A suit for declaration without seeking possession is not maintainable, as established by Section 34 of the Specific Relief Act; res judicata applies based on prior rulings.

JUDGMENT :

EASWARAN S., J.

The appellant is not a party to the suit, but, however, was impleaded as additional 3^rd appellant before the Lower Appellate Court pursuant to the orders passed by this Court in FAO No.319 of 2012 and O.P.(C) No.3176 of 2012 dated 01.07.2019.

2. The brief facts necessary for the disposal of the appeal are as follows:-

The 1^st respondent in A.S No.297/2006 on Additional District Court-IV, Kottayam, filed a suit for declaration of title and injunction. According to the 1^st respondent (in A.S No.297/2006)/ plaintiff the plaint schedule property originally belongs to her by virtue of a gift deed No.2177/1979 of her deceased husband. The 2^nd defendant is the daughter of the plaintiff and the 1st defendant is the husband of the 2^nd defendant. The 2^nd defendant had misled the plaintiff and in the guise of execution of a mortgaged deed for an amount of Rs.50,000/-, got a sale deed executed in favour of her husband. According to the plaintiff, the sale deed dated 25.11.2000(Ext.A4) is vitiated as she was not made aware of the exact nature of the document. In short, a case of misrepresentation of the character of the document is projected. In support of her claim Exts.A1 to A4 were produced and PW1 and PW2 were examined. PW1 being the plaintiff herself and PW2 is her son. The defendants 1 and 2 contested the suit and according to the defendants, the present suit for declaration of title and injunction is not maintainable, since, between the plaintiff and her son Jerard were defendants in O.S No.210/2002 filed before the Munsiff Court, Ettumanoor, and by the judgment and decree dated 07.03.2003, both the plaintiff and her son were injuncted from obstructing the defendants’ possession over the plaint schedule property. DW1 was examined and Exts.B1 to B5 were marked, on behalf of the defendants and Ext.C1, C1(a) and C1(b) were marked as court exhibits. On the basis of the rival pleadings, the trial court framed the following issues:-

1. Whether the sale deed No.4792/00 is liable to be declared as void?

2. Whether the declaration sought for is allowable?

3 Whether the injunction sought for is allowable?

4. Reliefs and costs.

3. On appreciation of the oral and documentary evidence, the trial court came into conclusion that the case projected by the plaintiff as regards the misrepresentation of the character of the document was established. Therefore, the trial court proceeded to decree the suit, declaring the plaintiff’s title over the plaint schedule property and restraining the defendants from trespassing into the plaint schedule property. The original defendants filed an appeal against the judgment and decree of the trial court as A.S No.297/2006 on the files of the Additional District Court-IV, Kottayam. During the pendency of the appeal, on 18.04.2007, the defendants 1 and 2 / appellants in A.S No.297/2006 before the First Appellate Court, transferred the right title and interest over the plaint schedule property in favour of the appellant herein. On 07.11.2009, the appeal was dismissed for default. The appellant herein filed an application for restoration and impleading as an additional 3^rd appellant, which was dismissed by the First Appellate Court. As against the dismissal of the application for impleading, O.P.(C) No.3176/2012 was filed and as against the order refusing to restore the appeal FAO No.319/2012 was filed. This Court by judgment dated 01.07.2019, set aside the orders passed by the First Appellate Court and impleaded the appellant as the 3^rd additional appellant in A.S No.297/2006 and directed the District Court to re-admit the appeal and dispose of the same in a