1974 Supreme(Cal) 34

HIGH COURT OF CALCUTTA
A. C. Gupta, S. C. Deb
SHRI RADHA GOBINDA JEW - Appellant
Versus
KEWALA DEVI JAISWAL - Respondent
LPA 70  Of  1973
Decided On : FEBRUARY 13, 1974

A suit for declaration of title will not be maintainable unless the plaintiff prayed for possession also.

Headnote:

DEDICATION - ACT OF ARPANNAMA - VALIDITY - DEDICATION OF PROPERTY TO DEITY - ACTING UPON DEDICATION - LIMITATION - SUIT FOR DECLARATION OF DEBUTTER PROPERTY - MAINTAINABILITY.

Fact of the Case:

The appellants filed a suit for a declaration that the premises No. 6 Bansidhar Lane, Calcutta and a property at Nabadwip are de-butter properties of the plaintiff deities and for permanent injunction restraining the respondent No. 1 from interfering with their possession of the said Calcutta property and from exercising any act of possession including the realisation of rents of the said property. The respondents contested the suit by denying all the allegations made in the plaint and on this main defence. Those two properties were not purchased out of the alleged joint family funds. Chintaharan was the sole owner of the Calcutta property whereas Krishna Kamini was the absolute owner of the Nabadwip property.

Finding of the Court:

The suit is barred by limitation under Article 58 of the Limitation Act, 1963. The appellants are out of possession of these two properties and yet they did not ask for recovery of possession in the plaint. The suit therefore does not appear to be maintainable under Section 34 of the Specific Relief Act, 1963.

Issues: 1. Whether the dedication of the property to the deity by Chintaharan was valid? 2. Whether Chintaharan acted upon the dedication? 3. Whether the suit is barred by limitation? 4. Whether the suit is maintainable?

Ratio Decidendi: 1. The Deeds of Partition and Arpannama executed by Chintaharan were found to be genuine. These two Deeds are contemporaneous documents and they should be read together. They reveal the intention of Chintaharan to dedicate the Calcutta properly to the appellant deities. And to carry out this intention he made himself the sole shebait for life and validly dedicated this property to them by executing the said Deed of Arpannama. 2. The alleged intention of Chintaharan to dedicate this property to the appellant-deities has been specifically pleaded in the plaint. It has also been pleaded that Chintaharan, Krishna Kamini, Sashimukhi and those two brothers of Chintaharan including their descendents have acted as shebaits to establish that Chintaharan had in fact divested himself of all beneficial interests in this property. The plaint also says that Krishna Kamini on the false allegation that she had installed the said deity mentioned earlier had purported to dedicate the Nabadwip property to that idol. Further pleading is that Sashimukhi had falsely and fraudulently alleged that Chritahnran had never acted upon his Deed of Arpannama. And the respondents have specifically denied all those allegations in their Written Statements. The appellants adduced no satisfactory evidence on all these allegations though the burden of proof lay heavily on them and on the other hand the respondents have shown to the satisfaction of the Appellate Courts that the names of Chintaharan, Krishna Kamini and Sashimukhi were recorded respectively as owners of this Calcutta property with the Corporation of Calcutta and Sashimukhi as its owner and in her personal capacity had realised its rents since the drath of her mother until this property was sold by her to the respondent No. 1. 3. The suit is governed by Article 58 of the Limitation Act, 1963. The appellants' "right to sue first accrued" within the meaning of this expression as used in this Article on May 29, 1964, when Sashimukhi sold the Calcutta property to the respondent No. 1 and therefore this suit was not time-barred. The appellants were not in possession of these two properties and their cause of action arose prior to the filing of that suit, if not on March 27, 1957 when Sashimukhi filed her written statement in that earlier suit, or on July 7, 1957 when the plaint in that suit was directed to be returned to them or on September 9, 1957 when they took back that plaint from the City Civil Court for filing it in a proper Court. Therefore, at the latest on September 9, 1957 the appellant's right to sue first accrued for a declaration that these two properties were debutter properties and Article 58 of the Limitation Act, 1963 directly applies to this cause of action on the principles laid down by the Supreme Court in the decisions referred to above. 4. The suit is not maintainable under Section 34 of the Specific Relief Act, 1963. The appellants are out of possession of these two properties and yet they did not ask for recovery of possession in the plaint. The suit therefore does not appear to be maintainable under Section 34 of the Specific Relief Act, 1963.

Final Decision: Appeal dismissed with costs.