Friday, 9 June 2017

When suit filed by plaintiff for declaration without claiming relief of recovery of possession is tenable?

The plaintiff, who was not in possession, had
in  the  suit  claimed  only  declaratory  relief  along
with   mandatory   injunction.   Plaintiff   being   out   of
possession,   the   relief   of   recovery   of   possession
was   a   further   relief   which   ought   to   have   been
claimed   by   the   plaintiff.   The   suit   filed   by   the
plaintiff for a mere declaration without relief of
recovery of possession was clearly not maintainable
and the trial court has rightly dismissed the suit.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2342 OF 2017

EXECUTIVE OFFICER, ARULMIGU       
CHOKKANATHA SWAMY KOIL TRUST 
VIRUDHUNAGAR    
   V
CHANDRAN & ORS    
Citation:(2017)3 SCC702


2. The   defendant   has   filed   this   appeal   against
judgment of the Madurai Bench of Madras High Court
dated 22.01.2013, by which judgment the High Court
while   reversing   the   judgment   of   trial   court   and
First Appellate Court, has decreed the suit of the
plaintiff. 
3. The brief facts of the case are:
The Respondent No. 1, who shall be hereinafter
referred  to  as  plaintiff, filed  Original  Suit No.
33   of   2008   for   the   relief   of   declaration   and
mandatory   injunction.   Plaintiff's   case   in   the
plaint was that by Sale Deed dated 04.11.2007, he
has purchased an area of 2 acres and 73 cents being
part of   Survey No. 188. The entire Plot No. 188
(area 7 acres and 84 cents) is recorded in the name
of Defendant No. 1. Mandatory injunction was prayed
to be issued, directing the Defendant Nos. 4 and 5
to correct the revenue records by entering the name
of plaintiff in the suit property. The plaintiff's
case was that the suit property belonged to one R.
Padmanabhan  who  vide  Sale Deed  dated  28th August,
1992 on his behalf and on behalf of his minor sons
transferred   2   acres   72   cents   area   being   part   of
Survey   No.   188   in   favour   of   one   Sanjay   Ramasamy,
correspondent   of   Annai   Velankanni   Women   Teacher
Training School. Sanjay Ramasamy executed a General
Power   of   Attorney   in   favour   of   one   Bhaskaran   on
31.10.2007   and   it   was   Bhaskaran   who   executed   the
Sale   Deed   dated   04.11.2007   in   favour   of   thePage 3
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plaintiff.   Plaintiff, further stated that when he
went to Revenue Tehsildar for issuance of patta in
his favour, he came to know that it is in the name
of   first   Defendant.   Consequently,   the   suit   was
filed,   seeking   declaration   and   mandatory
injunction. 
4. A   written   statement   was   filed   by   the   first
Defendant, controverting the plaint allegation. It
was  pleaded  that  plaintiff  or his predecessors  in
interest were never the owner of the suit property.
The   Defendant   No.   1,   hereinafter   referred   to   as
Temple,   has   been   the   owner   in   possession   of   the
suit   property   whose   name   is   also   recorded   in   the
revenue   records.   It   was   pleaded   that   there   is   no
such   Survey   No.   as   188   in   the   whole   village.   The
only   available   Survey   Nos.   as   per   the   revenue
records   are   188/1,   188/2   and   188/3.   The   first
Defendant is entitled to the Survey No. 188/1 and
188/3,   which   are   in   possession   and   continuous
enjoyment of  Temple  from  the  time immemorial. The
property   register   of   the   Temple,   which   is
maintained by Special Tehsildar, Hindu Religious &
Charitable Endowment Department, records the Temple
as the owner of the property. Survey No. 188/2 is
in   the   possession   and   enjoyment   of   one   Janaki
Ammal,   who   being   not   a   party,   the   suit   is   not
maintainable   and   it   is   bad   for   mis­joinder   and
non­joinder   of   necessary   party.   The   defendants
numbers 2 to 4 have adopted the written statement
of defendant No.1.
5. Plaintiff, initially in the plaint, had claimed
for   the   reliefs   of   declaration   and   mandatory
injunction for an area 2 ares 73 cents as part of
Survey   No.   188.   Subsequently,   the   plaint   was   got
amended   by   the   plaintiff,   mentioning   the   suit
property   as   Survey   No.   188/3.   The   Plaintiff   in
support   of   his   case   filed   documentary   as   well   as
oral evidences of PW 1 to PW 5. The Defendant in
support of his case has also filed documentary as
well as oral evidences of DW 1, Senior AccountantPage 5
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in defendant's temple.
6. Trial court framed the following five issues:
"1. Whether   the   plaintiff   is
entitled   for   the   relief   of
declaration as prayed for?
2. Whether   the   plaintiff   is
entitled for mandatory injunction
as prayed for?”
3. Whether   the   suit   is   bad   for
non joinder of necessary party?
4. To any other relief?
Additional   issue   framed   on
17.08.2010:
1. Whether   this   suit   is
maintainable?”
7. Trial court, while answering the issue No. 1 to
4 and additional issue No. 1 held that Survey No.
188   further   has   been   sub­divided   into   Survey   No.
188/1,   188/2   and   188/3.   The   trial   court   further
held that there is no explanation submitted by the
plaintiff   that   how   he   has   got   amended   the   Survey
No.   188/3   in   the   original   suit.   It   held   that   the
description   of   the   suit   property   is   not   correct.Page 6
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It was also held that name of Padmanabhan was never
recorded   in   the   revenue   records.   Patta   was   never
transferred in the name of Sanjay Ramasamy, who had
no right to execute a General Power of Attorney in
favour of Bhaskaran. It was held that no document
has been produced to prove that Padmanabhan was in
possession   and   enjoyment   of   the   suit   property.
None   of   those   persons,   who   claimed   to   be   vendors
have  been examined.  Finding  was  returned  that the
Survey   No.   188   was   never   in   the   name   of
Padmanabhan.
8. It   was   held   that   suit   property   belonged   to
Temple,   which   is   in   possession   for   a   long   time
continuously.   The   trial   court   further   recorded   a
finding   that   plaintiff   had   failed   to   prove,   that
property   belonged   to   the   plaintiff   and   it   is   in
possession   hence   declaratory   reliefs   cannot   be
granted   to   the   plaintiff   and   thereby   suit   is   not
maintainable.
9. Answering   the   issue   No.   6,   trial   court   heldPage 7
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that   PW   1,   the   plaintiff   having   deposed   in   his
cross­examination, that survey No. 188/2 is in the
name of Janaki Ammal and she had sold the property
to   some   other   persons.   The   Janaki   Ammal   being
necessary party who has not been impleaded in the
suit, the suit is hit by non­joinder of a necessary
party.
10. The plaintiff aggrieved by the judgment of the
trial   court   filed   an   appeal.   The   Appellate   Court
vide   its   judgment   dated   31.10.2011   after
reappraising   the   entire   evidence   on   the   record
affirmed  the  findings recorded  by the trial  court
that   plaintiff   is   not   the   owner   of   the   suit
property. The Appellate Court further held that on
the  date  when plaintiff  purchased the property  in
2007,   Survey   No.   188   was   already   sub­divided   in
188/1,   188/2   and   188/3.   The   vendors   of   the
plaintiff did not have patta, chitta and adangal of
the suit property.
11. The Appellate Court held that Survey No. 188/1Page 8
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and   188/3   belong   to   Temple   and   survey   No.   188/2
belongs  to  Janaki Ammal  who  having  not  impleaded,
the suit is bad for mis­joinder and non­joinder of
necessary party. It was held that plaintiff was not
entitled for declaration and mandatory injunction.
12. Aggrieved   by   the   judgment   of   the   Appellate
Court, second appeal was filed by the plaintiff in
the   High   Court.   The   High   Court   vide   its   judgment
and   order   dated   22.01.2013,   allowed   the   second
appeal   by   setting   aside   the   decrees   of   the   trial
court   and   Appellate   Court   respectively.   The   High
Court   although,   set   aside   the   decree   of   courts
below   and   decreed   the   suit   but   directed   the
Defendant Nos. 4 and 5 to include the name of the
plaintiff   after   excluding   the   extent   of   property
which stands in the name of the first Defendant.
13. The High Court in its judgment did not disturb
the findings of the courts below that Temple is the
owner of 188/1 and 188/3 total area of 5 acres and
10   cents   of   land.   The   High   Court,   however,   heldPage 9
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that total area of 188 being 7 acres and 84 cents,
plaintiff was entitled for the remaining extent of
plot No. 188. Aggrieved by the judgment of the High
Court, this appeal has been filed by the Defendant
No. 1.
14. Learned counsel for the appellant in support of
appeal contends that the High Court in exercise of
jurisdiction   under   Section   100   CPC   has   interfered
with the concurrent findings of the facts, recorded
by   Courts   below   that   the   plaintiff   has   failed   to
proof his title and possession.
15. It   is   submitted   that   plaintiff   having   himself
admitted that Survey No. 188/2 stood in the name of
Janaki  Ammal  and  Janaki  Ammal without having  been
impleaded,   the   suit   of   plaintiff   was   correctly
dismissed   by   two   courts   below   on   the   grounds   of
mis­joinder   and   non­joinder   of   necessary   party.
Further,   the   description   of   the   property   in   the
plaint was incorrect and in­spite of the amendment
of   the   plaint,   no   correction   having   been   made   inPage 10
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the sale deed, plaintiff could not have been given
any right on Survey No. 188/3.
16. The   plaintiff   came   with   the   case   that
Padmanabhan   acquired   the   property   through
inheritance,   but   in   his   deposition,   it   is   stated
that   property   was   purchased   by   Padmanabhan.   The
property being never in the name of Padmanabhan in
the   records,   there   was   no   title   vested   in   the
plaintiff.   Defendant   proved   that   Survey   No.   188/1
and   188/3   having   been   in   the   name   of   Temple,   no
right could have been granted to the plaintiff.
17. Learned   counsel   for   the   respondent/plaintiff
submitted that High Court has rightly set aside the
judgment   and   decrees   of   the   two   courts   below.
Plaintiff had proved his title to the suit property
by   virtue   of   Sale   Deed   dated   29.07.1974   Annexure
R.1, Sale Deed dated 28.08.1992 and Sale Deed dated
04.11.2007.   It   is   contended   that   title   of
Padmanabhan   was   fully   proved   by   Sale   Deed   dated
29.07.1974, which was executed by one RajakambalamPage 11
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Sundara Rajan with regard to part of Survey No. 188
area 2.79 acres.
18. We   have   considered   the   submission   of   the
learned   counsel   for   the   parties   and   perused   the
record. The trial court after considering the both
oral   and   documentary   evidence   brought   on   record,
dismissed   the   suit   of   the   plaintiff   by   recording
following findings:
(i)   Plaintiff   has   failed   to   prove   by
producing   any   document   to   show   that
Padmanabhan   had   any   right   and
possession over the suit property.
(ii)Survey No. 188/1 and 188/3 are in
the   name   of   Defendant   No.   1,   the
Temple.
(iii) The  suit   property  belonged  to
Defendant No. 1 and it is in possession
for a long time continuously.
(iv)Plaintiff   in   his   suit   has   prayed
for the reliefs of declaration without
seeking the relief for  the possessionPage 12
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hence   the   suit   was   not   legally
maintainable.
(v) Plaintiff   cannot   be   granted   the
decree of the declaration and mandatory
injunction.
(vi)Survey No. 188/2 being in the name
of   Janaki   Ammal,   she   having   not   been
made party to the suit, suit was hit by
the   principle   of   non   joinder   of   the
necessary party.
19. The   Appellate   Court,   after   adverting   to
documentary   and   oral   evidence   has   confirmed   the
above   findings.   Appellate   Court   has   also   rejected
the   application   filed   by   the   plaintiff,   for
amending   the   plaint   for   incorporating   new
pleadings. Appellate Court held that by amendment,
plaintiff intends to fill up the gap and wanted to
change the entire nature of the case, which cannot
be permitted.
20. The   plaintiff   came   with   the   case   in   the   suit
that R. Padmanabhan was the owner of the property,Page 13
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who transferred it to in favour of Sanjay Ramasamy
on   whose   General   Power   of   Attorney   Bhaskaran   has
transferred  the  property  to  the  plaintiff by  Sale
Deed   dated   04.11.2007.   Trial   Court   has
categorically   recorded   a   finding   that   R.
Padmanabhan   was   never   a   recorded   owner   of   the
property and no patta was issued in his favour.
21. The   plaintiff   initially   in   the   plaint   has
prayed   for   decree   for   an   area   of   2.73   acres,   as
part of Survey No. 188. Sale Deed dated 04.11.2007
also mentions the suit property as part of Survey
No.   188.   Plaintiff   himself   has   examined   PW   4,   A.
Murugesan,   Surveyor   at   Virudhunagar   District,
Collectorate   Office.   PW   4   in   the   statement   has
stated   that   he   has   brought   the   village   revenue
records for the year 1983 with regard to Survey No.
188/1, 188/2 & 188/3. It is useful to extract the
statement   of   PW   4,   which   was   to   the   following
effect:
"I   received   summons   from   this
Hon'ble   court   to   depose   witness.
I   brought   Chinnamoopanpatti
Village's revenue records for the
year   1983   with   regard   to   S.   No.
188/1,   188/2   &   188/3.   I   am
producing 1914 settlement.”
22. From the above, it is clear that Sub Divisions
188/1,   188/2   &   188/3   were   in   existence   at   least
since before 1983. The deeds on which the reliance
has   been   placed   by   the   plaintiff   i.e.   Sale   Deed
dated 28.08.1992, by  which  Padmanabhan  is said  to
have  transferred  the  property in  favour  of  Sanjay
Ramasamy as well as General Power of Attorney dated
31.10.2007   and   Sale   Deed   dated   04.11.2007   in   the
name   of   plaintiff,   the   suit   property   is   not
described by sub division rather it is mentioned as
part of Plot No. 188. Although, plaintiff got his
plaint amended by amending part of Plot No. 188 as
Survey No. 188/3 but Sale Deed being not for Survey
No. 188/3, both the trial court and the Appellate
Court have rightly come to the conclusion that the
plaintiff   failed   to   correctly   describe   the   suit
property   and   it   cannot   be   accepted   that   deeds

claimed by him referred to the suit property.
23. Learned   counsel   for   the   respondent   has   laid
much emphasis on the Deed dated 29.7.1974 executed
by Sundara Rajan in favour of Padmanabhan which has
been   brought   on   the   record   of   paper   book   at   page
No.104. Learned counsel submits that said sale deed
clearly   proves the title of Padmanabhan over 2.79
acres   of   Survey   No.188.   The   said   deed   has   been
filed by the plaintiff­respondent as Exhibit A­14.
The   Deed   dated   29.7.1974   has   been   specifically
considered   by   the   trial   court   in   para   9   of   the
judgment.   The   trial   court   has   in   its   judgment
noticed   that   plaintiff   came   with   the   case   in   the
plaint   that   suit   property   was   inherited   by
Padmanabhan, however, he relied on Exhibits A­12 to
A­14 with regard to which there was no pleading in
the  plaint.  In  his  deposition,  PW.1  admitted  that
“it is correct to say that without disclosing this
deed in the plaint I filed Exhibits A­12 to A­15”.
When there  was no pleading in the plaint regarding
title   of   Padmanabhan   by   any   other   earlier   deed
except   the   claim   of   inheritance   the   trial   court
rightly  discarded the Deed  dated  29.7.1974.  It  is
further   relevant   to   note   that   plaintiff's
application made for amendment of the plaint in the
Appellate Court was considered and rejected by the
Appellate Court. The evidence, with regard of which
there is no pleading, has rightly been discarded by
the   trial   court.   Unless   there   is   a   pleading
especially with regard to the source of title, the
defendant   of   a   suit   has   no   opportunity   to   rebut
such pleading thus an evidence with regard to which
there   is   no   pleading   can   not   be   relied   by   the
plaintiff   for   setting   up   his   title   in   a   suit.
Secondly,   the   deed   dated   29.7.1974   referred   to
part of Survey No.188, whereas the suit was filed
in 2007 by the plaintiff by which date the Survey
No.188 was sub­divided as 188/1, 188/2, 188/3. The
deeds   through   which   plaintiff   claims   title   i.e.
28.8.1982,   General   Power   of   Attorney   dated
31.10.2007   and   sale   deed   dated   05.11.2007   do   not
refer   to   any   sub­division.   The   plaintiff   although
amended the schedule property from part of Plot No.
188 as Survey No.188/3 but he failed to prove his
title   over   Plot   No.188/3.   We,   thus,   do   find   that
the   trial   court   after   considering   the   document
dated 29.7.1974 held that plaintiff failed to prove
his title.
24. As   noted   above,   there   was   categorical   finding
by   trial   court   and   First   Appellate   Court   that
Defendant No. 1 is the owner of Survey No. 188/1 (2
acres and 2 cents) and 188/3(2 acres and 88 cents).
In the documentary evidence, filed by the defendant
both   the   aforesaid   sub   divisions   i.e.   Survey   No.
188/1   and   188/3   were   recorded   as   the   Temple
property. In the property records maintained by the
Hindu   Religious   &   Charitable   Endowment   Department
also Survey Nos. 188/1 & 188/3 were recorded in the
name of Temple. Extract of the property registered
was   produced   before   the   courts   below   which   was
believed.Page 18
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25. The   High   Court,   in   its   judgment   has   also
accepted   that   the   Temple's   name   is   recorded   for
Survey   Nos.   188/1   and   188/3.     The   High   Court,   in
its   judgment   had   held   that   total   extent   of   188/1
and   188/3   is   only   5   acres   and   10   cents,   whereas,
plot   No.   188   is   7   acres   84   cents,   hence,   the
plaintiff   was   entitled   to   the   remaining   extent.
Following observations  have  been  made by  the  High
Court in Para 16:
"16.   The   first   defendant   has   put
forth   its   right,   title   and
interest over the suit property by
virtue   of   Exs.   B1   to   B3.     In
Exhibits   B1   to   B3,   it   has   been
clearly   stated   that   Sub   Division
Nos.   188/1   and   3   are   standing   in
the   name   of   the   first   defendant
and its total extent is 5 acre 10
cents. It has already been pointed
out   that   the   total   extent   of
original Survey No. 188 is 7 acre
84 cents.  By virtue of Exs. B1 to
B3,   the   first   defendant   is
entitled   to   get   only   5   acre   10
cents   and   in   the   remaining
extent, the first defendant cannot
claim   any   right,   title   and
interest.”
26. Thus,   the   High   court   has   also   affirmed   thePage 19
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findings   of   the   courts   below   that   Temple   is
entitled   for   Survey   No.   188/1   and   188/3   i.e.   5
acres and 10 cents land. In spite of the aforesaid
findings,   the   High   Court   proceeded   to   decree   the
suit   on   the   basis   of   its   reasoning,   as   given   in
paragraphs 16 & 18 of the judgment. Para 18 of the
judgment of the High Court is as below:
"18. Considering the fact that no
document   has   been   filed   for   the
purpose   of   establishing   that
Survey   No.   188/2   stands   in   the
name   of   Janaki   Ammal   and   also
considering   that   the   first
defendant   is   not   the   absolute
owner of the entire extent of old
Survey   No.   188   except   5   acre   10
cents of land, the Court can very
well declare that the plaintiff is
the owner of the suit property and
since it is seen from Ex. A30 that
the   entire   extent   of   old   Survey
number stands in the name of first
defendant, the ancillary relief of
mandatory   injunction   can   also   be
granted   in   favour   of   the
plaintiff.”
27. The High Court proceeded on the premise   that
no   document   has   been   filed   for   purpose   of
establishing   that   Survey   No.   188/2   stands   in   the
name   of   Janaki   Ammal   and   further,   the   High   Court
proceeded   that   First   Defendant   being   not   absolute
owner of the old Survey No. 188 except 5 acres and
10 cents, the plaintiff is the owner of the rest of
the property.
28. Thus   virtually,   the   suit   has   been   decreed   by
the   High   Court   for   Survey   No.   188/2,   whereas,
Survey   No.   188/2   was   admittedly   recorded   in   the
name of Janaki Ammal, who was not impleaded in the
suit nor any relief was claimed against the Janaki
Ammal or for Survey No.188/2. In this context, it
is   useful   to   refer   to   the   evidence   of   Plaintiff
himself i.e. PW 1. PW 1, in his deposition before
the   court,   has   admitted   the   fact   that   Survey   No.
188/2 is in the name of Janaki Ammal and he has not
initiated   any   action   against   her   nor   she   was
impleaded in the suit. Following statement was made
by the PW 1 in his statement:
"It   is   correct   to   say   that   S.No.
188/2 stands in the name of Janaki
Ammal.   Now   the   said   Janaki   Ammal
sold   that   property   to   third
person.   I   have   not   initiated   any
action to include Janaki Ammal as
a party to this suit.”
29. In   view   of   the   statement   of   the   plaintiff
himself   that   Survey   No.   188/2   is   in   the   name   of
Janaki   Ammal,   the   observations   of   the   High   Court
that   no   documentary   evidence   was   filed   for   the
purpose   of   establishing   that   Survey   No.   188/2
stands   in   the   name   of   Janaki   Ammal   are   erroneous
and   mis­placed.   When   Plaintiff   himself   admitted
that   Survey   No.   188/2   is   recorded   in   the   name   of
Janaki Ammal, there was no basis for the High Court
to   come   to   conclusion   that   plaintiff   is   entitled
for the area apart from 5 acres and 10 cents, which
belonged to the Temple.
20. As noted above, one of the issues framed, as to
whether   the   suit   is   bad   for   non­joinder   of
necessary   party.   The   said   issue   was   answered
against the plaintiff and it was held that suit is
bad   for   non­joinder   of   Janaki   Ammal   a   necessary
party,  whose  name was recorded  against  Survey No.
188/2.   Without   adverting   to   the   said   findings   of
the trial court and the Appellate Court, the High
Court   has   erroneously   decreed   the   suit   of   the
plaintiff.
31. There   is   one   more   reason   due   to   which   the
judgment and the decree of the High Court cannot be
sustained.   The   trial   court   in   its   judgment   has
categorically recorded findings that the Defendant
No.   1   is   in   possession   of   the   suit   property.   In
para   10   following   findings   have   been   recorded   by
the trial court:
"From   the   oral   depositions   and
exhibits   produced   on   behalf   of
defendant   1,   it   is   clearly   found
that the suit property belonged to
defendant   1   Arulmigu   Chokkanatha
Swamy   Temple   and   it   is   in   its
possession   for   a   long   time
continuously.”
32. One of the submissions made before the courts
below,   on   behalf   of   the   defendant,   was   that   the
suit   for   mere   declaration   when   the   plaintiff   was
not   in   possession   of   the   property,   was   not
maintainable and hit by Section 34 of The SpecificPage 23
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Reliefs Act, 1963, the plaintiff having not sought
for recovery of possession.
33. Trial   court,   after   considering   the   aforesaid
submissions,   recorded   its   conclusions   in   para   14
which is to the following effect:
"From   the   facts   of   above   cited
suit,   plaintiff   in   this   suit   has
prayed   for   the   relief   of
declaration   without   seeking   the
relief   of   recovery   of   possession
and under these circumstances, it
is clearly seen that the plaintiff
is   not   entitled   to   get   such
relief. Therefore, it is held that
the   suit   is   not   maintainable
legally.”
34. Section   34   of   the   Specific   Reliefs   Act,   1963
provides as follows:
"Section   34.   Discretion   of   court
as   to   declaration   of   status   or
right.­Any person entitled to any
legal   character,   or   to   any   right
as to any property, may institute
a suit against any person denying,
or   interested   to   deny,   his   title
to   such   character   or   right,   and
the   court   may   in   its   discretion
make therein a declaration that he
is so entitled, and the plaintiff
need not in such suit ask for anyPage 24
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further relief:
Provided   that   no   court   shall
make   any   such   declaration   where
the plaintiff, being able to seek
further   relief   than   a   mere
declaration of title, omits to do
so.
..... ..... ....”
35. In the present case, the plaintiff having been
found   not   to   be   in   possession   and   having   only
sought   for   declaratory   reliefs,   the   suit   was
clearly   not   maintainable   and   has   rightly   been
dismissed by the trial court.  In this context the
reference   is   made   to   the   judgment   of   this   Court
reported   in  Ram   Saran   and   Anr.   versus   Smt.   Ganga
Devi, AIR 72 SC 2685, wherein para 1 & 4 following
was stated: 
"1.  This is  a  plaintiffs'  appeal
by   special   leave.   Ram   Saran   and
Raghubir Saran, the plaintiffs are
brothers. They jointly owned suit
property with Chhabili Kuer widow
of Lalita Prasad. After the death
of   Chhabili   Kuer   on   February   8,
1971, Ganga Devi the defendant in
the suit came forward as the legal
representative   of   Chhabili   Kuer
and  got  the  mutation  effected in
her   name   in   the   place   of   thePage 25
25
deceased   Chhabili   Kuer.   In   1958,
the   plaintiffs   brought   this   suit
for   a   declaration   that   they   are
the   sole   owners   of   the   suit
properties.   They   did   not   claim
possession either of the entire or
even   any   portion   of   the   suit
properties.
4.   We   are   in   agreement   with   the
High Court that the suit is hit by
Section  42 of the Specific Relief
Act. As found by the fact­finding
Courts,   Ganga   Devi   is   in
possession   of   some   of   the   suit
properties.   The   plaintiffs   have
not   sought   possession   of   those
properties. They merely claimed a
declaration   that   they   are   the
owners   of   the   suit   properties.
Hence   the   suit   is   not
maintainable.”
36. The plaintiff, who was not in possession, had
in  the  suit  claimed  only  declaratory  relief  along
with   mandatory   injunction.   Plaintiff   being   out   of
possession,   the   relief   of   recovery   of   possession
was   a   further   relief   which   ought   to   have   been
claimed   by   the   plaintiff.   The   suit   filed   by   the
plaintiff for a mere declaration without relief of
recovery of possession was clearly not maintainable
and the trial court has rightly dismissed the suit.
The   High   Court   neither   adverted   to   the   above
finding   of   the   trial   court   nor   has   set   aside   the
above   reasoning   given   by   the   trial   court   for
holding   the   suit   as   not   maintainable.   The   High
Court in exercise of its jurisdiction under Section
100   C.P.C. could not have reversed the decree of
the   courts   below   without   holding   that   the   above
reasoning   given   by   the   courts   below   was   legally
unsustainable. We, thus, are of the view that the
High Court committed error in decreeing the suit.
37. The   decree   of   the   High   Court   is   also
contradictory.   The   High   Court   has   affirmed   the
findings that Defendant No. 1 is the owner of the
Survey  No.  188/1  and  188/3,  whereas,  by  decreeing
the   suit   for   declaration   and   mandatory   injunction
the name of Defendant No. 1 is to be removed and
replaced   by   plaintiff   which   is   clearly   erroneous
and unsustainable.
38. In   view   of   the   above,   judgment   of   the   High
Court cannot be sustained. The High Court committed
an   error   in   reversing   the   judgments   of   the   trial
court   and   the   First   Appellate   Court.   In     result,
the appeal is allowed and the judgment of the High
Court is set aside and those of trial court and the
First Appellate Court are restored.
    …….…...........................J.
 (RANJAN GOGOI)
 .….....…...........................J.
 (ASHOK BHUSHAN)
NEW DELHI,
FEBRUARY 10, 2017.
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