Sunday 6 November 2016

Whether it is necessary to claim declaration in suit for possession?

However, it
 has been submitted on behalf of the plaintiffs that the
 main relief of the plaintiffs is recovery of possession
 based on title of the plaintiffs and that the suit of
 the plaintiffs is basically for recovery of possession.
 There is no doubt about it. Reliance is placed In the
 case of Corporation of the City of Bangalore v. M.
 Papaiah and another reported in A.I.R. 1989 S.C.
 1809. It was observed by the Hon’ble Supreme Court
 that a suit cannot be dismissed on the ground that the
 relief of declaration of title and possession has not
 been specifically mentioned in the plaint. In the case
 of Uchhab Gouda and others v. Ganesh Panda (A.I.R.
 1963 Orissa, 71) it was observed that it is not in the
 least necessary for a plaintiff in a suit for
 possession to claim a declaration. Indeed declarations
 in the true sense are rarely required. The plaintiff
 should only allege the facts necessary to establish his
 title and that the defendant is wrongfully in
 possession. If he goes on to claim, in the manner so
 beloved of pleaders, a declaration of title in addition
 to an order for possession, the Court may and should
 treat the case as a claim for possession pure and
 simple and ignore entirely the claim for a ’declaration
 of title’. In the case of The State of Maharashtra and 
 others v. Glaxo Laboratories (India) Pvt. Ltd. and
 another (1979 Bom. C.R.321),the Division Bench of this
 Court has held that a suit for a declaratory decree can
 only be a suit of the type specified in the said
 Section 34, and merely because a plaintiff choses in
 the plaint to ask for declarations which are really
 answers in his favour to issues which arise in the suit
 does not make that suit a declaratory suit or a suit
 for a declaratory decree. Again, in the case of Tanaji
 M. Shetkar vs. Rukmini P. Shetkar, (1991 (2) GLT
 153), it has been held that there is no necessity to
 seek declaration in a suit for injunction based on
 title. 
 IN THE HIGH COURT OF BOMBAY AT GOA
FIRST APPEAL NO. 89 OF 1996
  Shri Gopal Balcrishna Fallary,

 V
  State of Goa,

CORAM: N. A. BRITTO, J.

 DATED: 6.04.2004
 Citation:2004 (3) ALLMR 335

 This appeal is directed against the
 Judgment/Decree dated 11.6.1996 of the learned Civil
 Judge, Senior Division, Quepem.
 2. The appellants herein were the plaintiffs in SCS 
 No.2/1988/A. The dispute between the plaintiff and
 the defendants was regarding the land surveyed under
 No.35 of Village Villiena which has been referred to by
 both the parties to the suit as Survey No.35/1.
 3. The parties hereto are referred to in the names
 as they appears in the cause title of the suit.
 4. Briefly stated, it was the case of the plaintiff
 that they are the owners of the property known as
 "Mandabem" having Land Registration No.2124 situated at
 Villiena village of Sanguem Taluka bounded on the east
 by the property Irauila of Vithoba Poi Kakode; on the
 west by property Velpechem Tican of Velips; on the
 south by property Nouramolla of said Vithoba Kakode;
 and on the north limit of village Bhati.
 5. The plaintiffs stated that they reside at Margao
 and rarely go to Villiena and the plaintiff No.1 when
 he visited the property Mandabem about 3/4 years back,
 he came to know that the Government had clear felled
 forest produce and planted cashew saplings in the said
 Survey No.35/1 which forms part of the property
 Mandabem belonging to the plaintiffs and the defendants
 had no right, title and interest in the said portion.
 The plaintiffs stated survey No.35/1 was wrongly 
 surveyed in the name of the Government in the occupants
 column of Form I and XIV of the said village and the
 survey was promulgated in the year 1986. The plaintiff
 stated that the said survey number forms part and
 parcel of the property Mandabem situated at Villiena
 and, as such the name of the Government has to be
 deleted and in its place the name of the plaintiff has
 to be entered in the said column of the survey.
 6. The plaintiffs stated that notice dated
 10.7.1987 under Section 80 C.P.C. was issued to the
 defendants and defendant No.3 by letter dated 20th
 July, 1987 informed the defendant No.2 that the matter
 is pertaining to defendant No.2 and that the defendant
 No.2 by letter dated 8.9.1987 informed the Advocate of
 the plaintiffs that the Forest Department is having
 cashew plantation in the said area and that there is no
 question of encroachment of Forest Department in
 anybody’s private land. The plaintiffs stated that the
 said letter dated 8.9.87 gave cause for the plaintiffs
 for entitling for a declaration of title so also for
 deleting the name of the Government from the said
 column of the said survey of village Villiena and for
 possession of the said property under Survey No.35/1.
 The plaintiffs stated that the cause of action arose on
 or about three years back and in the year 1986 when the
 said survey was promulgated and later on when the said
 letter dated 8.9.87 was received by defendant No.2.
 7. On the other hand it was the case of the
 defendants that Survey No.35/1 of Villiena was known as
 "Vagpad" which property was declared as National Forest
 by Gazette dated 11.1.1951 Series II and the defendants
 auctioned the coupes in the property in the year
 1977-78 and the same was felled by the Government
 contractor in the same year. The defendants stated
 that the cashew plantation was raised in the year
 1978-79 and cashew plantation auction from the said
 property has been done for the last 5 to 6 years. The
 defendants denied that the said property formed portion
 of the property Mandabem. The defendants further
 stated that the plaintiffs do not have any right, title
 or interest in Survey No.35/1. The defendants denied
 that they violated the property rights of the plaintiff
 and stated that the plaintiffs have no right whatsoever
 in the said property. The defendants denied that the
 survey was wrongly entered in the name of the
 Government. The defendants denied that the plaintiffs
 were entitled to get the name of the Government deleted
 from the survey records and stated that the Government
 was the rightful owner of the property. The defendants
 denied that the cause of action had arisen three years 
 back or at any other time and further stated that the
 plaintiffs had no cause of action to file the present
 suit.
 8. In support of their case the plaintiffs examined
 plaintiff No.1 (p.W.1) and Engineer Shri Vikas Dessai
 (P.W.2). The defendants examined the Range Forest
 Officer Shri Godinho (D.W.1) and Forest Guard Shri
 Dessai (D.W.2).
 9. The plaintiffs have produced their document of
 title namely certificate of inscription and description
 PW1/A. The plaintiffs also produced a survey plan at
 Exh.PW1/B which shows that Survey No.35 has on its
 northern side the boundary of village Batty. The
 defendants produced their document of title namely the
 said Gazette with names of Forests enlisted by the
 Government. The same shows that as there was confusion
 as regards to the designation of State Forest in the
 Goa District, it was necessary to adopt officially more
 suitable names. The said Gazette shows that there is a
 National Forest belonging to the Government known as
 "Vagpad" situated in " Patelado" of Batty in village
 Villiena. The defendants also produced among other
 documents a proclamation issued under Section 6 of the
 Indian Forest Act 1927 giving the area of the said -- 6 --
 "Vagpad - I Forest as 1020.00 hectares and calling upon
 all persons claiming any right in or over the said land
 or forest to remain present and to state the nature of
 such right with particulars, etc. Admittedly the
 plaintiffs have not filed any representation or
 statement of their claim pursuant to the said
 Notification issued under Section 6 of the Indian
 Forest Act 1927.
 10. The first aspect which needs to be considered is
 the evidence of P.W.2 Vikas Dessai. As can be seen
 from the occupation given by him, P.W.2 Shri Dessai is
 a Civil Engineer. As rightly pointed out on behalf of
 the defendants, P.W.2 has not claimed to be a Surveyor
 who is conversant with surveying properties and
 therefore it is obvious that he cannot be termed to be
 an expert nor has he claimed any expertise in surveying
 properties. The plaintiffs have pleaded that their
 property is known as "Mandabem", but P.W.2 has stated
 that he was shown a document of the property known as
 "Nenden". He claims to have seen the boundaries but
 does not say whether he saw the said boundaries in loco
 or as per the document given to him. If the plaintiffs
 have stated that their property is bounded on the south
 by the property of Vitoba Kakode, P.W.2 Shri Dessai has
 stated that the property on the south is that of one 
 Pai. According to P.W.2 the plaintiff’s property falls
 part in Survey Nos.30, 32, 33, 34 and entire Survey
 No.35. The plaintiffs themselves did not plead under
 what survey numbers their property "Mandabem" was
 surveyed. But P.W.1 stated that the other survey
 numbers of their property are 33, 34 and others, but he
 did not remember them all, but all the survey numbers
 were touching one another. In cross-examination P.W.2
 Shri Dessai has stated that he could not tell which
 sub-division of Survey No.32 fell in the property of
 the plaintiffs and since he did not mention the area,
 he could not say howmuch area of Survey No.32 belonged
 to the plaintiffs and in further cross-examination he
 conceded that some portion of survey No.32 was paddy
 field but that he did not remember whether the names of
 the tenants were shown in the tenants column of Survey
 No.32. Likewise P.W.2 Dessai stated that he could not
 tell which sub-divisions of survey No.34 belonged to
 the plaintiffs which lie on the west of survey No.34
 and again conceded that a smaller portion of survey
 No.34 was also paddy field. He stated that no part of
 Survey No.32 and 34 touched the boundary of village
 Batty. He further stated that he did not prepare any
 report and conceded that the plaintiffs’ document did
 not mention any area. In further cross-examination he
 stated that the boundary marks were shown by the 
 plaintiffs and the same were confirmed by him. One
 fails to understand that in case the plaintiffs
 themselves do not know into how many survey numbers
 their property is surveyed, how could the plaintiffs
 ever show the boundary marks to P.W.2 Shri
 Dessai? Again, P.W.2 Shri Dessai stated that plaintiff
 NO.1 told him survey numbers of his property. I have
 already stated that the plaintiffs themselves do not
 know into how many survey numbers their property
 "Mandabem" has been surveyed into and if they knew
 about the same, the plaintiffs would have certainly
 mentioned the said survey numbers in the plaint or
 P.W.1 would have deposed regarding the said survey
 numbers before the Court. If P.W.2 Shri Dessai calls
 himself an expert, the least thing he could have done
 is draw a plan of the property "Mandabem" as claimed by
 the plaintiffs.
 11. It has been submitted by learned Sr. Counsel
 Shri Usgaonkar that the identification of the entire
 property was not in dispute. However, the fact remains
 that the plaintiffs have claimed Survey No.35 as part
 of their property and therefore it was necessary fo the
 plaintiffs to have shown the extent of their property
 and also to have mentioned the other survey numbers
 which were included in their property Mandabem. 
 Suffice to observe that P.W.2 Dessai has shown no
 expertise in identifying the property claimed by the
 plaintiffs with reference to the survey records. His
 evidence therefore deserves to be rejected.
 12. The second aspect which requires consideration
 is regarding possession of property surveyed under
 No.35. According to P.W.1 Shri Gopal Falari it is the
 Government who is in possession of the said land. He
 has also admitted that the Government has cultivated
 cashew plantation in the said property which, according
 to the Government, was done in the years 1978-79. The
 survey records namely Form I and XIV of survey No.35 is
 in the name of the Government. Admittedly, the said
 survey was conducted somewhere in the year 1972-74 and
 one could presume that the survey records were prepared
 based on actual possession of the Government. Section
 105 of the Land Revenue Code 1968 provides that an
 entry in the Record of Rights, and a certified entry in
 the registry of mutation shall be presumed to be true,
 until the contrary is proved or a new entry is lawfully
 substituted therefor. The plaintiffs have never
 claimed in their plaint that they have been in
 possession of the disputed property at any time and all
 that the plaintiffs pleaded was that the plaintiff No.1
 visited the property "Mandabem" somewhere in the years
 1984/85 when he came to know that the Government had
 clear felled the forest produce. In case the
 plaintiffs had visited the property "Mandabem" claimed
 by them earlier, the plaintiffs would have come to know
 that the disputed land was being possessed by the
 Government as part of their forest with definite
 boundary marks like cairns from the year 1967, as
 stated by D.W.2 Shri Dessai. The plaintiffs would have
 also come to know that forest produce from the same was
 cut in the years 1978-79 to make place for cashew
 plantation. The plaintiffs have failed to rebut the
 presumption regarding possession available to the
 defendants by virtue of section 105 of the Land Revenue
 Code. From the evidence led on behalf of the
 defendants, it could be safely concluded that Survey
 No.35 has been in possession of the defendants as part
 of their forest "Vagpad" situated at Villiena at least
 from the time the said forest was notified as a
 National Forest by virtue of Gazette Notification dated
 5.12.1950. The plaintiffs averment and the statement
 of P.W.1 that in the year 1984 he happened to go to his
 property and noticed that some of their trees were cut
 therefore cannot be believed and it is obvious that the
 same was made by the plaintiffs only to give them a
 cause of action for filing the suit. The fact that no
 boundaries of the forest were mentioned in the Gazette
 Notification dated 5.12.1950 is of no assistance to the
 case of the plaintiffs.
 13. The third aspect which needs to be considered is
 regarding title. Admittedly survey No.36 of village
 Villiena is also bounded on the north by village Batty.
 Admittedly the said survey No.36 is forest land and it
 is not the case of the plaintiff that their property
 Mandabem is bounded on the east by Government land or
 for that matter survey No.36 belonging to the
 Government. On the contrary, the case of the
 plaintiffs that on the east there is a property of
 Vitoba Poi Kakode which property the plaintiffs have
 failed to identify. As far as the plaintiffs are
 concerned, the southern boundary of their property is
 again the boundary of Vitoba Kakode which the
 plaintiffs have failed to identify and only because
 D.W.2 has stated that to the south of survey No.35 is
 private property belonging to the plaintiffs, does not
 mean that the plaintiffs have identified their southern
 boundary in relation to their property Mandabem. The
 entire case of the plaintiffs is based on their title
 document which shows the property "Mandabem" on the
 northern boundary as village Batty and likewise the
 survey plan shows the northern boundary of survey No.35
 as village Batty. If by the said parameters survey 
 No.35 belongs to the plaintiffs, then survey No.36
 could also belong to them because survey No.36 has also
 on its northern side village Batty as its boundary but
 it is not the case of the plaintiffs that survey No.36
 belongs to them. As already stated P.W.1 does not even
 know into how many survey numbers the property of the
 plaintiffs have been surveyed. According to P.W.1
 Falari their property is surveyed under Nos.33, 34 and
 others which he does not know, but according to P.W.2
 the property of the plaintiffs is surveyed under
 Nos.30, 32, 33 and 34. At the same time it was
 suggested to D.W.1 Godinho that the property of the
 plaintiffs consisted of survey No.30 (part), 33 (part)
 and 34(part). Likewise it was suggested to P.W.2 Shri
 Dessai, survey No.35/1 on the eastern and western sides
 belongs to the Forest Department. Different stands
 taken by the plaintiff at different stages only show
 that the plaintiffs are not at all aware about the
 extent of the property claimed by them. In fact P.W.1
 Falari has admitted that he does not know the total
 area of his property. P.W.1 Falari does not even know
 whether there is a road on the western side of his
 property when the survey plan (Exh.PW1/B) shows the
 existence of the road on the western side of survey
 No.35. P.W.1 Falari does not know what is the area of
 survey No.33 and for that matter in whose name it has 
 been recorded. Likewise he does not know the area of
 survey No.34 or in whose name it is recorded. He also
 does not know the area of survey No.35.He admits that
 there is a paddy field on the eastern side of his
 property but he does not know in which survey number
 the same is situated. The plaintiffs have failed to
 identify the western, southern and eastern boundaries
 of the property claimed by them. It is therefore not
 possible with the help of only one boundary namely that
 of village Batty is on the north of the property
 claimed by the plaintiffs to jump to the conclusion
 that survey No.35 is part of the property claimed by
 the plaintiffs. The plaintiffs have failed to show as
 to how and when the property claimed by them which was
 of coconut and paddy cultivation came to be forest
 land. Suffice to observe that the plaintiffs have
 failed to prove that survey No.35 is part of the
 property Mandabem claimed by them.
 14. Now I will proceed to consider the submissions
 made on behalf of the plaintiffs at the time of
 arguments. The plaintiffs inter alia prayed for a
 declaration in terms of prayer (a) of the plaint which
 prayer, on the plaintiffs’ own showing, is clearly time
 barred. I say so because P.W.1 himself has stated that
 he came to know about the possession of the Government
 in the year 1984 and the suit has been filed on 7.1.88
 after a period of more than three years. However, it
 has been submitted on behalf of the plaintiffs that the
 main relief of the plaintiffs is recovery of possession
 based on title of the plaintiffs and that the suit of
 the plaintiffs is basically for recovery of possession.
 There is no doubt about it. Reliance is placed In the
 case of Corporation of the City of Bangalore v. M.
 Papaiah and another reported in A.I.R. 1989 S.C.
 1809. It was observed by the Hon’ble Supreme Court
 that a suit cannot be dismissed on the ground that the
 relief of declaration of title and possession has not
 been specifically mentioned in the plaint. In the case
 of Uchhab Gouda and others v. Ganesh Panda (A.I.R.
 1963 Orissa, 71) it was observed that it is not in the
 least necessary for a plaintiff in a suit for
 possession to claim a declaration. Indeed declarations
 in the true sense are rarely required. The plaintiff
 should only allege the facts necessary to establish his
 title and that the defendant is wrongfully in
 possession. If he goes on to claim, in the manner so
 beloved of pleaders, a declaration of title in addition
 to an order for possession, the Court may and should
 treat the case as a claim for possession pure and
 simple and ignore entirely the claim for a ’declaration
 of title’. In the case of The State of Maharashtra and 
 others v. Glaxo Laboratories (India) Pvt. Ltd. and
 another (1979 Bom. C.R.321),the Division Bench of this
 Court has held that a suit for a declatory decree can
 only be a suit of the type specified in the said
 Section 34, and merely because a plaintiff choses in
 the plaint to ask for declarations which are really
 answers in his favour to issues which arise in the suit
 does not make that suit a declaratory suit or a suit
 for a declaratory decree. Again, in the case of Tanaji
 M. Shetkar vs. Rukmini P. Shetkar, (1991 (2) GLT
 153), it has been held that there is no necessity to
 seek declaration in a suit for injunction based on
 title. Therefore it could be conceded that prayer (a)
 of the plaint as far as the plaintiffs were concerned
 was not of much consequence, the plaintiff’s suit being
 one filed for recovery of possession. That should take
 us to Article 65 of the Indian Limitation Act 1963
 which provides 12 years for a suit for possession of
 immovable property or any interest therein based on
 title from the date when the possession of the
 defendant becomes adverse to the plaintiffs.
 15. Learned Advocate Shri Usgaonkar has submitted
 that the suit of the plaintiffs is within 12 years, the
 same having been filed on 7.1.88 after the plaintiffs
 came to know about the defendants’ possession in the 
 year 1984. Learned Advocate Shri Usgaonkar has placed
 reliance on the case of Indira v. Arumugam reported in
 A.I.R. 1999 S.C. 1549).
 16. In the above case the Hon’ble Supreme Court has
 observed that when the suit is based on title for
 possession, once the title is established on the basis
 of relevant documents and other evidence unless the
 defendant proves adverse possession for the
 prescriptive period, the plaintiff cannot be
 non-suited. However, neither the observations of the
 Supreme Court nor the submission made on behalf of the
 plaintiffs is attracted to the facts of this case. I
 have already concluded that the defendants are in
 possession of the disputed land - survey No.35 as part
 of their forest at least from the time the forest was
 notified as a National Forest and thereafter, if not
 earlier from the time the survey records were prepared
 in the years 1972-74. I have also concluded that the
 averment of the plaintiffs that the plaintiff no.1
 visited their property 3 - 4 years prior to the filing
 of the suit was an averment which was absolutely
 unsubstantiated and/or made with a view to make out a
 cause of action for filing the suit. I have also
 concluded that the plaintiffs were never in possession
 nor they claimed to be in possession of the disputed 
 survey No.35 of Villiena village which has always been
 in possession of the defendants as part of their forest
 "Vagpad" plaintiffs that the suit filed by them is
 within 12 years cannot be accepted.
 17. On behalf of the plaintiffs it is also submitted
 that the defendants were not entitled to take a plea
 that the forest "Vagpad" was a reserved forest.
 18. Reliance has been placed on behalf of the
 plaintiffs in the case of Ram Sarup Gupta (dead) by
 L.Rs., v. Bishun Narain Inter College and others
 (A.I.R. 1987 S.C., 1242) wherein the Hon’ble Supreme
 Court has observed that it is well settled that in the
 absence of pleading, evidence, if any, produced by the
 parties cannot be considered. However the said
 principle, in my opinion, cannot be applied to the
 facts of this case. I say so because the defendants
 pleaded that survey No.35 was known as "Vagpad" which
 was declared as a National Forest as published in
 Gazette dated 11.1.1951. If at all a copy of the
 Notification issued under Section 6 of the Indian
 Forest Act 1927 has been produced by the defendants, it
 is only produced to show that what was declared as a
 National Forest was being notified as reserved forest.
 As already stated, the plaintiffs have not filed any 
 claim pursuant to the said Notification issued under
 Section 6 of the Indian Forest Act, 1927, though till
 date no order has been issued as contemplated under
 Section 20 of the said Indian Forest Act 1927.
 19. In conclusion it may be observed that the
 plaintiffs have failed to prove both title and
 possession to survey No.35 of Villiena village, being
 part of their property Mandabem.
 20. For the above reasons, I find that there is no
 merit in this appeal and consequently the same is
 hereby dismissed with costs.
N. A. BRITTO, J.
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