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High Court Of Calcutta
Monjula Bose
GHULAM MOHIUDDIN - Appellant
Versus
OFFICIAL ASSIGNEE - Respondent
Suit 247 Of 1971
Decided On : 03/27/1978
SPECIFIC RELIEF ACT, 1963 - SECTION 34 - SUIT FOR DECLARATION - JURISDICTION - LIMITATION - COURT'S JURISDICTION TO ENTERTAIN SUIT FOR LAND SITUATED OUTSIDE ITS JURISDICTION - COURT'S DISCRETION TO GRANT DECLARATORY DECREE - APPLICABILITY OF LIMITATION ACT, 1963, ARTICLE 113.
Fact of the Case:
Plaintiffs sought declarations that a lease, tenancy agreement, and tenancy were null and void, inoperative, and not binding on them. The defendants, who entered appearance and filed written statements, contended that the suit was not maintainable as the plaintiffs had refrained from claiming any other relief apart from the declarations sought, that the suit was a suit for land situated outside the court's jurisdiction, and that the suit was barred by limitation.
Finding of the Court:
The court held that the suit was a suit for land within the meaning of Clause 12 of the Letters Patent and that the court had no jurisdiction to entertain the suit as the land was situated outside the local limits of the Original Jurisdiction of the court. The court also held that the suit was not maintainable under Section 34 of the Specific Relief Act, 1963, as the plaintiffs had refrained from claiming any further relief other than a mere declaration of title and that the suit was barred by limitation under Article 113 of the Limitation Act, 1963.
Issues: 1. Whether the suit is a suit for land within the meaning of Clause 12 of the Letters Patent? 2. Whether the court has jurisdiction to entertain the suit? 3. Whether the suit is maintainable under Section 34 of the Specific Relief Act, 1963? 4. Whether the suit is barred by limitation?
Ratio Decidendi: 1. The court relied on the decision in Moolji Jatha and Co. v. Khandesh Spinning and Weaving Mills Co. Ltd. (AIR 1950 FC 83) to hold that suits for land include suits involving disputes as to title and/or inviting a decision on title to land. 2. The court held that the primary object of the suit was to assert the plaintiffs' title to the land and that the suit was therefore a suit for land. The court also held that the suit was not maintainable under Section 34 of the Specific Relief Act, 1963, as the plaintiffs had refrained from claiming any further relief other than a mere declaration of title. 3. The court held that the suit was barred by limitation under Article 113 of the Limitation Act, 1963, as the right to sue accrued to the plaintiffs on the date when the decree and sale of the premises in favor of the defendant were set aside and the defendants admittedly being in possession did not vacate the premises after receipt of the demand letter.
Final Decision: The court dismissed the suit.
( 1 ) THE claim in this suit is for respective declarations that the lease dated June 23, 1964, the agreement of tenancy dated May 1, 1964 and the tenancy referred to in para 20 (c) of the plaint are null and void, inoperative and not binding on the plaintiffs. The admitted facts are inter alia that in Sept. 1962, the plaintiffs Nos. 1 and 2 alone with one Golam Rasul (since deceased) jointly purchased premises No. 2 Chingrihat'. a Lane, Calcutta at an auction sale bv the Official Assignee, the defendant No. 1, held in execution of a mortgage decree passed against the then owner one Khaja Shamsuddin. The plaintiffs Nos. 3 and 4 are the heirs and legal representatives of the deceased Golam Rasul one of the joint purchasers. Subsequent to the said purchase certain facts came to light, namely that in a suit for dower being suit No. 1172 of 1958 filed by one Jamela Begum the defendant No. 2, the said Shamsuddin allowed an ex parte decree to be suffered against himself and in execution of the said decree, the said premises was caused to be attached and purchased by the decree-holder, the defendant No. 2 abovenamed. On May 10, 1963, the plaintiffs Nos. 1 and 2 and the said Golam Rasul the auction purchasers caused a suit being suit No. 833 of 1963 to be instituted against the defendants Nos. 1 and 2 inter alia for declarations that the said ex parte decree passed in favour of the defendant No. 2 was null and void, and that the sale in purported execution of the decree was also null and void, and for other reliefs. On Sept. 1, 1'967, the defendant No. 2 consented to a decree being passed in the said suit No. 833 of 1963, setting aside the sale in her favour. Subsequently however the plaintiffs came to know further that the defendant No. 2 had during the pendency of the said suit No. 833 of 1963 purported to create a lease in favour of J. D. Norton and Sons Ltd. the defendant No. 3 and purported tenancies in favour of A. K. Products and Bengal Rubber Manufacturing Co. the defendants Nos. 4 and 5 abovenamed in respect of the said premises 2, Chingrihatta Lane, Calcutta. It is these tenancy agreements and the lease which are sought to be challenged in this suit. Only the defendants Nos. 3 and 4 have entered appearance and filed written statements in this suit.
( 2 ) ON an application by the plaintiffs the plaint was allowed to be amended and it was inter alia pleaded further that no part of the plaintiffs' claim was barred by limitation.
( 3 ) THE parties went to trial on the following issues settled, and by consent refrained from raising any other issue end in particular any issue of fact, which were expressly left open to agitate in future proceedings, if any. 1 (a) Is the suit a suit for land as alleged by the defendants Nos. 3 and 4. ? (b) If so, has this Court jurisdiction to receive, try and determine this suit? 2. Is the suit maintainable under the provisions of the Specific Relief Act 1963? 3. Is the suit barred by limitation ?
( 4 ) TO what relief, if any are the plaintiffs entitled? 4. By further consent the Judge's Brief of documents and correspondence in three parts were tendered as Ext. 'a'; an admitted list of dates as Ext. 'b' and an order dated the 14th Jan. 1965 as Ext. 'c'. No oral evidence was adduced.
( 5 ) MRS. Chowcharia learned Advocate for the defendant No. 3 contended that the present suit is not maintainable in-asmuch as the plaintiffs have refrained from claiming any other relief and even consequential reliefs, apart from the declarations sought. Under Section 34 of the Specific Relief Act 1963 the Court was enjoined not to make any declaration where the plaintiff being able to seek a further relief other than a mere declaration of title omits to do so. In the facts of the case she argues the further reliefs of cancellation and/or delivering up of the documents challenged and of possession, were available to the plaintiffs as admittedly the defendants have been in possession of the suit pr
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