The bar contained in proviso to Section 34 of the 1963 Act, in our opinion, could not be applied in the case of the plaintiffs as consequential relief for injunction from interference with the suit land was claimed. The prohibition contained in the proviso to Section 34 would operate only if the sole relief is for declaration without any consequential relief. In the plaint of the 1987 suit, relief for injunction was asked for. Such dual relief would protect the suit from being dismissed on maintainability ground. It is a fact that the plaintiff ought to have had asked for recovery of possession, given the factual background of this case, but the plaint as it was originally framed reflected that the original plaintiff was in possession of the suit land. Such plea rightly failed before the Trial Court and the First Appellate Court.
16. The prohibition or bar contained in proviso to Section 34 of the 1963 Act determines the maintainability of a suit and that issue has to be tested on the basis the plaint is framed. If the plaint contains claims for declaratory relief as also consequential relief in the form of injunction that would insulate a suit from an attack on maintainability on the sole ground of bar mandated in the proviso to the aforesaid section. If on evidence the plaintiff fails on consequential relief, the suit may be dismissed on merit so far as plea for consequential relief is concerned but not on maintainability question invoking the proviso to Section 34 of the 1963 Act. If the plaintiff otherwise succeeds in getting the declaratory relief, such relief could be granted.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5884 OF 2009
Akkamma & Ors. Vs Vemavathi & Ors.
Author: ANIRUDDHA BOSE, J.
The appellants before us are the plaintiffs in a suit instituted in
the year 1987 by their predecessor Arakeri Abbaiah claiming for
declaration of ownership of certain immovable property comprising of
10.54 guntas situated in Vibhuthipura Village, Krishnarajapura Hobli,
Bangalore South Taluk. Relief was also claimed in that suit in the
form of injunction directing the defendants therein not to interfere
with his peaceful possession and enjoyment of the suitproperty.
On
his death, Arakeri Abbaiah’s legal representatives were brought on
record. In this judgment, we shall refer to Arakeri Abbaiah as the
original plaintiff. He was the soninlaw
of the first defendant in the
suitMuniyappa.
Both the defendants have passed away subsequently
and their legal representatives are on record. The original second
2
defendant was the son of the first defendant at the time the suit was
instituted. Prior to this suit, another suit was filed by the original
plaintiff involving broadly the same immovable property in the year
1982. We shall discuss about the said suit later in this judgment and
the two suits shall be henceforth referred to by their years of
institution, i.e. 1982 suit and 1987 suit respectively. The case of the
original plaintiff before the Trial Court was that he had purchased the
suit land from its erstwhile owner, Papaiah under a registered sale
deed dated 29th May, 1972. The total area of the land that the original
plaintiff claimed to have had purchased was 1 acre 15 guntas and the
disputed property forms part of that block of land. In the plaint, the
original plaintiff’s case was that he was in exclusive possession and
enjoyment of the suit land ever since the date of purchase.
2. The subjectsuit,
i.e. the 1987 suit was founded, interalia,
on
the allegation that the defendants were making attempts to interfere
with the original plaintiff’s peaceful possession and enjoyment of the
property. It was specifically alleged that on 15th February, 1987 the
defendants interfered with the peaceful possession and enjoyment of
the suit land. It has also been alleged in the plaint that attempt to
trespass into the suit scheduled property was repeated by the
defendants on 25th February, 1987. In the 1987 suit, as we have
3
already indicated, reliefs claimed included declaration to the effect
that the original plaintiff was the absolute owner of the suit land and
prayer was also made for permanent injunction.
3. The original plaintiff had instituted the earlier suit in the Court of
XVIII Additional City Civil Judge at Bangalore City. The 1982 suit was
for perpetual injunction, and the claim for injunctive relief was similar
to that asked for in the 1987 suit though not on the same allegation of
interference. The earlier suit was registered as O.S. No. 3029/82. The
said suit was dismissed by the Trial Court on the ground that the
plaintiff could not establish his lawful possession. The decision of the
Trial Court in the 1982 suit was appealed against by the predecessor
of the present appellants, but that appeal was also dismissed by the
High Court of Karnataka on 25th November, 1986. It was thereafter the
suit, from which the present appeal arises, was instituted showing
threats of dispossession on the aforesaid two dates. This suit was
contested by the defendants by filing written statement and they had
set up title for themselves. The defendants raised the plea of purchase
of the suit land in benami transaction, and the first defendant claimed
to be the real owner of the suit land. The said suit was dismissed on
7th November, 1997. It has, however, been stated in the list of dates
contained in the paperbook that the Trial Court did not accept the
4
defendants’ plea of benami transaction.
4. This judgment was appealed against by the plaintiff before the
High Court. In appeal, the legal representatives of the original plaintiff
were brought on record. The appeal was allowed by the High Court
and the matter was remitted to the Trial Court. In the judgment of the
High Court delivered on 19th August, 2004 by which the matter was
remanded, it was, interalia,
held and directed:“
4. In this suit, the plaintiff has produced R o R extracts
marked at Exs. P4
to P.6 to prove his possession around the
date of the suit. The Plaintiff, on his part, has tendered
evidence. The Defendants although filed Written Statement,
have failed to crossexamine
the Plaintiff witnesses and failed
to let in their evidence The dismissal of earlier injunction Suit
would not come in the way of the plaintiff to file a Suit to seek
comprehensive relief of declaration of title. But the earlier Suit
for permanent injunction was dismissed on the ground that the
Plaintiff failed to prove his possession. The RoR extracts
produced by Plaintiff at Exs. P. 4 to P. 6 show that Plaintiff is in
possession. The trial court without reference to the said
evidence, has mechanically come to the conclusion that the
filing of the present suit is not maintainable in view of the
dismissal of the earlier suit and the related regular first appeal.
In that view of the matter, it is just and necessary that the
judgment of the Trial Court has to be set aside.
5. Accordingly, the impugned judgment of the trial court is set
aside and the matter is remitted to the Trial Court for fresh
disposal in accordance with Law. If Defendants participate and
request for summoning PW 1 and PW 2 for the purpose of
Crossexamination,
the request is to be granted and so also
Defendants should be permitted to adduce their evidence. No
fresh notices need be issued to the parties by the Trial Court.
Parties are directed to appear before the Trial Court on
06/09/2004. LCRs to be transmitted forthwith. The suit is to
be disposed of by the end of December 2004. The legal
representatives of the appellant Plaintiff are entitled to get
themselves impleaded in the suit by filing a memo and getting
5
the cause title amended accordingly. It is said that PW 1 is
dead. The Plaintiff is also entitled to adduce additional evidence
if he so desires.”
(quoted verbatim from the copy of the judgment as
reproduced in the paperbook)
5. On remand, the Court of VIII Additional City Civil Judge at
Bangalore City in the judgment delivered on 18th December, 2004
found that the plaintiffs (the plural form is being used as the suit was
being prosecuted from that point of time by legal representatives of the
deceased plaintiff) had proved ownership to the suit property. But on
the aspect of possession and obstruction thereto, the finding of the
Court went against the plaintiffs. The defendants’ stand that the
plaintiffs were never in possession of the property and there was no
cause of action for the suit was upheld. The Trial Court went against
the plaintiffs mainly on the ground that the plaintiff could not
establish that he was in possession. The Trial Court referred to the
evidence of the plaintiff witness no. 1, i.e. the original plaintiff who
had admitted that his fatherinlaw
was in possession of the suit land
and was cultivating thereon. In the 1987 suit, the original plaintiff
could not demonstrate as to how he came in possession of the suitland
after dismissal of the 1982 suit. This suit was dismissed, interalia,
on the following reasoning:“(
i) Though the plaintiff had admitted that the first defendant
was in possession and cultivation of the suit land, he did not
6
ask for relief for possession.
(ii) Mere suit for declaration was not maintainable without
the relief for possession. By declaring the plaintiff was the
owner of the property, no purpose would be served.”
6. It was also held in that judgment that the suit was timebarred.
On the point of limitation, it was held by the Trial Court, on remand:“
15. ……Further the dispute of title is confirmed by filing the
Written Statement by the Defendant No. 1 on 28/01/1983 but
the Plaintiff filed the present suit on 02/03/1987 after lapses
of 4 years 2 months. The Plaintiff had to file this suit within 3
years from the date of filing the written statement by the
present Defendant in O.S 3029/82. But filed after 4 years two
months. So, the Suit filed by the Plaintiff for declaration of title
is barred by time. Accordingly I answer Issue No. 5 in
affirmative.”
(quoted verbatim from the copy of the judgment as
reproduced in the paperbook)
7. Against this judgment of dismissal, the plaintiffs approached the
High Court of Karnataka. The appeal was registered as Regular First
Appeal No. 331 of 2005 and was ultimately dismissed on 21st July,
2008.
8. We find from the judgment under appeal that in course of
hearing before the High Court, the plaintiffs sought to amend the
plaint seeking alternative relief of possession of the suit property from
the defendants. On that point, the High Court has observed and held:“
6. ……..The dispute between the parties is pending from the
year 1982. The Trial Court vide judgment dated 7.9.1985 in
O.S. No. 3029/82 held that plaintiffs were not in possession
and enjoyment of the schedule property as on the date of filing
the suit in the year 1982. After lapse of 26 years, the plaintiffs
7
are now filing the application seeking amendment of plaint for
alternative relief for recovery of possession of the schedule
property. I perused the affidavit filed and I am not satisfied
with the explanation of the Plaintiffs for delay in filing the
application for amendment. It is not a case where the Plaintiffs
were not aware of the fact, that the Trial Court in its judgement
dated 7.9.1985 in O.S. No. 3029/82 held that the Plaintiff was
not in possession of the schedule property. At this length of
time, if the application of Plaintiff is allowed, it will lead to denovo
trial. Therefore, the application of the Plaintiff for
amendment of the plaint is hereby rejected.”
(quoted verbatim from the copy of the judgment
reproduced in the paperbook)
9. The High Court’s opinion was based on the reasoning contained
in an earlier decision of the same High Court, the case of Sri Aralappa
vs. Sri Jagannath & others (ILR 2007 Kar 339). In this judgment, it
was held:“
31. Even if the plaintiff comes to Court asserting that he is in
possession and that if it is found after trial that he was not in
possession on the date of the suit, even then, the suit for
declaration and permanent injunction is liable to be dismissed
as not maintainable, as no decree for permanent injunction can
be granted if the plaintiff is not in possession on the date of the
suit. In such circumstances, it is necessary for the plaintiff to
amend the plaint before the judgment and seek relief of
possession. Therefore, a suit for declaration of title and
permanent injunction, by the plaintiff who is not in possession
on the date of the suit, when he is able to seek further relief of
recovery of possession also, omits to do so, the Court shall not
make any such declaration and the suit is liable to be
dismissed as not maintainable”.
10. Before us, it has been urged on behalf of the appellants that
having regard to the provisions of Section 34 of the Specific Relief Act,
1963, the suit ought not to have been dismissed as along with claim
for declaration, injunctive relief was also asked for. Section 34 of the
8
1963 Act reads:“
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.
Explanation. – A trustee of property is a “person interested to
deny” a title adverse to the title of some one who is not in
existence, and whom, if in existence, he would be a trustee.”
The aforesaid provision of law has been construed uniformly in a
series of judgments. In the case of M. K. Rappai and Ors. vs. John
and Ors. [(1969 (2) SCC 590] dealing with a similar provision in
Section 42 of the Specific Relief Act, 1877, which was identically
phrased, it was held:“
12. ………a bare declaration of right will be within the mischief
of Section 42 of the Specific Relief Act, 1877 and Section 34 of
the Specific Relief Act, 1963.”
Same proposition of law has been followed in Ram Saran and
Anr. vs. Smt. Ganga Devi [(1973) 2 SCC 60], Vinay Krishna vs.
Keshav Chandra and Anr. [(1993) Supp 3 SCC 129] and Anathula
Sudhakar vs. P. Buchi Reddy (Dead) By LRS. And Ors. [(2008) 4
SCC 594].
11. The High Court, on factual score, observed in the judgment
9
under appeal:“
8. I am in full agreement with the view taken by the learned
Single Judge in Aralappa’s case. In the instant case the finding
of the Trial Court in O.S. No. 3029/82 stating that the Plaintiffs
were not in possession and enjoyment of the schedule property
had become final. It is not the case of Plaintiff that subsequent
to judgement in O.S. No. 3029/82 he recovered the possession
of the schedule property. That being the situation, there was no
impediment for the Plaintiff’s to seek the relief for recovery of
possession when they filed O.S. No. 1014/87. The Plaintiffs
having omitted to seek further relief of possession they are not
entitled for declaring and injunction. The reasoning of the Trial
Court in the impugned judgment is in accordance with law and
the same is supported by evidence on record. I find no
justifiable ground to interfere with the impugned judgment
passed by the Trial Court.”
(quoted verbatim from the copy of the judgment as
reproduced in the paperbook)
12. The position here is that the original plaintiff sued for declaration
of title and possession in the 1987 suit. The first Court found the
original plaintiff not to be in possession. It is true that reliefs claimed
by the original plaintiff were both for declaration and injunction, but
the latter having failed to establish possession of the suit land, his
case for injunction restraining the defendants from interfering with the
suit land failed. The plaintiffs want us to proceed on the basis that
since the Trial Court found ownership of the suit property having been
proved, possession should have been presumed. In two High Court
decisions, Devish vs. M.K. Subbiah and Ors. (AIR 1970 Mys 249) and
Navalram Laxmidas Devmurari vs. Vijayaben Jayvantbhai Chavda
10
(AIR 1998 Guj 17), the presumption of law that possession follows
tittle has been highlighted.
13. Our attention has also been drawn to certain portions of M.
Krishnaswamy’s “Law of Adverse Possession” (12th Edition). In this
commentary, the author has summarised the legal position in relation
to presumption of law in relation to vacant lands in the following
manner: “
Possession is not necessarily the same as actual user. To
prove possession, it is not necessary, generally, to prove user of
land. If the land is of such a nature as to render it unfit for
actual enjoyment in the usual modes, it may be presumed that
the possession of the owner continues until the contrary is
proved.
The jurisprudential concept of possession is made up of two
ingredients: (i) the corpus: and (ii) the animus. Corpus means
actual exclusive physical CONTROL over the property denoting
physical possession. The animus denotes the intention and
exercise of right to possess the property as owner to the
exclusion of others. These, two ingredients put together go to
constitute legal possession. Thus, the mere throwing of Gudha
(Garbage) over an open plot of land for a very long period much
more than even 12 years will not constitute legal possession of
the persons throwing Gudha and muchless can such user ripen
into adverse possession so as to extinguish the title of the
rightful owner.”
14. But these statements of law would not operate in this case, as
the original plaintiff in the earlier suit had admitted possession as also
use of the subjectland
by the first defendant. No case of granting
right of user has been made out either. Neither the plaintiff has
alleged casual use of the subjectland
by the first defendant. The
11
original plaintiff’s claim for possession was rejected in the 1982 suit
and in the subsequent suit also, which gives rise to this appeal, the
plaintiffs could not demonstrate repossession of land on the basis of
which he could obtain injunctive relief from disturbance of possession.
In both the two reported decisions in the cases of Devish (supra) and
Navalram Laxmidas Devmurari (supra) referred to earlier, the first
two Courts – being the Courts of fact had come to affirmative finding
about the plaintiffs’ possession of the suit property. So far as the
proceeding before us is concerned, the finding of the First Court is
otherwise. The plaintiffs sought to introduce prayer for recovery of
possession to cure the defect of not having made out a case on that
count by way of amendment of plaint at the appellate stage. The High
Court rejected this prayer. We have quoted earlier in this judgment the
reason for such rejection. We are in agreement with the High Court on
this point. While in a situation of this nature, amendment of plaint
could be asked for (Vinay Krishna vs. Keshav Chandra and Anr.),
such a plea ought to have been made within the prescribed limitation
period. This position of law has been clarified in the case of
Venkataraja and Ors. vs. Vidyane Doureradjaperumal (Dead)
Through Legal Representatives and Ors. [ (2014) 14 SCC 502]. In
this case, it has been held:12
“24. A mere declaratory decree remains nonexecutable
in most
cases generally. However, there is no prohibition upon a party
from seeking an amendment in the plaint to include the
unsought relief, provided that it is saved by limitation.
However, it is obligatory on the part of the defendants to raise
the issue at the earliest. (Vide Parkash Chand Khurana vs.
Harnam Singh and State of M.P. vs. Mangilal Sharma).”
15. We agree with that part of the decision of the High Court in
which it has been held that possession of the suit property was not
established by the plaintiffs and hence injunctive relief could not be
granted. As we have already recorded, we are also in agreement with
the High Court’s reasoning for rejecting the plea for amendment. But
we do not agree fully with the entire reasoning of the High Court for
dismissal of the appeal as spelt out in the said judgment. The bar
contained in proviso to Section 34 of the 1963 Act, in our opinion,
could not be applied in the case of the plaintiffs as consequential relief for injunction from interference with the suitland
was claimed. The prohibition contained in the proviso to Section 34 would operate only if the sole relief is for declaration without any consequential relief. In the plaint of the 1987 suit, relief for injunction was asked for. Such dual relief would protect the suit from being dismissed on maintainability ground. It is a fact that the plaintiff ought to have had asked for recovery of possession, given the factual background of this case, but the plaint as it was originally framed reflected that the original plaintiff was in possession of the suit land. Such plea rightly failed before the Trial Court and the First Appellate Court.
16. The prohibition or bar contained in proviso to Section 34 of the
1963 Act determines the maintainability of a suit and that issue has
to be tested on the basis the plaint is framed. If the plaint contains
claims for declaratory relief as also consequential relief in the form of injunction that would insulate a suit from an attack on
maintainability on the sole ground of bar mandated in the proviso to
the aforesaid section. If on evidence the plaintiff fails on consequential relief, the suit may be dismissed on merit so far as plea for consequential relief is concerned but not on maintainability question invoking the proviso to Section 34 of the 1963 Act. If the plaintiff otherwise succeeds in getting the declaratory relief, such relief could be granted. On this count, we do not accept the ratio of the Karnataka High Court judgment in the case of Sri Aralappa (supra) to be good law. In that decision, it has been held:“
31. Even if the plaintiff comes to Court asserting that he is in
possession and that if it is found after trial that he was not in
possession on the date of the suit, even then, the suit for
declaration and permanent injunction is liable to be dismissed
as not maintainable, as no decree for permanent injunction can
be granted if the plaintiff is not in possession on the date of the
suit. In such circumstances, it is necessary for the plaintiff to
amend the plaint before the judgment and seek relief of
possession. Therefore, a suit for declaration of title and
permanent injunction, by the plaintiff who is not in possession
on the date of the suit, when he is able to seek further relief of
recovery of possession also, omits to do so, the Court shall not
14
make any such declaration and the suit is liable to be
dismissed as not maintainable”.
17. So far as the reliefs claimed in the suit out of which this appeal
arises, prayer for declaration was anchored on two instances of
interference with the possession of land of the plaintiffs and injunctive
relief for restraint from interference with the property was also
claimed. But possession of the said property by the original plaintiff
was not established. The alternative relief sought to be introduced at a
later stage of the suit was also found to be incapable of being
entertained for the reason of limitation. Thus, the foundation of the
case of the plaintiffs based on these two factual grounds collapsed
with the factfinding
Courts rejecting both these assertions or
allegations. But that factor ought not to be a ground for denying
declaration of ownership to the plaintiffs. There is no bar in the
Specific Relief Act, 1963 in granting standalone declaratory decree.
The Trial Court came to a positive finding that the original plaintiff
was the owner of the suitproperty.
But it held that in absence of
declaration of relief of possession by the plaintiff, declaration of title
cannot be granted. We have already expressed our disagreement with
this line of reasoning. It seems to be a misconstruction of the
provisions of Section 34 of the 1963 Act. The Trial Court and the High
Court have proceeded on the basis that the expression “further relief”
15
employed in that proviso must include all the reliefs that ought to
have been claimed or might have been granted. But in our view, that is
not the requirement of the said proviso. This takes us to the corollary
question as to whether the 1987 suit could have been held to be
barred under the principle contained in Order II Rule 2 of the Code of
Civil Procedure, 1908. In our opinion, the said provisions of the Code
would not apply in the facts of this case, as the denial of legal right in
the 1987 suit is pegged on two alleged incidents of 15th and 25th
February, 1987. These allegations can give rise to claims for
declaration which obviously could not be made in the 1982 suit. The
claim for declaratory decree could well be rejected on merit, but the
suit in such a case could not be dismissed invoking the principles
incorporated in Order II Rule 2 of the Code of 1908.
18. The High Court has proceeded on the footing that in the subjectsuit,
the original plaintiff must have had asked for relief for recovery of
possession and not having asked so, they became disentitled to decree
for declaration and possession. But as we have already observed, the
proviso to Section 63 of the 1963 Act requires making prayers for
declaration as well as consequential relief. In this case, if the relief on
second count fails on merit, for that reason alone the suit ought not to
fail in view of aforesaid prohibition incorporated in Section 34 of the
16
1963 Act.
19. Having opined on the position of law incorporated in Section 34
of the 1963 Act, we shall again turn to the facts of the present case.
The first suit was for perpetual injunction, in which the original
plaintiff lost for failing to establish possession. In the second suit (the
1987 suit), reliefs were claimed for declaration based on allegation of
subsequent disturbances and on that basis injunctive relief was asked
for. The plaintiffs’ claim for being in possession however failed. Thus,
no injunction could be granted restraining the defendants from
disturbing or interfering with the original plaintiffs’ possession of the
suit land. But as the Trial Court found ownership of the original
plaintiff was proved, in our view the original plaintiff was entitled to
declaration that he was the absolute owner of the suit property. There
is no bar in granting such decree for declaration and such declaration
could not be denied on the reasoning that no purpose would be served
in giving such declaration. May be such declaratory decree would be
nonexecutable
in the facts of this case, but for that reason alone such
declaration cannot be denied to the plaintiff. Affirmative finding has
been given by the Trial Court as regards ownership of the original
plaintiff over the subjectproperty.
That finding has not been negated
by the High Court, being the Court of First Appeal. In such
17
circumstances, in our opinion, discretion in granting declaratory
decree on ownership cannot be exercised by the Court to deny such
relief on the sole ground that the original plaintiff has failed to
establish his case on further or consequential relief.
20. In these circumstances, we sustain the judgment of the High
Court that the plaintiffs were not entitled to injunctive relief as prayed
for and also the rejection of the plaintiffs’ plea for introduction of relief
for possession. But at the same time, we set aside that part of the
judgment by which it has been held that the plaintiffs were disentitled
to declaration of ownership of the property. We accordingly hold that
the plaintiffs are entitled to declaration that they are owners of the
suit property and there shall be a decree to that effect.
21. The appeal is party allowed in the above terms.
22. There shall be no orders as to costs.
……........................J.
(L. NAGESWARA RAO)
……........................J.
(ANIRUDDHA BOSE)
NEW DELHI;
NOVEMBER 25, 2021
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