IMPORTANT POINT
Suit filed by plaintiff for a mere declaration without relief of recovery of possession is not maintainable.

Headnote:Specific Reliefs Act, 1963 – Sections 34 and 42 – Suit for declaration and mandatory injunction – Plaintiff, who was not in possession, had claimed only declaratory relief along with mandatory injunction – Plaintiff being out of possession, relief of recovery of possession was a further relief which ought to have been claimed by plaintiff – Suit filed by plaintiff for a mere declaration without relief of recovery of possession was clearly not maintainable being hit by Section 42 and trial court rightly dismissed suit – High Court in exercise of its jurisdiction under Section 100 C.P.C. could not have reversed decree of courts below without holding that reasoning given by courts below was legally unsustainable – High Court committed error in decreeing suit – Decree of the High Court is also contradictory – High Court has affirmed findings that Defendant No. 1 is owner of property whereas, by decreeing suit for declaration and mandatory injunction name of Defendant No. 1 is to be removed and replaced by plaintiff which is clearly erroneous and unsustainable – Judgment of High Court set aside and those of trial court and First Appellate Court restored. (Paras 35 to 38)
       Facts of Case:
       Respondent-Plaintiff had filed Original Suit for relief of declaration and mandatory injunction. defendant has filed this appeal against judgment of the Madurai Bench of Madras High Court dated 22.01.2013, by which judgment the High Court while reversing the judgment of trial court and First Appellate Court, has decreed the suit of the plaintiff.
       Findings of Court:
       Judgment of High Court cannot be sustained. High Court committed error in reversing judgments of trial court and First Appellate Court. In result, appeal is allowed and judgment of High Court is set aside and those of trial court and First Appellate Court restored.
       Result : Appeal allowed.

JUDGMENT

Ashok Bhushan, J.

Leave granted.

2. The defendant has filed this appeal against judgment of the Madurai Bench of Madras High Court dated 22.01.2013, by which judgment the High Court while reversing the judgment of trial court and First Appellate Court, has decreed the suit of the plaintiff.

3. The brief facts of the case are:

The Respondent No. 1, who shall be hereinafter referred to as plaintiff, filed Original Suit No. 33 of 2008 for the relief of declaration and mandatory injunction. Plaintiff's case in the plaint was that by Sale Deed dated 04.11.2007, he has purchased an area of 2 acres and 73 cents being part of Survey No. 188. The entire Plot No. 188 (area 7 acres and 84 cents) is recorded in the name of Defendant No. 1. Mandatory injunction was prayed to be issued, directing the Defendant Nos. 4 and 5 to correct the revenue records by entering the name of plaintiff in the suit property. The plaintiff's case was that the suit property belonged to one R. Padmanabhan who vide Sale Deed dated 28th August, 1992 on his behalf and on behalf of his minor sons transferred 2 acres 72 cents area being part of Survey No. 188 in favour of one Sanjay Ramasamy, correspondent of Annai Velankanni Women Teacher Training School. Sanjay Ramasamy executed a General Power of Attorney in favour of one Bhaskaran on 31.10.2007 and it was Bhaskaran who executed the Sale Deed dated 04.11.2007 in favour of the plaintiff. Plaintiff, further stated that when he went to Revenue Tehsildar for issuance of patta in his favour, he came to know that it is in the name of first Defendant. Consequently, the suit was filed, seeking declaration and mandatory injunction.

4. A written statement was filed by the first Defendant, controverting the plaint allegation. It was pleaded that plaintiff or his predecessors in interest were never the owner of the suit property. The Defendant No. 1, hereinafter referred to as Temple, has been the owner in possession of the suit property whose name is also recorded in the revenue records. It was pleaded that there is no such Survey No. as 188 in the whole village. The only available Survey Nos. as per the revenue records are 188/1, 188/2 and 188/3. The first Defendant is entitled to the Survey No. 188/1 and 188/3, which are in possession and continuous enjoyment of Temple from the time immemorial. The property register of the Temple, which is maintained by Special Tehsildar, Hindu Religious & Charitable Endowment Department, records the Temple as the owner of the property. Survey No. 188/2 is in the possession and enjoyment of one Janaki Ammal, who being not a party, the suit is not maintainable and it is bad for misjoinder and non-joinder of necessary party. The defendants numbers 2 to 4 have adopted the written statement of defendant No.1.

5. Plaintiff, initially in the plaint, had claimed for the reliefs of declaration and mandatory injunction for an area 2 ares 73 cents as part of Survey No. 188. Subsequently, the plaint was got amended by the plaintiff, mentioning the suit property as Survey No. 188/3. The Plaintiff in support of his case filed documentary as well as oral evidences of PW 1 to PW 5. The Defendant in support of his case has also filed documentary as well as oral evidences of DW 1, Senior Accountant in defendant's temple.

6. Trial court framed the following five issues:

"1. Whether the plaintiff is entitled for the relief of declaration as prayed for?

2. Whether the plaintiff is entitled for mandatory injunction as prayed for?”

3. Whether the suit is bad for non joinder of necessary party?

4. To any other relief?

Additional issue framed on 17.08.2010:

1. Whether this suit is maintainable?”

7. Trial court, while answering the issue No. 1 to 4 and additional issue No. 1 held that Survey No. 188 further has been subdivided into Survey No. 188/1, 188/2 and 188/3. The trial court further held that there is no explanation submitted by the plaintiff that how he has got amended the Survey No. 188/3 in the original suit

Click Here to Read the rest of this document

2017 Supreme(SC) 129

SUPREME COURT OF INDIARANJAN GOGOI, ASHOK BHUSHAN, JJ.EXECUTIVE OFFICER, ARULMIGU CHOKKANATHA SWAMY KOIL TRUST VIRUDHUNAGAR – APPELLANTVERSUSCHANDRAN & ORS – RESPONDENTSCIVIL APPEAL NO.2342 OF 2017 ARISING OUT OF SLP(C) NO. 21587 OF 2014Decided On : 10-02-2017

IMPORTANT POINTSuit filed by plaintiff for a mere declaration without relief of recovery of possession is not maintainable.

Cases Referred (1)

SUPREME COURT OF INDIA
RANJAN GOGOI, ASHOK BHUSHAN, JJ.
EXECUTIVE OFFICER, ARULMIGU CHOKKANATHA SWAMY KOIL TRUST VIRUDHUNAGAR – APPELLANT
VERSUS
CHANDRAN & ORS – RESPONDENTS
CIVIL APPEAL NO.2342 OF 2017 ARISING OUT OF SLP(C) NO. 21587 OF 2014
Decided On : 10-02-2017

IMPORTANT POINT
Suit filed by plaintiff for a mere declaration without relief of recovery of possession is not maintainable.