The proviso to Section 34 of the Specific Relief Act, 1963 does not bar the jurisdiction of the court to entertain a suit, and a suit for injunction simpliciter will lie where the plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant.

1. This revision petition is directed against the order dated 16.08.2016 passed by the Additional District Judge No.2, Udaipur (‘the trial court’), whereby the application filed by the petitioners-defendants under Order VII, Rule 11 CPC read with Section 34 of the Specific Relief Act, 1963 (‘the Act’), has been rejected.

2. The plaintiffs filed a suit for declaration of gift-deed dated 27.05.2015 as null & void and for permanent injunction. It was, inter alia, claimed in the plaint that the gift-deed in question was executed by defendant No.6 – Pratap Singh Rathore claiming himself to be the Sanrakshak of Vanvasi Sewa Sangh in favour of Municipal Corporation, Udaipur for a piece of land admeasuring 11000 sq. feet. It was, inter alia, claimed that the Vanvasi Sewa Sangh was no more in existence as the same came to be merged with Rajasthan Sewa Sangh, which is a Society registered under the provisions of Societies Registration Act having possession and ownership of the land in question. Based on the said averments, relief was claimed that the gift-deed be declared null & void qua the rights of the plaintiffs and permanent injunction be granted that no construction be raised on the land in question. Further relief was sought regarding the status of Vanvasi Sewa Sangh and that if any construction was raised on the land in question during the pendency of the suit and/or the same is transferred to any other party, the status quo ante as on the date of suit be ordered to be restored.

3. Certain averments were made in the plaint regarding events, which took place on 24.04.2015 purportedly for celebrating the 65th Establishment Day of the defendant-Society and coming into possession and announcing gift of the land in question.

4. An application under Order VII, Rule 11 CPC was filed by the petitioners with the submissions that from averments made in paras 33, 35, 39, 41 and 42 of the plaint, it is apparent that the plaintiffs are not in possession of the land and in absence of relief for possession, simple suit for declaration does not disclose a cause of action, the same was barred by law and, therefore, the plaint was liable to be rejected.

5. A reply to the application was filed by the plaintiffs. Submissions were made that the possession, if any, was not legal and the right, title and possession have always been with the plaintiffs. Submissions were made that the plaintiffs continue to be in possession of the land in question and, therefore, the application is liable to be rejected.

6. The trial court after hearing the parties, came to be conclusion that provisions of Section 34 of the Act does not bar the jurisdiction of the Court, the cognizance of defence cannot be taken, no admission has been made that plaintiffs have been dispossessed from the land in question and, therefore, it cannot be said that the suit was barred by law and, consequently, dismissed the application.

7. It is submitted by learned counsel for the petitioners that the trial court committed grave error of law in rejecting the application. It was submitted with reference to several paragraphs in the plaint that on the date of filing of the suit, the plaintiffs were not in possession and despite that relief seeking possession was not claimed in the plaint while seeking cancellation of the gift-deed and, therefore, in view of provisions of Section 34 of the Act, the plaint was liable to be rejected. It was submitted that averments made in the plaint are unequivocal and, therefore, the same do not require any evidence in this regard and, consequently, the plaint is liable to be rejected.

8. Reliance was placed on Badiya & Ors. v. State of Rajasthan & Ors.: SBCW No.82/1999, decided on 01.06.2017; Bhairu Lal Ors. v. Sohani & Ors.: 2014 (4) DNJ (Raj.) 1554 and Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust v. Chandran & Ors.: (2017) 3 SCC 702.

9. Vehemently opposing the submissions, learned counsel for the respondents-plaintiffs submitted that the applicatio