1997 Supreme(Guj) 190

Gujarat High Court
Judgename :J.M.Panchal
NAVALRAM LAXMIDAS DEVMURARI - Appellant
Versus
VIJAYABEN JAYVANTBHAI CHAVDA - Respondent
C.A. 137 of 1985
Decided On : 04/10/1997

Headnote:(a) Specific Relief Act, 1963 - Sec. 34 - Declaration - Relief of - Not admissible where plaintiff able to seek further relief omits to claim.Section 34 provides that a plaintiff may seek a declaration that he is entitled to any legal character or to any right to any property if defendant denies or is interested in denying his title to such character or right. However, the proviso to this section further lays down that Court can refuse such a declaration where the plaintiff fails to ask for further relief which is available to him. The object of this section is obviously to provide a perpetual bulwark against adverse attacks on the title of the plaintiff where a cloud is cast upon it, and to prevent further litigation by removing existing cause of controversy. The object of the proviso is to avoid a multiplicity of suits and to prevent a person getting a declaration of right in one suit and immediately after, seeking further relief, already available, in another. The further relief mentioned in the proviso has reference to same relief to which the plaintiff will be necessarily entitled on the basis of title declared. The words further relief mean a relief flowing directly and necessarily from the declaration sought a relief appropriate to and necessarily, consequent on the right and title asserted.[Para 9](b) Specific Relief Act, 1963 - Sec. 41(h) - Injunction - Grant of - Scope - Stated.A remedy by injunction, though useful, is at the same time a strong remedy and one not ordinarily granted when any other remedy is fairly open to the applicant. The rule is well established that where a payment of money would, in effect, amount to a substantial. performance of a contract or reparation for the injury suffered by the plaintiff for a wrong done by the defendant, the plaintiff must content himself with it. To bar the right of relief by injunction, the remedy must be plain and adequate; or in other words, as practical and efficacious for the ends of justice, and as prompt in administration, as the remedy by specific performance or issue of injunction.[Para 9](c) Evidence Act, 1872 - Sec. 110 - Possession follows the title - Presumption of - Applicability - Plaintiff proves his title but not any act of possession - Defendant proves unnoticed user of a small portion of land - Presumption is attracted.An owner of an open land is ordinarily presumed to be in possession of it and this presumption becomes strong in his favour when the defendant fails to establish the ground on which he claims to have come in possession. The presumption that possession goes with the title is not limited to particular kind of cases where proof of actual possession is impossible on account of nature of the land, such as boundary land, forest land or submerged land. The presumption applies to all kinds of lands. Where plaintiff proves his title, but not any act of possession and the defendant does not prove possession except unnoticed user of small part of land, the presumption that possession follows title will come into play.[Para 11](d) Civil Procedure Code, 1908 - Sec. 100 - Second Appeal - Scope of - Stated.The Supreme Court time out of number has ruled that it is not for the High Court to reappreciate the evidence while hearing Second Appeal and to substitute findings recorded by the first Appellate Court. It is not open to High Court to set aside findings of fact of first Appellate Court and come to different conclusion on reappraisal of evidence. The fact finding Courts have not acted on any assumption not supported by evidence. No question of law much less substantial question of law is involved in the case could be said to be questions of appreciation of evidence. Under Sec. 100 of CPC High Court has jurisdiction to interfere only when a substantial question of law is involved which is misinterpreted by fact finding Courts. As reappreciation of evidence and interference with findings of fact of the original Court and first Appellate Court is not open, concurrent findings that the respondent is in possession of the open land cannot be interfered with in the present appeal, more particularly when it is found that the said finding is based on proper appreciation of evidence.[Para 17]