Point of Law: Suit for declaration under Section 34 of the Specific Relief Act, though, being maintainable, the relief could not be granted as no notice under Section 80 (2) CPC was given to the defendants being the State and, on the basis of technical error dismissed the appeal

JUDGMENT :

1. Heard Sri A.P. Tewari, learned counsel for the appellant and Sri P.K. Giri, learned Additional Chief Standing Counsel for the respondents.

2. This is plaintiffs’ appeal under Section 100 of Code of Civil Procedure (in short “CPC”) against the judgment and decree dated 04.08.2017 passed by Additional District and Sessions Judge/Special Judge (Gangster Act), Court No.8, Deoria in Civil Appeal No.45 of 2016 arising out of judgment and decree dated 22.11.2016 passed by Additional Civil Judge (Junior Division), Court No.24, Deoria in Original Suit No.983 of 2007.

3. The facts, in brief, are that the plaintiffs-appellants filed a declarator suit against the defendants-respondents for declaring them as the legal heirs of deceased Markandey Pandey and also for declaring Markandey Pandey as dead.

4. The plaint version is that, on 12.10.1996, Markandey Pandey left the home to visit Vaishno Devi Temple, but when no whereabouts were heard by the family members, a report of missing person was given to the concerned police station. Further, as the whereabouts of Markandey Pandey was not heard for 7 years and the defendants were not passing orders for entry in the revenue records of the plaintiffs-appellants, Original Suit No.983 of 2008 was filed.

5. The aforesaid suit was contested by the defendant no.2, who filed his written statement and denied the allegations. It was further stated that no first information report has been lodged nor any publication in newspaper has been made regarding missing of Markandey Pandey. The trial Court framed the following issues:-

^^01- D;k oknhx.k okn i= esa mfYyf[kr dkj.kks d vk/kkj ij mn?kks"k.kkRed O;kns'k dk vuqrks"k ikus dk vf/kdkjh gS\
02- D;k okn voewY;kfdr gS\
03- D;k vnk U;k; 'kqYd vi;kZIr gS\
04- D;k U;k;ky; dks ekeys dh lquokbZ ds {ks=kf/kdkj ugh gS\
05- D;k okn vkns'k 7 fu;e 11 flŒizŒlaŒ ls ckf/kr gS\
06- vU; dksbZ vuqrks"k \^^

6. The trial Court, while deciding issue no.1, held that no first information report has been brought on record and only through Paper No.23-Ga, an application given to the police station was filed. The Court held that it had no jurisdiction to declare the plaintiffs as the successors of Markandey Pandey and thus, dismissed the suit.

7. Against the said judgment, a Civil Appeal No.45 of 2016 was preferred and the lower appellate Court dismissed the appeal on the ground that notice under Section 80 (2) CPC was not given before the filing of the suit and there was technical error in the filing of the suit and thus, appeal was dismissed on 04.08.2017, hence the present appeal.

8. I have heard learned counsel for the parties and perused the material on record.

9. The plaintiffs-appellants filed suit for declaring them to be the legal heirs of Markandey Pandey who was missing since 12.10.1996 and further sought that Markandey Pandey be declared dead.

10. Section 34 of the Specific Relief Act provides for the declaratory decrees for which any person is entitled to. Section 34 of Specific Relief Act, 1963 is extracted hereasunder:-

Second Appeal No.957 of 2017

“ 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.

Explanation.—A trustee of property is a “person interested to deny” a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee.”

11. From the bare perusal of the above provision, it is clear that a suit for declaration could be filed by any person for the following objects (a) for his or her legal character, (b)