Friday, 1 December 2017

Whether suit for declaration without claiming consequential relief is maintainable?

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 Specific 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 any 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. v. Smt. Ganga Devi MANU/SC/0523/1972 : AIR 1972 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 the 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 fact-finding 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 Code of Civil Procedure 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.


Civil Appeal No. 2342 of 2017 (Arising out of SLP (C) No. 21587 of 2014)

Decided On: 10.02.2017

Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust Virudhunagar Vs. Chandran and Ors.

Hon'ble Judges/Coram:
Ranjan Gogoi and Ashok Bhushan, JJ.

Citation: 2017(4) MHLJ 809.
Read full judgment here: Click here

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