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Karnataka High Court
Judges : N.KUMAR
ARALAPPA - Appellant
Versus
JAGANNATH - Respondent
C/W RFA 118 Of 1989
Decided On : 08/24/2006
Advocates Appeared :
D.R.Sundaresha, G.S.VISHVESHVARA, M.R.VIJAYARAGHAVAN, M.V.RAGHUNATHACHAR, S.V.RAGHAVACHAR, V.SREENIDHI
Cases Referred: AIR 1956 SC 866; AIR 1966 SC 432; (1996) 6 SCC 373; AIR 1934 Madras 204; AIR 1972 SC 2685; ILR 1980 KAR 103.
Specific Relief Act, 1963 - Section 34-Declaration of ownership and permanent injunction - Title and possession - Burden of proof - Plaintiff has to prove his title to property, but also his possession over property on date of suit - Relief of permanent injunction is not an appropriate consequential relief - Appropriate relief consequential to declaration of ownership would be recovery of possession of property - When plaintiff is out of possession of property and does not seek relief for possession, a mere suit for declaration is not maintainable. [N. Kumar, J.]: The reason is not far to seek. It is well settled that no Court would grant any relief which is not useful, or futile and not effective. If title of the plaintiff is to be declared and he is not in possession and possession is with the defendant or some other person, the plaintiff would be having title of the property and the person in possession would be having possessory title to the property. It would lead to anomalous situation and create confusion in the public, which is to be avoided. 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.
Cases Referred: AIR 1956 SC 866; AIR 1966 SC 432; (1996) 6 SCC 373; AIR 1934 Madras 204; AIR 1972 SC 2685; ILR 1980 KAR 103.
Specific Relief Act, 1963 - Section 34 - Object of - Stated. [N. Kumar, J.]: The object of the section is to perpetuate and strengthen testimony regarding title and protect it from adverse attacks and to prevent future litigation by removing existing cause of controversy. The policy of the legislature is not only to secure to a wronged party possession of the property taken away from him but also to see that he is allowed to enjoy that property peacefully. The proviso to the said Section shows the care that has been taken by the legislature to avoid multiplicity of suits and to prevent a person getting the declaration of right in one suit and immediately after the remedy already available in the other. This is clear from the proviso of the Section. The proviso lays down that no Court shall make such declaration where the plaintiff being able to seek further relief than mere declaration of title omits to do so. The object of this proviso is to avoid multiplicity of the suits. Where the plaintiff is entitled to some consequential relief, directly flowing from the right or title of which he seeks declaration in the suit, he must seek declaration in the first instance and a consequential relief in the same suit and not by two separate suits. This provision is mandatory and enjoins the Court not to pass a declaratory decree where the plaintiff omits to seek further relief to which he is entitled to, as a natural consequence of the declaration. That is where the judicial discretion counts. It would be a case of proper exercise of judicial discretion, to refuse to grant a declaration sought for, even if the plaintiff establishes his title but he is not in possession, on the date of the suit and do not seek the relief of possession.
Cases Referred: AIR 1956 SC 866; AIR 1966 SC 432; (1996) 6 SCC 373; AIR 1934 Madras 204; AIR 1972 SC 2685; ILR 1980 KAR 103.
( 1 ) THESE two appeals arise out of a common judgment but two decrees, passed by the 10th Additional City Civil Judge, Bangalore city in O. S. No. 10260/80 and O. S. No. 10261/80 after a common trial. Therefore, they are taken up for consideration together and are disposed of by this common judgment. For the purpose of convenience, the parties are refenred to as they are referred to in the original Suit.
( 2 ) O. S. NO. 10260/80 was filed by Arokyaswamy, the plaintiff, against the defendant Jagannath for the relief of declaration, that he is the absolute owner and in possession of the plaint schedule property, for permanent injunction and for other consequential reliefs. Similarly, o. S. No. 10261/80 is filed by Aralappa, the plaintiff against the very same Jagannath, the defendant far the same relief. The suit schedule property in these two suits is two different bits of land in the same survey number.
( 3 ) THE land bearing Sy. No. 47/2 of Nagawara Village, Kasaba hobli, Bangalore North Taluk, measuring 35 guntas each is the subject matter of both the suits. However, each one of them are claiming different portions is the said Sy. No. The case of the plaintiff in both the suits is that their father Chowrappa acquired Sy. No. 47/2 of nagawara Village, Kasaba Hobli, Bangalore North Taluk under a registered sale deed dated 25. 4. 1960. It is his self acquired property. The said Chowrappa had three sons, including these two plaintiffs and they constituted a joint family. Under a registered Partition dated 20. 12. 1971, they effected partition of the joint family properties and the plaint schedule property measuring 35 guntas has fallen to the share of each of these plaintiffs. Though the partition took place in the year 1971, the revenue records continue in the name of their father. Ever since the date of partition, the plaintiffs are in possession and enjoyment of the suit schedule property. They are the absolute owners. They have raised crops like Ragi, Avare etc. , and on the date of the suit, there was standing crops. The defendant who is an utter stranger to the property, on the morning of 16th November 1980 came near the land and attempted to interfere with the peaceful possession and enjoyment of the suit schedule property and also attempted to cut and remove the crop standing on the suit schedule property. But plaintiffs resisted the same. He asserted his title to the schedule property and proclaimed that he would remove the crop and dispossess the plaintiffs. As the defendant denied the title of the plaintiffs, they were constrained to file two separate suits for the aforesaid reliefs.
( 4 ) SUBSEQUENTLY, the plaint was amended after noticing the plea of the defendant in the written statement. Paragraph 7 (a) to 7 (d)were added to the original plaint. In the said amendment it was alleged that thejudgment and decree dated 10. 4. 1980 passed in O. S. No. 224/1978 on the file of the Additional Civil Judge, Bangalore Rural district has been obtained by the defendant and others by fraud and the same is not binding on the plaintiffs. Neither the plaintiffs nor their father was aware of the said suit, nor they have received any notice of the said suit. Without prejudice to the said contention, it was alleged that the plaintiffs got right to the suit schedule property as long back as in the year 1971 under the partition deed and therefore, defendant ought to have made them as parties in the aforesaid suit. Though the defendant was fully aware of the said fact, deliberately the plaintiffs were not made parties and a decree was obtained by suppressing the true facts and therefore the said decree is not binding on them. In view of the stand taken by the defendant in the written statement that they have taken possession of the suit schedule property in Execution no. 137/1980 on 19. 9. 1980, it was alleged that the said delivery receipt and other documents connected therewith have been got up by the defendant in col
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