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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Whether a party can claim a declaration of title in Representative suit?

 E.2.1 Determination of title in a Representative suit

32. In Mahant Pragdasji Guru Bhagwandasji v. Patel Ishwarlalbhai Narsibhai AIR 1952 SC 143, a three judge Bench of this Court explained the ambit of a representative suit under Section 92 of the CPC. In that case, one of the reliefs sought was the declaration of the suit property as the religious and charitable trust property of Kaivalya or Karuna Sagar Panth while the defendant contended that the suit property was private property. Justice BK Mukherjea speaking for the Bench expounded on the scope of a suit under section 92 CPC, particularly in view of the relief seeking a declaration:

“10 A suit under S.92. Civil P.C. is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such suit can proceed only on the allegation that there is a breach of such trust or that directions from the Court are necessary for the administration thereof, and it must pray for one or other of the reliefs that are specifically mentioned in the section. It is only when these conditions pre fulfilled that the suit has got to be brought in conformity with the provision of S.92, Civil P.C. As was observed by the Privy Council in Abdul Rahil v. Md. Barkat Ali. 55 Ind, App. 96, P.C. a suit for a declaration that certain property appertains to a religious trust may lie under the general law but is outside the scope of S.92. Civil Procedure Code. In the case before us, the prayers made in the plaint are undoubtedly appropriate to the terms of Section 92 and the suit proceeded on the footing that the defendant, who was alleged to be the trustee in respect of a public trust, was guilty of breach of trust. The defendant denied the existence of the trust and denied further that he was guilty of misconduct or breach of trust. The denial could not certainly oust the jurisdiction of the court, but when the courts found concurrently, on the evidence adduced by the parties, that the allegations of breach of trust were not made out, and as it was not the case of the plaintiffs, that any direction of the court was necessary for proper administration of the trust, the very foundation of a suit under Section 92 of the Civil Procedure Code became wanting and the plaintiffs had absolutely no cause of action for the suit they instituted. In these circumstances, the finding of the High Court about the existence of a public trust was wholly inconsequential and as it was unconnected with the grounds upon which the case was actually disposed of, it could not be made a part of the decree or the final order in the shape of a declaratory relief in favour of the plaintiffs. It has been argued by the learned Counsel for the respondents that even if the plaintiffs failed to prove the other

allegations made in the plaint, they did succeed in proving that the properties were public and charitable trust properties — a fact which the defendant denied. In these circumstances, there was nothing wrong for the court to give the plaintiffs a lesser relief than what they actually claimed. The reply to this is, that in a suit framed under Section 92 of the Civil Procedure Code the only reliefs which the plaintiff can claim and the court can grant are those enumerated specifically in the different clauses of the section. A relief praying for a declaration that the properties in suit are trust properties does not come under any of these clauses. When the defendant denies the existence of a trust, a declaration that the trust does exist might be made as ancillary to the main relief claimed under the section if the plaintiff is held entitled to it; but when the case of the plaintiff fails for want of a cause of action, there is no warrant for giving him a declaratory relief under the provision of Section 92 of the Civil Procedure Code. The finding as to the existence of a public trust in such circumstances would be no more than an obiter dictum and cannot constitute the final decision in the suit.

”

(emphasis supplied)

33. Bhagwandasji (supra) lays down the following principles on the ambit of a representative suit under section 92 CPC:

(i) The plaintiff can only seek reliefs that fall under any of the clauses in section 92 CPC. A declaration that the suit property belongs to the trust, does not fall under the scope of any of the reliefs enumerated in section 92 CPC and is outside the scope of the provision;

(ii) Merely because the defendant denies the title of the trust over the suit property, the jurisdiction of the court cannot be ousted;

(iii) When the title of the trust is contested, a determination of the title of the suit property is necessary for the purpose of adjudication on the final relief, and thus it can be made ancillary to the main relief if the plaintiff is entitled to the relief sought under Section 92 CPC; and

(iv) If the plaintiff is not entitled to the relief sought, then in that case no determination on the title of the suit property can be made since it would be inconsequential to the final decision in the suit.

On applying the principles evolved in Bhagwandasji (supra) to the facts of the case, the relief sought in the first suit under section 92 CPC was for determination of a scheme of management of the mosque. A determination of the title of the suit property with respect to the mosque was ancillary to the main relief, under Section 92 of the CPC.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 10946 of 2014

The Jamia Masjid Vs  Sri K V Rudrappa

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Supreme Court: Defendant can not take the plea of title as well as adverse possession simultaneously and from the same date

 We may also note that on the one hand, the appellants herein have sought to take a plea of bar of limitation vis-à-vis the original defendant claiming that possession came to them in 1976, with the suit being filed in 1989. Yet at the same time, it is claimed that the wife had title on the basis of these very documents. The claim of title from 1976 and the plea of adverse possession from 1976 cannot simultaneously hold. On the failure to establish the plea of title, it was necessary to prove as to from which date did the possession of the wife of the defendant amount to a hostile possession in a peaceful, open and continuous manner. We fail to appreciate how, on the one hand the appellants claimed that the wife of the original defendant, appellant 1 herein, had title to the property in 1976 but on their failure to establish title, in the alternative, the plea of adverse possession should be recognised from the very date.

In order to establish adverse possession an inquiry is required to be made into the starting point of such adverse possession and, thus, when the recorded owner got dispossessed would be crucial.P.T. Munichikkanna Reddy & Ors. (supra)

35. In the facts of the present case, this fact has not at all been proved.

The possession of Smt. Narasamma, the wife of the defendant, is stated to be on account of consideration paid. Assuming that the transaction did not fructify into a sale deed for whatever reason, still the date when such possession becomes adverse would have to be set out. Thus, the plea of adverse possession is lacking in all material particulars.

36. The possession has to be in public and to the knowledge of the true

owner as adverse, and this is necessary as a plea of adverse possession

seeks to defeat the rights of the true owner. Thus, the law would not be

readily accepting of such a case unless a clear and cogent basis has been made out.M. Siddiq (Dead) Through LRs (Ram Janmabhumi Temple Case) v. Mahant Suresh Das & Ors.(supra)

37. We may also note another judicial pronouncement in Ram Nagina Rai & Anr. v. Deo Kumar Rai (Deceased) by LRs & Anr.(2019) 13 SCC 324 dealing with a similar factual matrix, i.e., where there is permissive possession given by the owner and the defendant claims that the same had become adverse. It was held that it has to be specifically pleaded and proved as to when possession becomes adverse in order for the real owner to lose title 12 years hence from that time.

38. The legal position, thus, stands as evolved against the appellants herein in advancing a plea of title and adverse possession simultaneously and from the same date.

39. We have, thus, no hesitation in coming to the conclusion that the appeal is meritless and is accordingly dismissed with costs.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2710 OF 2010

NARASAMMA Vs  A. KRISHNAPPA 

Author: SANJAY KISHAN KAUL, J.

Dated:August 26, 2020.

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Whether decision of civil court regarding title over suit property will prevail over decision of assistant charity commissioner?

Now the question arises what is the effect of finding given by Assistant Charity Commissioner in Inquiry No. 151/1997 dated 13.01.2006, holding that the suit property is the property of plaintiff Trust (Exh. 190). The questions arise whether after the decision of Assistant Charity Commissioner regarding nature of the suit property as Trust property, whether defendants can prove their title over the suit property or whether the plaintiff Trust will be held as title holder of the suit property.

12. The Full Bench of this Court had occasion to consider the effect of decision given by Charity Commissioner under inquiry under Section 19 (ii) read with Section 22A of the Trust Act in the case of "Keki Pestonji Jamadar and anr. Vs. Kohodadad Merwan Irani and others" reported in (MANU/MH/0125/1973 : 1972 Mh.L.J. 427). While considering the procedure prescribed by the Trust Act for the conduct of inquiry under Section 19, the Full Bench observed that,

"The procedure prescribed by the Act for the conduct of inquiries under Section 19 is wholly unsuited to a proper and effective adjudication of disputed titles to the trust property. Under Section 19 the Deputy or Assistant Charity Commissioner has to conduct an inquiry "in the prescribed manner". Rule 7 which deals with the manner of inquiries provides that the procedure prescribed for the trial of the suits under the Presidency Small Cause Courts Act, 1882 or the Provincial Small Cause Courts Act, 1887, as the case may be, would apply to the proceedings under Section 19. Under Section 19 (d) (e), (f) and (g) of the Presidency Small Cause Courts Act, 1882 and under Item 4 of the Second Schedule of the Provincial Small Cause Courts to decide questions of title to immovable property is expressly excluded and the procedure devised for trials under those Acts is consequently far too summary for a proper adjudication of such titles. The provision in Rule 7 that a party to an inquiry can appear through an agent and the power of the Tribunal to exclude lawyers from the inquiries reveal to some extent the narrow nature of the inquiry envisaged by Section 19.

Rule 11 provides that the officer holding the inquiry may only make a memorandum of the substance of what each witness deposes. It is unthinkable that questions of title could be permitted to be decided by a Tribunal finally and conclusively without any obligation to record the evidence fully. It is matter of common experience that subtle shades of evidence are often missed in a memorandum containing merely the substance of the evidence".

13. Full Bench of this Court considered Section 26 of the Trust Act under which any Court of competent jurisdiction deciding any question relating to any public trust, which by or under the provisions of Act it is not expressly or impliedly barred from deciding, has to send copy of such decision to the Charity Commissioner and Charity Commissioner has to cause entries in the register to be made or amended in accordance with such decision. This Court held that if a Civil Court upholds the title of third party to the property, which under Section 19 has been found to belong to the trust, the record of the Charity Commissioner has to be amended so as to accord with that decision. The decision of Civil Court will have priority over the decision recorded in the inquiry under Section 19 of the Trust Act. While explaining the above-said judgment of the Full Bench, the Division Bench of this Court, in the case of "Samastha Lad Vanjari Samaj, Ram Mandir Trust Vs. Waman Kisan Sanap and others" reported in (MANU/MH/0274/1975 : 1976 Mh.L.J. 806), has explained that the true owner is not affected by an inquiry under Section 19 of the Act because the question which has to be decided by the Authorities is a different question operating at different level. The decision of the Authority and decision of the Civil Court operates at different levels and different areas so that there is no conflict between the two.

14. Thus, in view of this legal position though the Assistant Charity Commissioner held that the suit property is the property of Trust, when adverse title is set up in the suit property by the defendants, by inheritance, as legal heirs of Kasturmal Agrawal, the original title holder, the decision of Civil Court regarding title over the suit property will prevail over the decision of Assistant Charity Commissioner. In accordance with the decision of Civil Court, necessary changes in the entries in public trust register will have to be made by Charity Commissioner under Section 26 of the Trust Act.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

First Appeal No. 2577 of 2013 and Civil Application No. 13119 of 2013

Decided On: 03.12.2018

 Shantidevi  Vs.  Seth Kasturmal Dalsukh Dharmashala and Ors.

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What is duty of court while deciding suit for declaration of title against government?

Nature of proof required in suits for declaration of title against the Government

15. Suits for declaration of title against the government, though similar to suits for declaration of title against private individuals differ significantly in some aspects. The first difference is in regard to the presumption available in favour of the government. All lands which are not the property of any person or which are not vested in a local authority, belong to the government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual. The second difference is in regard to the period for which title and/or possession have to be established by a person suing for declaration of title. Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit for title against government. This follows from Article 112 of Limitation Act, 1963 which prescribes a longer period of thirty years as limitation in regard to suits by government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire state and it is not always possible for the government to protect or safeguard its properties from encroachments. Many a time, its own officers who are expected to protect its properties and maintain proper records, either due to negligence or collusion, create entries in records to help private parties, to lay claim of ownership or possession against the government. Any loss of government property is ultimately the loss to the community. Courts owe a duty to be vigilant to ensure that public property is not converted into private property by unscrupulous elements.

16. Many civil courts deal with suits for declaration of title and injunction against government, in a casual manner, ignoring or overlooking the special features relating to government properties. Instances of such suits against government being routinely decreed, either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray revenue entries are common. Whether the government contests the suit or not, before a suit for declaration of title against a government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years. In such suits, courts cannot, ignoring the presumptions available in favour of the government, grant declaratory or injunctive decrees against the government by relying upon one of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted. A court should necessarily seek an answer to the following question, before it grants a decree declaring title against the government : whether the plaintiff has produced title deeds tracing the title for a period of more than thirty years; or whether the plaintiff has established his adverse possession to the knowledge of the government for a period of more than thirty years, so as to convert his possession into title. Incidental to that question, the court should also find out whether the plaintiff is recorded to be the owner or holder or occupant of the property in the revenue records or municipal records, for more than thirty years, and what is the nature of possession claimed by the plaintiff, if he is in possession - authorized or unauthorized; permissive; casual and occasional; furtive and clandestine; open, continuous and hostile; deemed or implied (following a title).

17. Mere temporary use or occupation without the animus to claim ownership or mere use at sufferance will not be sufficient to create any right adverse to the Government. In order to oust or defeat the title of the government, a claimant has to establish a clear title which is superior to or better than the title of the government or establish perfection of title by adverse possession for a period of more than thirty years with the knowledge of the government. To claim adverse possession, the possession of the claimant must be actual, open and visible, hostile to the owner (and therefore necessarily with the knowledge of the owner) and continued during the entire period necessary to create a bar under the law of limitation. In short, it should be adequate in continuity, publicity and in extent. Mere vague or doubtful assertions that the claimant has been in adverse possession will not be sufficient. Unexplained stray or sporadic entries for a year or for a few years will not be sufficient and should be ignored. As noticed above, many a time it is possible for a private citizen to get his name entered as the occupant of government land, with the help of collusive government servants. Only entries based on appropriate documents like grants, title deeds etc. or based upon actual verification of physical possession by an authority authorized to recognize such possession and make appropriate entries can be used against the government. By its very nature, a claim based on adverse possession requires clear and categorical pleadings and evidence, much more so, if it is against the government. Be that as it may.
IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1588-1589 of 2008

Decided On: 24.02.2010

R. Hanumaiah and Anr. Vs. Secretary to Government of Karnataka, Revenue Department and Ors.

Hon'ble Judges/Coram:
R.V. Raveendran and Swatanter Kumar, JJ.
Citation:(2010) 5 SCC 203

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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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Whether title to property is not proved?

The next objection raised by the learned counsel for the
appellant that there was no pleading for disputing identity of the
property which is under Exh.­45 to the appellant­plaintiff.  I have,
therefore,   with   the   assistance   of   learned   counsel   for   the   rival
parties perused the specific pleadings taken by Kamlabai in her
written statement.   True it is that in the pleading, there are no
specific words about the dispute as to the identity of the property
but then careful reading of the pleadings shows that the pleading

is that the property sold by Motiram did not even belong to him
but it belonged to Mahadeo after partition was effected and that
Mahadeo bequeathed the property to his granddaughter.  I think,
no party is expected to plead evidence in the written statement
and above pleading should be sufficient in the present case.   I,
therefore, do not agree with Mr. Mishra, learned counsel for the
appellant   that   there   was   total   absence   of   pleadings.     The
appellant­plaintiff, at any rate made   a   very serious mistake in
conducting the suit and the mistake is not curable.  The appellantplaintiff
  did   not   produce   before   the   Court   primary   evidence
namely; Exh.­45 the sale deed but she produced certified copy of
the registered sale deed before the Court.   There is noting on
record to show as to the whereabouts of the original documents of
sale deed or rather primary evidence.   There was no application
for leading secondary evidence for production of the certified copy
of the registered sale deed and/or for proving the same.  I do not
think that the certified copy of the registered sale deed could be
taken as admissible evidence in the absence of any explanation for
loss of primary evidence  or  after  obtaining permission  to  lead
secondary evidence.  Nothing was done.  I think, this is the defect
left by the plaintiff by not proving the sale deed.  When the sale

deed itself was not proved, the title could not be held to be proved
by the appellant­plaintiff and, therefore, the above question will
have to be answered in the negative.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO.47/2000
Smt. Leelabai wd/o Tulshiram Ingole,

V
Sau. Kamlabai w/o Motiram Budh,

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
CORAM:­ A. B. CHAUDHARI, J.
DATED :­ 23.02.2016
Citation:2016(5) ALLMR17

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Whether suit for declaration of title and possession can be decree on ground that defendant has not been able to prove his title?

It is a settled position of law that in a suit for declaration of title and possession, the onus is upon the plaintiff to prove his title. Further, not only is the onus on the plaintiff, he must prove his title independently, and a decree in his favour cannot be awarded for the only reason that the defendant has not been able to prove his title, as held by this Court in the case of Brahma Nand Puri v. Neki Puri[4] as under:

“………the plaintiff's suit being one for ejectment he has to succeed or fail on the file that he establishes and if he cannot succeed on the strength of his title his suit must fail notwithstanding that the defendant in possession has no title to the property………” The same view has been reiterated by this Court in the more recent case of R.V.E Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Anr.[5] as under:

“In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the Court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored with him. …………In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiffs title.” 

Reportable

Supreme Court of India

City Municipal Council Bhalki, ... vs Gurappa(D) By Lrs & Anr on 29 September, 2015

Bench: V. Gopala Gowda, Amitava Roy

Citation:2016(5) MHLJ 1 SC

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When suit for declaration of title is not barred by limitation?

Be that as it may, the suit filed by the Appellant is for declaration of title. Under the
provisions of the Limitation Act, specially Section 27 of the Limitation Act of 1963,
the right to immoveable properties stands prescribed as per the period provided in
the schedule of the said Act. Article 65 and 66 of the Limitation Act, 1963, provides
that title to the property is lost only by adverse possession for the specified period.
In the present case, the finding of the learned Judge that the suit for declaration of
title is barred by limitation, cannot be accepted. The cause of action to file a suit for
declaration of title is continuous and, as such, a suit can be filed as long as the title
to the property subsists. In the present case, unless and until the Respondents
establish that they have become owners by adverse possession, the findings of the
learned Judge that the suit is barred by limitation is unsustainable and deserves to
be quashed and set aside. The Apex Court in the Judgment reported in (2010) 2
S.C.C. 194 in the case of Daya Singh & anr. vs. Gurudev Singh (Dead) by LRs
& Ors., has observed at Para 18 has stated thus :
“18. In this view of the matter, we do not find
any ground to agree with the findings of the high
Court that the suit was barred by time because of its
filing after 18 years of entering into the compromise.
The question of filing the suit before the right accrued
to them by compromise could not arise until and
unless infringement of that right was noticed by one of
the parties. The High Court in the impugned
Judgment, in our view, had fallen in grave error in
holding that the suit was barred by time and had
ignored to appreciate that the rights of the appellants

to have the revenue record accrued first arose in
1990 when the appellants came to know about the
wrong entry and the respondents failed to join the
appellants in getting it corrected. In our view, the
High Court was not justified in holding that mere
existence of a wrong entry in the revenue records
does not, in law, give rise to a cause of action within
the meaning of Article 58 of the Act. No other point
was urged before us by the learned counsel for the
parties.”
Considering the ratio laid down by the Apex Court, merely entering
the name in the Survey Records by itself would not give a cause of action to the
Appellant/Plaintiff to file a suit for declaration unless his right to enjoy the property
has been infringed or at least there is a clear and unequivocal threat to infringe the
right of the Appellant/Plaintiff in the suit property. As such, the Lower Appellate
Court, was not justified to come to the conclusion that the suit for declaration was
barred by limitation taking note of the cause of action as pleaded in the plaint. The
first substantial question of law is answered accordingly.
IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO. 82 OF 2007
Pedro do Rosario Fernandes
alias Pedro Antonio Miguel

V e r s u s
 Mr. Wilfredo Xavier Jose Monteiro,

 Coram :- F. M. REIS, J
Date : 17thJanuary, 2014.
Citation: 2016(2) ALLMR844

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Whether court can grant declaration of title relying on revenue record?

 In Sajana Granites (12 supra), a Division Bench of this court made an observation that "the entries in revenue records do not confer any title." This court made such an observation having noticed that the document Ex.A11 therein is not the patta, which is the primary evidence, and is only an extract from the revenue register, it is secondary evidence on the issue relating to grant of patta. Since no record from the office of the Settlement Officer was summoned to show that the Settlement Officer examined the history of the suit property, the court refused to grant declaration of title merely basing upon Ex.A11 an extract from the Revenue Register."

Andhra High Court

Union Of India (Uoi) Represented ... vs Vasavi Cooperative Housing ... on 6 September, 2002

Equivalent citations: 2002 (5) ALD 532, 2002 (5) ALT 370

Bench: B S Reddy, G Rohini

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Whether Plaintiff in suit for declaration of title and possession can succeed if there is weakness in case of defendant?

The High Court, we notice, has taken the view that once the evidence is let in by both the parties, the question of burden of proof pales into insignificance and the evidence let in by both the parties is required to be appreciated by the court in order to record its findings in respect of each of the issues that may ultimately determine the fate of the suit. The High Court has also proceeded on the basis that initial burden would always be upon the plaintiff to establish its case but if the evidence let in by defendants in support of their case probabalises the case set up by the plaintiff, such evidence cannot be ignored and kept out of consideration.

14. At the outset, let us examine the legal position with regard to whom the burden of proof lies in a suit for declaration of title and possession. This Court in Maran Mar Basselios Catholicos v. Thukalan Paulo Avira reported in AIR1959 SC 31 observed that “in a suit for declaration if the plaintiffs are to succeed, they must do so on the strength of their own title.” In Nagar Palika, Jind v. Jagat Singh, Advocate (1995) 3 SCC 426, this Court held as under:

“the onus to prove title to the property in question was on the plaintiff. In a suit for ejectment based on title it was incumbent on the part of the court of appeal first to record a finding on the claim of title to the suit land made on behalf of the plaintiff. The court is bound to enquire or investigate that question first before going into any other question that may arise in a suit.”

15. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against, in the absence of establishment of plaintiff’s own title, plaintiff must be non-suited.

Supreme Court of India

Union Of India & Ors. vs Vasavi Co-Op. Housing Society ... on 7 January, 2014

REPORTABLE

Citation;(2014) 2 SCC 269

K.S. Radhakrishnan, J.

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