sell the property by auction under the circumstances mentioned therein. Rule 11 provides for appointment of manager of property which cannot be taken in 'possession'. It lays down that when it appears to the Judge from an application in writing made by a party or person interested that a person has died at a place within his jurisdiction and that there is no other person legally entitled to take possession of his property or that a person so entitled is not willing to take possession thereof, or that the heir or heirs of such deceased person is or are not fit to manage the property owing to minority, insanity or other disability and that no other near relative of the deceased is willing to receive the property or that owing to a dispute between two or more claimants as to succession none of them has taken possession of the property, or that the apparent legal heirs of the deceased have not taken possession of the Property owing to a dispute between them and that the Judge is empowered under the said Rules to make an inquiry concerning such property, he shall appoint a manager, with full or limited power over the property and shall order the costs of such appointment to be borne by the property and shall give a certificate to that effect to the person so appointed. Sub-rule (2) provides for delivery of property to the rightful heir under the circumstances mentioned therein after the manager has "taken possession" of the property. Rule 20 provides for appeal and period of limitation. Mr. Mehta has relied upon sub-rule (4) of Rule 20 which provides that nothing contained in Rule 20 shall be deemed to preclude any person from seeking relief in a Civil Court against any order or decision made under these Rules. He has contended on the strength of sub-rule (4) of Rule 20 that what the plaintiff is bound to pray for is the relief against the order or decision made under the said Rules. Relying upon this provision in Rule 20 he has contended that the plaintiff is not bound to Pray for anything more. It is for the plaintiff to decide what reliefs he should pray for. If he prays for the reliefs of setting aside the order made in a summary inquiry under the aforesaid Rules, the Court deals with that relief. But if he prays for anything further the Court has got to take into account whether that further prayer is maintainable or not. On reading these Rules I have no doubt in, my mind that the State takes over the possession of the unclaimed property where there is no lawful heir and returns it to a lawful heir if one is found or if someone establishes his claim to be the lawful heir of that property.

15. The cumulative effect which the Rules quoted by me above produce is that the State enters into possession of properties which are alleged to be unclaimed properties. If ' the State is in possession, it is necessary for the plaintiff within the meaning of Section 42 of the Specific Relief Act, 1877 to pray for a consequential relief of possession. He cannot maintain a suit for a declaration simpliciter. Firstly, the facts and circumstances of the case show that it is necessary for the plaintiff to pray for possession. Secondly,, they show that the plaintiff is able to pray for possession and thirdly, they show that the plaintiff has omitted to do so. In my opinion the control of the State over the properties mentioned in Schedule 'B' does not amount to custody. It amounts to possession. Assuming, however, that I am in error in recording this conclusion on reading the aforesaid Rules and if it is held that the properties mentioned in Schedule 'B' are in mere custody of the State, it is even then necessary for the plaintiff to seek their possession. The expression 'custody' has not been used in Baroda Nivarsi Niyam. Mr. Mehta has tried to infer from several provisions that the State has taken into its custody the suit properties and has tried to distinguish custody means such a relation towards a thing or things as would constitute possession if the person having custody had it or them on his own account. It implies actual physical control of the Property.