The main legal point established in the judgment is that a suit for declaration of ownership in possession, which includes consequential relief, may not be liable to be rejected under Order 7 Rule 11 (d) CPC, even if the plaintiffs have omitted to seek further relief other than mere declaration of title.

JUDGMENT :

Vivek Singh Thakur, J.

Instant petition has been preferred, invoking provisions of Article 227 of Constitution of India, for setting aside order dated 11.11.2019, passed by Additional District Judge, Solan, whereby application filed by the petitioners-defendants under Order 7 Rule 11 (d) of Code of Civil Procedure (in short ‘CPC’) has been rejected.

2. Main ground to make prayer for rejecting the plaint is that respondents-plaintiffs have never had possession of the suit property and, therefore, prayer to declare them owner in possession is devoid of merit and petitioners-defendants have preferred a suit for declaration only but without consequential relief seeking possession of the suit property and, therefore, suit is barred by provisions of Section 34 of the Specific Relief Act, 1963 (hereinafter referred to as the ‘Act’) and thus the plaint is liable to be rejected under Order 7 Rule 11 (d) CPC.

3. Plea of respondents-plaintiffs is that averments made in the application, filed for rejecting the plaint, are to be adjudicated and decided on merit in main suit and, thus, application is not maintainable at this stage. It has been claimed that respondents-plaintiffs have been visiting their grandfather’s property during life time of their grandfather as well as thereafter and, therefore, it is never admitted by the respondents-plaintiffs that they were or are not in possession of the property, rather they have claimed their possession and, thus have prayed for declaration of ownership in possession.

4. Learned counsel for the petitioners-defendants to substantiate his plea for rejecting plaint has placed reliance upon Deo Kuer and another vs. Sheo Prasad Singh and others, AIR 1966 SC 359; Ram Saran and another vs. Smt. Ganga Dvi, (1973) 2 SCC 60; Vinay Krishna vs. Keshav Chandra and another, 1993 Supp (3) SCC 129; Sadasivam vs. K. Doraisamy, (1996) 8 SCC 624; Gain Kaur vs. Raghubir Singh, (2011) 4 SCC 567; and Union of India vs. Ibrahim Uddin and another, (2012) 8 SCC 148.

5. Learned counsel for the respondents-plaintiffs has placed reliance upon judgments of the Supreme Court in Deo Kuer’s and Sadasivam’s cases as well as this High Court in Gian Chand vs. Om Prakash, 2016 SCC Online HP 364 (RSA No.29 of 2005) and judgment of Madhya Pradesh High Court in Mukund vs. Smt. Sulekshna, in F.A. No. 678 of 2000, decided on 05.11.2015.

6. I have heard learned counsel for the parties and have gone through the record as well as case law referred by the parties.

7. Section 34 of the Act reads as under:-

“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.”

8. Prayer made in Civil Suit is as under:-

“Prayer clause:

It is, therefore, respectfully prayed that a decree of declaration may kindly be passed in favour of the plaintiffs and against the defendants declaring that

(a) Will dated 1-07-1994 is legal and valid document and is binding on party to suit.

(b) declaring that plaintiffs are owner in possession of Khasra number 284 & 283 measuring 476 sq. meters in mauza Ser Solan, Tehsil and District Solan.

(c) declaring the deed of rust dated 2-07-1994 registered with Sub Registrar Solan vide document no. 137 is wrong, illegal, null and void and is not binding upon the right, title and interest of the plaintiffs.

(d) declaring that mutation no. 1198 and 17-11-1994 sanctioned in favour of defendant no.2 is wrong, illegal, null and void and is not binding upon the right title or interest of the plaintiffs and the revenue entries carry forward t