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KARNATAKA HIGH COURT
Anant Ramanath Hegde, J.
Taj Parveen and Anr. – Appellants
versus
Ezazulla Shariff and Ors. – Respondents
Regular Second Appeal No.1657/2013 (DEC/INJ)
Decided on 16.2.2026
(A) Specific Relief Act, 1963 – Section 34 – Civil Procedure Code, 1908 – Order XXIII Rule 1(3) and (4) – Suit for declaration of title and injunction – In an injunction suit, cause of action is recurring and merely because suit is withdrawn or dismissed for non-prosecution, that does not mean that plaintiff in said suit cannot file one more suit if there is a different cause of action – Order XXIII Rule 1(3) and (4) of CPC is not inflexible and does not create an absolute bar to a second suit where liberty was not sought – However, if liberty to file a fresh suit was sought and specifically refused, such case falls into a different category – Suit seeking declaration and injunction is per se not barred in view of withdrawal of earlier suit – However, plaintiffs have to make out a case for grant of relief. (Paras 38, 40 and 44)
(B) Civil Procedure Code, 1908 – Order II Rule 2 – Bar on subsequent suit – Order II Rule 2 of CPC would be applicable in a situation where plaintiff omits to include a whole claim in respect of a cause of action and does not seek leave of Court to file suit in respect of said omitted relief in a subsequent suit- It is not the case of appellants that plaintiffs ought to have claimed relief of declaration of title when they filed earlier suit for injunction – Such a plea is not raised in written statement – Whether plaintiffs had cause of action to claim relief of declaration of title when suit for injunction was filed is a question of fact dependent on nature of threat plaintiffs perceived or nature of interference – It is not open to appellants now to contend that suit is hit by Order II Rule 2 of CPC without raising factual plea in written statement as to what was nature of cause of action in earlier suit for injunction. (Paras 45, 46 and 47)
(C) Specific Relief Act, 1963 – Section 34 – Suit for declaration of title and injunction – In a suit for declaration of title and injunction, if defendant sets up plea of adverse possession, and if plaintiff establishes title and fails to establish possession and if defendant establishes possession but fails to establish title by adverse possession, Court can mould relief to grant declaration and possession as defendant would have no defence left to permit him to contest prayer for possession. (Para 74(f)(i))
Result: Appeal allowed-in-part.
JUDGMENT (CAV)
The Second Appeal arising from the divergent findings was admitted to answer the following substantial questions of law:—
1. Whether the Appellate Court was justified in decreeing plaintiffs’ suit when the plaintiffs have failed to substantiate their title with acceptable ocular and documentary evidence?
2. Whether the suit of the plaintiffs was maintainable, when the plaintiffs were not granted liberty to file fresh suit on the same cause of action in O.S.No.235/2008 and O.S.No.191/2008?
3. Was not the suit of the plaintiff hit by Order 2 Rule 2 of CPC?
2. During the course of hearing the learned Senior Counsel for the appellants-defendants also urged that in view of the bar under proviso to Section 34 of the Specific Relief Act, 1963 (Act, 1963), the relief of declaration of title is not tenable as the plaintiffs though not in possession of the property have not claimed the consequential relief of possession but sought declaration of title and defective consequential relief of injunction.
3. Thus, the Court also heard the learned Senior counsel for the appellants and the learned counsel for the respondents on the following substantial questions of law as well.
Whether the suit for declaration of title and injunction can be decreed in part granting only declaration, in case plaintiff’s title is established and possession is with the defendants despite the bar contained in Section 34 of the Specific Relief Act, 1963?
Or,
Can the Court declare the title and deny the consequential relief, or can mould the relief and grant the decree for possession as well if the appropriate consequential relief of possession is not claimed?
4. This second appeal is by defendants No.1 and 2. The Trial Court dismissed the suit for declaration of title and injunction. On appeal, the First Appellate Court allowed the appeal and decreed the suit in toto.
5. Learned Senior Counsel appearing for the defendants/appellants taking through the previous proceedings between the parties to this appeal submitted that initially, O.S. No.191/2008 was filed by two plaintiffs (plaintiffs No. 5 and 6 of the suit O.S. No. 156/2010 from which present appeal arises) for the relief of partition, declaration and permanent injunction. Said suit was filed against the present appellants, plaintiff No. 7, and also the father of plaintiffs No.1 to 4 of O.S. No. 156/2010.
6. Acting on the memo filed by the said two plaintiffs, the suit in O.S. No.191/2008 was dismissed as not pressed vide order dated 10.06.2008. It appears that in the memo it is stated that the dispute is settled out of court. The defendants in the suit, (present appellants) did not sign the memo and did not object for withdrawal of the suit either.
7. The seven plaintiffs who are also the plaintiffs in the suit under scrutiny (O.S. No.156/2010), on 19.05.2008, filed O.S. No.235/2008 for permanent injunction for the same property and the same was dismissed for non-prosecution on 11.06.2009.
8. Later, the suit in O.S.No.156/2010 (from which the present appeal arises) is filed on 15.07.2010 seeking declaration of title and permanent injunction for the same property and same is dismissed on merits on 20.06.2012.the appeal by the plaintiffs, the first appeal (R.A.No.138/2012) is allowed and suit is decreed as prayed for. Present appellants who are the defendants No.1 and 2 have filed the present appeal.
9. Learned Senior counsel urged that during the pendency of R.A.No.138/2012, one more suit in O.S.No.132/2013 was filed on 26.04.2013 by the very same plaintiffs for declaration, possession and injunction and the same was dismissed as not pressed based on the memo dated 27.06.2013. It was dismissed as not pressed after the judgment in R.A. No.138/2012 as plaintiffs were granted declaration of title and injunction.
10. In addition, it is also submitted that one more suit in O.S.No.148/2014 is filed on 21.04.2014, (during the pendency of this appeal) for partition and separate possession a
(1) In an injunction suit, cause of action is recurring – Suit seeking declaration and injunction is per se not barred in view of withdrawal of earlier suit.(2) Bar on subsequent suit – Whether plain....
Court affirmed the right to declare property title under Section 34 of Specific Relief Act, allowing declaratory relief without possession claim, while emphasizing prior suits' withdrawal does not ou....
A suit for declaration may be maintained even if the plaintiff is not in possession, provided a consequential relief is sought, as mutation does not establish ownership.
(1) There is no bar in Specific Relief Act, 1963 in granting standalone declaratory decree.(2) Discretion in granting declaratory decree on ownership cannot be exercised by Court to deny such relief ....
When there is a denial of title or a challenge raising a cloud, parties should file a suit for declaration of title, and adverse possession requires hostile possession denying the true owner's title.
A party not involved in previous proceedings cannot be bound by collusive decrees and may seek declarations of title despite not claiming recovery of possession.
A suit for declaration of title is maintainable without a claim for possession when the property is in possession of a tenant not part of the suit, as jurisdictions may bar possession claims under sp....
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