Supreme Court: Suit for declaration of title simpliciter is not maintainable without claiming consequential relief of possession

 In Ram Saran v. Ganga Devi [MANU/SC/0523/1972 : (1973) 2 SCC 60] this Court had categorically held that the suit seeking for declaration of title of ownership but where possession is not sought, is hit by the proviso of Section 34 of the Specific Relief Act, 1963 and, thus, not maintainable. In Vinay Krishna v. Keshav Chandra [MANU/SC/0136/1993 : 1993 Supp (3) SCC 129] this Court dealt with a similar issue where the Plaintiff was not in exclusive possession of property and had filed a suit seeking declaration of title of ownership. Similar view has been reiterated observing that the suit was not maintainable, if barred by the proviso to Section 34 of the Specific Relief Act. (See also Gian Kaur v. Raghubir Singh [MANU/SC/0289/2011 : 2011:INSC:97 : (2011) 4 SCC 567).{Para 56}

 

57. In view of the above, the law becomes crystal clear that it is not permissible to claim the relief of declaration without seeking consequential relief.

58. In the instant case, the suit for declaration of title of ownership had been filed, though Respondent 1-Plaintiff was admittedly not in possession of the suit property. Thus, the suit was barred by the provisions of Section 34 of the Specific Relief Act and, therefore, ought to have been dismissed solely on this ground. The High Court though framed a substantial question on this point but for unknown reasons did not consider it proper to decide the same.

30. In Venkataraja and Ors. v. Vidyane Doureradjaperumal (Dead) thr. LRs (2-Judge Bench) MANU/SC/0354/2013 : 2013:INSC:236 : (2014) 14 SCC 502, the purpose behind Section 34 was elucidated by this Court. It was observed that the purpose behind the inclusion of the proviso is to prevent multiplicity of proceedings. It was further expounded that a mere declaratory decree remains non-executable in most cases. This Court noted that the suit was never amended, even at a later stage to seek the consequential relief and therefore, it was held to be not maintainable. 

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3854 of 2014

Decided On: 13.02.2024

Vasantha (Dead) thr. L.R. Vs. Rajalakshmi (Dead) thr. L.Rs.

Hon'ble Judges/Coram:

Hrishikesh Roy and Sanjay Karol, JJ.

Author: Sanjay Karol, J.

Citation:  MANU/SC/0105/2024.

Read full Judgment here: Click here.

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Supreme Court Explains basic concept of Adverse possession and its rational

In Saroop Singh v. Banto (2-Judge Bench) MANU/SC/1146/2005 : 2005:INSC:500 : (2005) 8 SCC 330, this Court observed that Article 65 states that the starting point of limitation does not commence from the date when the right of ownership arises to the Plaintiff but commences from the date the Defendant's possession becomes adverse. Further relying on Karnataka Board of Wakf v. Govt. of India (2-Judge Bench) MANU/SC/0377/2004 : 2004:INSC:276 : (2004) 10 SCC 779, it observed that the physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases related to adverse possession. Plea of adverse possession is not a pure question of law but a blend of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession; (b) what was the nature of his possession; (c) whether the factum of possession was known to the other party; (d) how long his possession has continued; and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to prove his adverse possession.

{Para 20}

21. This Court in Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan (2-Judge Bench) MANU/SC/4083/2008 : 2008:INSC:1075 : (2009) 16 SCC 517, reiterating the observations made in P.T. Munichikkanna Reddy v. Revamma (2-Judge Bench) MANU/SC/7325/2007 : 2007:INSC:453 : (2007) 6 SCC 59 in respect of the concept of adverse possession observed that efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which, right to access the court expires through efflux of time. As against the rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights but to protect those who have maintained the possession of property for the time specified by the statute under a claim of right or colour of title.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3854 of 2014

Decided On: 13.02.2024

Vasantha (Dead) thr. L.R. Vs. Rajalakshmi (Dead) thr. L.Rs.

Hon'ble Judges/Coram:

Hrishikesh Roy and Sanjay Karol, JJ.

Author: Sanjay Karol, J.

Citation:  MANU/SC/0105/2024.

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Whether court should dismiss the suit for injunction and declaration if it rejects prayer of plaintiff for injunction?

 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.

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Whether a suit for declaration of legal heir is triable by Civil Court or by a Family Court?

          In the case at hand, the plaintiff-petitioners instituted the suit under Section 34 of the Specific Relief Act seeking declaration that plaintiff No. 1 is the only legal heir of one deceased Matangini Suklabaidya and seeking further declaration that the defendant No. 1 is not the heir of said Matangini Suklabaidya and such declaration, in my considered opinion, cannot be given by the Family Court and it is the absolute jurisdiction of the Civil Court to give such declaration as to the status of a person whether the plaintiff No. 1 is a legal heir or the defendant No. 1 is a legal heir or not.

9. The Civil Court jurisdiction cannot be put into a water type compartment. The jurisdiction of the Civil Court is wide. Only where there is a special law enacted to deal with some particular aspect the jurisdiction of the Civil Court will be ousted. The Family Court is a Court established under the Family Courts Act to deal with particular aspect in respect of the dispute concerning family, but here in this case, the status of two persons as to whether they are legal heirs or not is in the dispute which shall be decided by the Civil Court and not by the Family Court. The learned Civil Judge, Jr. Division committed gross error of law in directing transfer of the case from his Court to the Family Court and hence the impugned order is liable to be interfered and set aside.

               TRIPURA HIGH COURT

(Before S.C. Das, J.)

Smt. Pramila Suklabaidya,  Vs Smt. Jyostna Suklabaidya, 

CRP No. 02 of 2008

Decided on May 28, 2015

Citation: 2015 SCC OnLine Tri 529 : (2015) 153 AIC 896

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Whether the daughter can get a partition of ancestral property by disowning relinquishment deed?

 The plaintiffs, while admitting the execution of sale deed Ex.A-2, refute the release deed. The recital in the release deed refers the execution of sale deed Ex.A-2 in respect of 0.91 cents and about the receipt of Rs. 2,32,060/- each by the plaintiffs 1 and 2, as consideration for relinquishing their right in the remaining property, left by their father.{Para 11}

12. Two reasons are mentioned in Ex.A-4 for the cancellation of the release deed Ex.A-3. First, it was obtained by fraud and misrepresentation. They came to know about it, when they applied for encumbrance certificate. Second, the plaintiffs were not paid the full amount agreed by the defendants 1 to 5. These two reasons found in the deed of cancellation conspicuously not mentioned in the plaint. Further, for the first reason, the plaintiffs have not mentioned the date of their application for E.C (encumbrance certificate) or evidence to show they applied for E.C (encumbrance certificate). For the second reason (i.e.,) short payment of the money agreed, the amount paid and the exact amount unpaid neither pleaded nor proved.

13. By filing the partition suit, the plaintiffs disown their own document namely the release deed Ex.A-4 duly registered and presumed to be an official act performed regularly. If the terms of contract reduced into writing and duly registered is sought to be excluded by oral evidence, the burden is on the plaintiffs to adduce evidence sufficient to exclude the written evidence, as per section 92 of the Evidence Act.

16. Section 91 and section 92 proviso (i) of Indian Evidence Act, clearly lay down the rule when a written evidence could be excluded by oral evidence is permissible. In this case, the due execution of release deed Ex.A-3 is proved through the document and through the attesting witness D.W-2. To disprove it, the plaintiffs have not placed sufficient evidence to establish same was executed by misleading them and the consideration mentioned in the release deed not paid to them.

19. After executing a release deed (Ex.A-3) on 12.07.2006, the plaintiffs had cancelled the said release deed (Ex.A.4) on 17.08.2006 without any notice to the beneficiary of the release deed. Later, without any further relief of declaration in respect of those deeds, the suit for partition filed. When Section 34 of the Specific Relief Act, restrains the Courts from entertaining suits filed for mere declaration as to right when the plaintiffs are able to seek further relief, and same omitted to do so. Therefore, for the reasons stated above, this Court confirms the decree and judgment of the Additional District Court, Fast Track Court No. V, Coimbatore and dismissed the Appeal with costs.

 In the High Court of Madras

(Before G. Jayachandran, J.)

Tmt. Karuppathal  Vs P. Ponnusamy, (deceased) 

A.S. No. 809 of 2009

Decided on February 17, 2021,

Citation: 2021 SCC OnLine Mad 677

The Judgment of the Court was delivered by

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Whether suit for declaration is maintainable without claiming possession even if plaintiff is not in possession of suit property?

 He further submits that plaintiffs are not in

possession of the suit property therefore, the suit merely for

declaration is not maintainable in view of the bar under section

34 of Specific Relief Act.

7) Having heard the learned counsel for parties and on

perusal of the record it is noticed that parties are members of

same family and suit has been filed by respondents no.1 to

5 plaintiffs with the plea that their ancestor Motilal had

purchased the suit property in the name of his wife Smt.

Sohanbai who was wholly dependent on him having no source

of income to maintain herself. It was further pleaded that

Sohanbai alongwith plaintiffs was residing in the suit property

and when plaintiffs had purchased the separate house, Smt.

Sohanbai had continued to live alone in the suit property. In the

suit, plaintiffs have claimed that they have share in the suit

property and accordingly prayed for partition and also declaring

the gift deed executed by defendant no. 2 in favour of

defendants no. 3 and 4 (petitioners herein) as null and void and

claiming relief of permanent injunction restraining the parties

from changing the nature of or alienating the suit property.

15) So far as the issue of maintainability of the suit for

declaration in terms of Section 34 of Specific Relief Act is

concerned, the trial court has rightly noted that the suit filed by

plaintiffs is as against co-owner for partition, hence the plaintiffs

in possession through co-owner can maintain the suit for

declaration and partition and he is not required to separately

claim possession under section 34 of Specific Relief Act.

HIGH COURT OF MADHYA PRADESH BENCH AT INDORE

(S.B.: HON. SHRI JUSTICE PRAKASH SHRIVASTAVA)

Civil Revision No. 136/2011

Vishal Vs.   Hukumchand (dead) through his L.Rs.& others

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Whether averments made in the plaint can be presumed to be correct while deciding application for rejection of plaint?

 It is also settled law that while considering the question of whether a plaint deserves to be rejected as being barred by limitation, the averments made in the plaint in the entirety need to be looked at, presuming them to be correct. It has also been held by the Hon'ble Supreme Court in the case of Liverpool & London S.P. & I Association Ltd. v. M.V. Sea Success I and another reported in MANU/SC/0951/2003 : (2004) 9 SCC 512, that documents produced along with the plaint can be looked into while considering a question of rejection of plaint raised on behalf of the defendant.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Revision Application No. 64 of 2015

Decided On: 22.03.2018

Rajendra  Vs  Harbanssingh and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2018(6) MHLJ 78

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Whether it is permissible to seek relief of declaration without seeking consequential relief?

 In view of above, the law becomes crystal clear that it is not permissible to claim the relief of declaration without seeking consequential relief. In the instant case, suit for declaration of title of ownership had been filed though, the Plaintiff/respondent No. 1 was admittedly not in possession of the suit property. Thus, the suit was barred by the provision of Section 34 of the Specific Relief Act and, therefore, ought to have been dismissed solely on this ground. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1374 of 2008

Decided On: 17.07.2012

 Union of India (UOI) Vs.  Ibrahim Uddin and Ors.

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Whether declaration given U/S 34 of specific relief Act is binding on third party?

By virtue of section 35 of the Specific Relief Act a declaration given under section 34 is binding only between the parties. It is declaration in personam and not in rem. Thus the Indian Authorities would not be bound by the declaration. 

IN THE HIGH COURT OF BOMBAY

Notice of Motion No. 1272, 1638 and 1663 of 1999 in Suit No. 2352 of 1999

Decided On: 10.09.1999

SNP Shipping Services Pvt. Ltd. & others  Vs. World Tanker Carrier Corporation & another

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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.

IN THE SUPREME COURT OF INDIA

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.

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Whether small cause court can entertain suit for declaration of title?

The objection of the Appellants to the jurisdiction of this Court is founded on the provisions of Section 41 of the Presidency Small Causes Courts Act, 1882 under which notwithstanding anything contained elsewhere in the Act, but subject to the provisions of sub-section (2), the Court of Small Causes shall have jurisdiction to entertain and try all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay, or relating to the recovery of the licence fee or charges or rent therefor, irrespective of the value of the subject matter of such suits or proceedings. The Full Bench has held in Kotecha that this would cover a suit against a gratuitous licensee. Section 41 forms a part of Chapter VII of the Act of 1882. Section 45, however, stipulates as follows:-

45. Nothing contained in this Chapter shall be deemed to bar a party to a suit, appeal or proceeding mentioned therein in which a question of title to any immovable property arises and is determined, from suing in a competent court to establish his title to such property.

Consequently, notwithstanding anything contained in any other provisions of that Chapter, including Section 41, there is no bar to a party to a suit in which a question of title to any immovable property arises from suing in a competent court to establish his title to such property. Apart from this, Section 19(s) of the Act of 1882 specifically stipulates that the Small Causes Court shall have no jurisdiction inter alia in suits for declaratory decrees. From these provisions, it is clear that a suit seeking a declaration of title and in consequence a decree for possession of the nature that has been sought would be maintainable before this Court and the jurisdiction would not be barred by the provisions of Section 41 of the Presidency Small Causes Courts Act, 1882. The question of title cannot be decided by the Court of Small Causes.

IN THE HIGH COURT OF BOMBAY

Appeal No. 275 of 2012 in Suit No. 4162 of 1995 with Notice of Motion No. 1296 of 2012 in Appeal No. 275 of 2012 in Suit No. 4162 of 1995

Decided On: 18.03.2013

 Smita Rajeev Sah & Anr. Vs. Roop Narain Sah & Anr.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud & A.A. Sayed, JJ.

Citation: 2013(5) MHLJ211

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How to ascertain limitation for seeking declaration that there was no marriage?

 If a party wants a declaration that there was no marriage and no marriage was conducted and thereby the status of the wife or husband should not be given to any of the spouses, then it will be a relief outside the purview of the matrimonial laws under the statutes no such declaration be possible and that is a common law remedy available which was codified into a right under Section 34 of the Specific Relief Act. Once such declaration has to be sought for, which is not coming under the purview of the Marriage Laws as per the statutes provided for that purpose, then the bar under Section 29(3) of the Limitation Act will not be attracted and for such suits or proceedings, the general of limitation available for seeking such declaration alone can be attracted.

47. This aspect has been considered by the Allahabad High Court in the decision reported in R.P. Agrawal v. Smt. Urmila Devi (MANU/UP/0787/1981 : 1982 Allahabad Law journal 260), where it has been held that, where an application for maintenance under Section 488of Code of Civil Procedure 1898(old) was filed by alleging solemnisation of marriage before coming into force of Hindu Marriage Act to have that marriage declared invalid could be governed by Article 58 and not residuary Article 113 and hence would be barred by limitation, when filed after expiry of three years from the date of application under Section 488. Further as Hindu Law of Marriage which was in force before the commencement of Hindu Marriage Act, 1955 did not provide for a suit for a declaration that the marriage solemnised while the applicant's husband by earlier marriage was alive and invalid. Further even going by the dictum mentioned above, it will be seen that, in order to attract the provisions of the Hindu Marriage Act, for nullifying the marriage or dissolving the marriage, it can be done only on the grounds available therein and solemnisation of the marriage must be admitted. Further in this case, appellant is not admitting the marriage, but only admitting the relationship and he wanted a declaration that there was no marriage at all.

48. Further it was admitted by the appellant that, even in the year 1988, when they started residing separately, the respondent filed an application for maintenance for herself and for the minor child and in that case, the appellant admitted the existence of marriage and suffered an order against him. Even in the subsequent proceedings between the parties also, he did not object the existence of marital relationship between the parties, which was necessary for deciding the issues in those cases. So he did not object the status of the respondent as his wife for want of customary marriage at the first point of time when it occurred for consideration. But suffered an order against him.

49. Article 58 of Limitation Act which reads as follows:

In both these articles, the Limitation will start when the right to sue first accrues.

50. As far as the appellant is concerned, that has accrued to him when the respondent had made a claim for maintenance, alleging that she is the legally wedded wife of the appellant and a suit filed long after suffering an order of maintenance namely nearly 17 years of that cause of action is highly belated and barred by limitation. Since it is a question of law which has to be considered by the court even if it is not raised that can be considered by the appellate court at the appellate stage in an appeal filed by the appellant invoking the power under Order 41 Rule 22 and 33 of Code of Civil Procedure. So the suit filed after three years of the accrual of the cause of action to the appellant to challenge the same, is clearly barred by limitation and on that ground also the appellant is not entitled to get the relief claimed.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Mat. Appeal No. 351 of 2006

Decided On: 16.06.2017

 D. Sivadasan

Vs.

 Santha

Hon'ble Judges/Coram:

A.M. Shaffique and K. Ramakrishnan, JJ.

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Supreme Court: Declaration about marital status can not be declared with out hearing affected person

There was allegation that husband was married to one lady by name Laxmi. No notice issued to said laxmi nor she was made party to proceedings. Any declaration about her marital status vis-a-vis husband is wholly null and void as it will be violative of rules of natural justice.

Supreme Court of India

D.Velusamy vs D.Patchaiammal on 21 October, 2010

Author: M Katju

Bench: Markandey Katju, T.S. Thakur

CRIMINAL APPEAL NOS. 2028-2029__OF 2010

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