A suit for declaration may be maintainable even if the plaintiff does not seek recovery of possession, if the plaintiff claims to be in possession of the subject matter of the suit pursuant to an agreement to sell.

Janak Raj Kotwal, J.

This Revision Petition by defendant is directed against order dated 17.10.2015 of the learned City Judge, Jammu, whereby preliminary issue No. 1 framed in the suit has been decided against the defendant and decision in preliminary issue No. 2 has been deferred holding that it involves mixed question of law and fact.

2. Heard learned counsel for the parties.

3. Respondent (plaintiff) has filed suit seeking declaration that sale deed dated 05.02.1994. executed by one Puran Chand in regard to land measuring 02 kanal comprised in Khasra No. 631/609 in favour of the petitioner (defendant) is illegal and null and void and consequential relier of permanent prohibitory injunction restraining petitioner from interfering with respondent's possession of 01 kanal of the land covered under the said sale deed.

4. Respondent's case, precisely, is that aforementioned land was earlier purchased by him and the petitioner jointly from said Puran Chand under an agreement to sell for a consideration of Rs. 5000/- in the year 1993. Parchased price was paid by both of them in equally shares and since then they are in possession of 01 kanal of land each. The petitioner, however, in the year 1994 got the sale deed executed in his favour to the exclusion of the respondent even though he continues in possession of 01 kanal of the land by virtue of the agreement to sell. Petitioner in his written statement has denied the purchase of the land in equally shares by virtue of the agreement to sell in the year, 1993 and has contended that land has been purchased by him by virtue of the sale deed executed on 5.2.1994. issue No. 1 framed by the learned trial Court reads:

"Whether the suit is not maintainable in view of section 54 of Transfer of Property Act and Sections 42 and 56 of Specific Relief Act".

5. Learned counsel for the petitioner submitted vehemently that suit is not maintainable for the reason that the respondent (plaintiff), being out of possession, has not sought restoration of possession so suit for declaration simpliciter does not lie. Learned counsel argued that the trial court had vide order dated 31.12.2010 issued temporary injunction directing the parties to maintain status quo with respect to the suit property, that is, 01 kanal of the land claimed by the respondent. The order dated 31.12.2010, however, was set aside by the appellate Court vide judgment dated 11.05.2013 in file No. 67/Appeal. The judgment passed by the appellate Court was upheld by this court in a petition under section 104 filed by the respondent (plaintiff) vide judgment dated 04.07.2014. Learned counsel for petitioner emphasized that contention of respondent that he was in possession of 01 kanal of the land did not find favour by the appellate court, which shows that he is out of possession of the suit land and therefore, suit for declaration simpliciter without seeking recovery of possession is not maintainable.

6. Per contra, learned counsel for respondent (plaintiff) argued that plaintiff is in possession of the suit land pursuant to the agreement to sell so there is no necessity of seeking recovery of possession.

7. Following paragraph of the judgment dated 11.05.2013 rendered by the learned appellate court was read out to this Court by the learned counsel for the petitioner:

"Thus, the claims of the respondent to be in possession of one kanal of land towards eastern side are farfetched against the specific case of appellant to be lawfully acquired the same more than 20 years back. There is nothing on record to substantiate the claim of the appellant having been in possession of one kanal of land towards eastern side except the agreement to sell which does not describe the land sought to be purchased there under vis-a-vis the sixty four kanals of the total land under the survey number."

8. It is noticed also that learned appellate court has stated in the judgment that "Any observations, about the merits, of the claims/ counter-claims of the parties