NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CR No. 79 of 2023 Order Reserved on : 06.11.2023 Order Delivered on : 12.02.2024  Smt. Meena Singh, aged about 50 years, W/o Bacchan Singh, R/o Priyadarshini Parisar, Supela, Bhilai, District Durg (C.G.)

---- Applicant Versus

1. Chhattisgarh Rajya Sahakari Awas Sangh, Maryadit, C-191, 1^st Floor, Tagore Nagar, District Raipur (C.G.) Through General Manager.

2. Madhukar Shende, aged 62 years, S/o Shri Domaji Shende, Previous Residence – Near Pentra Niwas, Dongargarh, Tahsil & District Rajnandgaon (C.G.)

3. Priyadarshani Gruh Nirman Sahkari Samiti Maryadit, Kurud, Bhilai, District Durg (C.G.) Registration No.DR/103./Durg, District Durg (C.G.)

4. State of Chhattisgarh Through – The Collector, Durg, District Durg (C.G.)

---- Respondents (Cause title is taken from Court Information System)

For Applicant : Mr. Amit Soni, Advocate.

For Respondent No. 1 : Mr. Mahendra Dubey, Advocate.

For State/Res. No.4 : Mr. Kunal Das, Panel Lawyer.

Hon'ble Smt Justice Rajani Dubey (C A V Order)

1. This civil revision has been filed by the defendant No.2 /applicant herein against the order dated 27.03.2023 (Annexure A/1) passed by the 4^th Civil Judge Class-II, District Durg (C.G.) in Civil Suit No.66-A/2018, whereby the learned trial Court dismissed the application of defendant No.2/applicant herein under Order 7 Rule 11 of C.P.C filed for rejection of suit.

2. Brief facts of the case are that plaintiff/non-applicant No.1 herein has filed a Civil Suit bearing No.66-A/2018 for declaration of title and permanent injunction on the ground that suit property plot No. 74, area 0.02 hectare out of Khasra No. 1550/12 of Priyadarshini Gruh Nirman Sanstha/ respondent No.3 herein, which was mortgaged with plaintiff/ respondent No.1 herein was sold to defendant No.2/petitioner herein by defendant No.1/respondent No. 2 herein by registered sale deed dated 30.04.2009. It was pleaded in the plaint that since the suit property was mortgaged with plaintiff/respondent No.1 herein, the defendant No. 1/respondent No.2 and defendant No.3/respondent No.3 herein, without the NOC of plaintiff/respondent No.1 herein, have not right to sale the suit property, as such, the sale deed dated 30.04.2009 is not binding upon the plaintiff and same may be declared as null and void. Defendant No.2/applicant filed an application under Order 7 Rule 11 of C.P.C. on the ground that the suit instituted by the plaintiff is barred by Section 34 of the Specific Relief Act and therefore, the same shall be dismissed. The said application has been dismissed by the learned trial Court on the ground that as per Section 34 of the Specific Relief Act, granting relief is barred and not the suit.

3. Learned counsel for the applicant submits that while dismissing the application filed under Order 7 Rule 11 of C.P.C. the reason cited by the learned trial Court is arbitrary as the proviso of Section 34 of the Specific Relief Act clearly speaks 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. The learned trial Court has not considered the objection of the applicant in its true perspective and in a mechanical manner has dismissed the application.

4. Learned counsel further submits that she had raised objection before the learned trial Court that the plaintiff has sought declaration to the effect that the registered sale deed dated 30.04.2009 be declared as null and void and, however, consequential relief of possession of the suit property has not been sought, as such, the suit instituted by the plaintiff is liable to be rejected. Further, even if the declaration to the aforesaid effect would have been made by the trial Court, the plaintiff could not get the possession of the suit land since the same was never sought for by the plaintiff in its plaint. Learned counsel also submits that the learned trial Court without considering the objection of the applicant has dismissed th