A suit for possession implies a declaration of title, and the plaintiff should be given an opportunity to prove ownership.

YOGESH KHANNA, J.

I.A. No. 9426/2017

1. This application is moved on behalf of defendant nos. 1, 3, 4 and 5 under Order 7 Rule 11 Civil Procedure Code (herein after referred as ‘CPC’) seeking rejection of plaint.

2. The main plea taken by the defendants is the plaintiff has filed a suit for possession for 2584 square yards approximately falling in Khasra No. 1/127, Chauhan Bangar, Delhi- 110053 (hereinafter referred as the ‘suit property’) and despite the defendants having raised an objection qua the ownership of the plaintiffs in the subject property prior to filling suit, the plaintiffs ought to have filed a suit for declaration declaring them to be the owners of the subject property rather than filing this suit for possession and injuction. It is submitted the plaintiff had filed a suit in District Courts against the defendants claiming to be the legally wedded wife of late Shri Shyam Sunder Goyal and prayed for opening of a locker. The locker was operated and inventory of the documents lying therein was prepared. As per the said inventory, the ownership documents of late Shri Shyam Sunder Goyal, to the extent of 1345 square yards only, were found available and the plaintiffs never filed any such documents of ownership of such 2584 square yards of the subject property and that in any case, the inventory speaks about the ownership of 1450 square yards only in the subject property and hence without seeking declaration qua the ownership of the premises, the suit is not maintainable. The learned counsel for the applicants have relied upon Section 34 of the Specific Relief Act which is as follows:

“34. Discretion of court as to declaration of status or right - Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

PROVIDED that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Explanation: A trustee of property is a "person interested to deny "a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee.”

3. The learned counsel for the defendants relied upon Anathula Sudhakar vs. P. Buchi Reddy (dead) by L.Rs. and Others, AIR 2008 SC 2033 wherein the Supreme Court held:-

“17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:

(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.”

Hence it is argued that since the defendants have raised a cloud over the title of the plaintiff, the plaintiff ought to have filed a suit for declaration of his title too.

4. The learned senior counsel for the plaintiff referred to the amended plaint to reveal facts stated therein viz. late Shri Shyam Sunder Goyal was an erstwhile owner of the suit property i.e. the entire area comprised of built up premises having residential houses, offices and shops etc. The plaintiff no. 1 being the widow of late Shri Shyam Sunder Goyal and plaintiff No. 2 being his son now are the owners of subject property. The details of the land (subject property) purchased during the lifetime of late Shri Shyam Sunder Goyal is duly mentioned in the plaint and it is alleged whatever documents were available with the petitioner at the time of filing