A suit for mere declaration of ownership without seeking relief of possession is not maintainable under Section 34 of the Specific Relief Act.

JUDGMENT :

H.P. Sandesh, J.

1. Heard the learned counsel for the appellant and the learned counsel for the respondents.

2. This second appeal is filed against the concurrent finding of the Trial Court and also the First Appellate Court passed in O.S.No.100/2002 dated 17.11.2015 and R.A.No.3/2016 dated 07.08.2020 granting the relief of declaration declaring that plaintiffs are the absolute owners of the plaint ‘A’ schedule properties.

3. The factual matrix of case of plaintiffs/respondents before the Trial Court that Aithu Belchada is the father of the plaintiffs had claimed occupancy right in respect of the properties covered by Sy.No.13/32 measuring 67 cents and Sy.No.13/48 measuring 30 acres of Udyavara village, Udupi Taluk along with other properties by filing an application under section 48A(1) of the K.L.R Act and that his claim has been enquired into by the land tribunal, Udupi in LRY NO:74/361/915/917/TRI/1754/79-80 occupancy right has been granted in his name by the Land Tribunal, Udupi vide its order dated 28-09-1981 In pursuance of the order passed by the Land Tribunal, occupancy certificate in Form No.10 has also been issued in the name of aforesaid Aithu Belchada by the Spl. Tahsildar, Land reforms, Udupi on 15-11-1981. It is further case of the plaintiffs that during the life time of Aithu Belchada he had entered into a registered partition deed with his sisters on 30-10-1991. The said Aithu Belchada died intestate on 04-01-1998 leaving behind plaintiffs as his only legal heirs and it is contended that thereby the right, title and interest over the plaint ‘A’ schedule properties devolved upon them. When this is the status of the property the defendant started proclaiming in the village that deceased Aithu Belchada had bequeathed the property covered in Sy.No.13/48A, measuring 26 cents, and Sy.No.13/32 measuring 23 cents out of the properties mentioned in the plaint ‘A’ schedule properties and they also learnt from the RTC extracts that the defendant by virtue of the alleged forged Will got mutated some of the properties out of the suit properties. It is further contended that at no point of time defendant is in possession of plaint ‘A’ schedule property and there was no occasion arisen to Aithu Belchada to execute the Will in favour of the defendant, disinheriting his own legal heirs.Hence, sought for relief of declaration.

4. In pursuance of suit summons the defendant appeared and filed the written statement and denied the averments made in the plaint. It is contended that Aithu Belchada was in a sound state of mind and he had executed a Will dated 11.06.1996 voluntarily on his free will bequeathing the immovable properties bearing Sy.No.13/48B (portion) measuring 11 cents, Sy.No.13/48B (portion) 9.5 cents, Sy.No.13/48B (portion) 9.5 cetns and Sy.No.13/32 (portion) measuring 23 cents and consequent upon the death of the Aithu Belchada the said properties have devolved upon the defendant and he has been in exclusive possession and enjoyment of the same improving the said land. It is also his case that defendant has constructed a house and he became the owner in lawful possession and enjoyment of the property in view of the Will and plaintiffs have no right, title and interest over the property and they never been in possession