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High Court Of Orissa
B. N. DASH
DULANA DEI ALIAS DOLENA DEI - Appellant
Versus
BALARAM SAHU - Respondent
S. A. 99 Of 1986
Decided On : 07/28/1992
SPECIFIC RELIEF ACT, 1963 - SECTION 34 - DECLARATORY SUIT - MAINTAINABILITY - FURTHER RELIEF - OMISSION TO ASK FOR - CONSEQUENCES - REMAND - OPPORTUNITY TO AMEND PLAINT.
Fact of the Case:
Plaintiff filed a suit for declaration of her right, title, and interest over the suit land. The trial court decreed the suit, but the appellate court reversed the decision and dismissed the suit. The plaintiff appealed to the High Court.
Finding of the Court:
The High Court held that the suit was not barred by limitation, that title to the suit land had passed to the plaintiff's mother on the date of execution of the registered sale deed, and that the suit was hit by Section 34 of the Specific Relief Act, 1963, as the plaintiff was able to ask for further relief but omitted to do so. However, the High Court also held that the matter should be remanded to the trial court to afford the plaintiff an opportunity to amend the plaint to include the prayer for consequential relief.
Issues: 1. Whether the suit was barred by limitation? 2. Whether title to the suit land had passed to the plaintiff's mother? 3. Whether the suit was hit by Section 34 of the Specific Relief Act, 1963? 4. Whether the matter should be remanded to the trial court to afford the plaintiff an opportunity to amend the plaint?
Ratio Decidendi: 1. The suit was not barred by limitation as it was filed within three years from the date of execution of the registered sale deed in favor of the defendants. 2. Title to the suit land had passed to the plaintiff's mother on the date of execution of the registered sale deed, as the recital in the sale deed admitted of no doubt that the defendants intended to transfer the title in favor of the vendee on the very date of execution. 3. The suit was hit by Section 34 of the Specific Relief Act, 1963, as the plaintiff was able to ask for further relief, such as confirmation of possession or permanent injunction, but omitted to do so. 4. The matter should be remanded to the trial court to afford the plaintiff an opportunity to amend the plaint to include the prayer for consequential relief, as there were defects in the written statement and in framing the issue.
Final Decision: Appeal allowed; matter remanded to the trial court to afford the plaintiff an opportunity to make necessary amendment to the plaint so as to include the prayer for consequential relief and to pay ad valorem court fee thereon.
B. N. DASH, J.
( 1 ) THIS appeal by the plaintiff is against a reversing judgement.
( 2 ) ADMITTEDLY, Narayan Prasad Patnaik and Umasankar Patnaik (respondents 4 and 5 who were defendants 1 and 2 in the suit) were the owners of the suit land measuring 68 decimals in plot No. 1653 under Khata No. 101 of village Iswarpal, Samil Kadelipal and they executed a registered sale deed dated 6-5-1971 (Ext. 1) for a consideration of Rupees 3,000/- in favour of Bela Bewa, the mother of the plaintiff-appellant Dulan Dai. Thereafter, they cancelled the said sale deed on 30-4-1973 by Ext. 1 on the ground of nonpayment of consideration and re-sold the suit land in favour of respondents 1 to 3 (Defendants 3 to 5) by a registered sale deed dated 4-2-1977 (Ext. 8 ). There is also no controversy that Bela Bewa died in 1976.
( 3 ) THE case of the appellant-plaintiff is that before execution of the registered sale deed in favour of her mother, there was a written contract for sale of the suit land on 12-3-1971 between the vendors and the vendee on payment of Rs. 1,700/- by the vendee to the vendors and after execution of such contract for sale the vendors delivered possession of the suit land to the vendee on 5-5-1971. It is her further case that her mother continued to remain in possession till her death whereafter she herself remained in possession and that since after execution of the registered sale deed Ext. B in their favour the respondents 1 to 3 (defendants 3 to 5) created disturbance in their possession, she brought the suit merely for declaration of her right, title and interest over the suit land.
( 4 ) ALL the defendants have filed a joint written statement denying the title and possession of the plaintiff and her mother over the suit land. They have denied about any contract for sale between the defendants 1 and 2 on the one hand and the mother of the plaintiff Bela Bewa on the other. According to them, defendants 1 and 2 executed the registered sale deed in favour of Bela Bewa on her promise to pay the consideration amount of Rs. 3,000/- within a short period but since no consideration was paid for about two years, they cancelled the said deed and resold the same in favour of the defendants 3 to 5 and delivered possession of the same to them. In pursuance of the registered sale deed the defendants 3 to 5 having acquired title, the plaintiff was liable to be non-suited. The plea of bar of suit under the Limitation Act was also taken.
( 5 ) ON the pleadings of the parties, as many as seven issues were originally framed but before commencement of hearing of the suit, an additional issue was framed touching the maintainability of the suit. The trial Court decreed the suit with the following findings :- (I) There was a contract for sale and in pursuance thereof possession had been delivered to the plaintiff's mother; (ii) that title to the suit land passed to the mother of the plaintiff on execution and registration of the sale deed, Ext. 1; and (iii) that since, the plaintiff was in possession of the suit land and prior to her, her mother was in possession, the suit was not hit by S. 34 of the Specific Relief Act, 1963 (for short, 'the Act' ).
( 6 ) THE lower appellate Court reversed the decision of the trial Court and thereby dismissed the suit with the following findings : (A) That there was no passing of consideration under Ext. 1 and as such, title to the suit land did not pass to the plaintiff's mother; (b) that possession of the plaintiff and her mother was doubtful; (c) that as the plaintiff had not prayed for cancelling the sale deed in favour of defendants 3 to 5, the declaration sought for was futile and hence the suit was hit by S. 34 of the Act; and (d) that defendants 1 and 3 having cancelled the sale deed (Ext. 1) on 30-4-1973 and the suit having been filed on 10-5-1979, the suit was barred by time under Art. 58 of the Limitation Act. Being aggrieved by the reversing judgement and decree of the appellate Court, the pres
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