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2024 Supreme(Online)(KAR) 39569
HIGH COURT OF KARNATAKA
E.S. INDIRESH, J
SYED MOHAMMED GHOUSE PASHA QUADRI – Appellant
Versus
SYED YASEEN PASHA KHADRI SINCE DEAD BY HIS LRS SYED SALMAN – Respondent
RSA 1064 of 2023
A suit for declaration of title without seeking possession is not maintainable if the plaintiff is out of possession, as per Section 34 of the Specific Relief Act.
Headnote:(A) Civil Procedure Code, 1908 - Section 100 - Suit for declaration of title - The First Appellate Court's decree was challenged by defendants for allowing the suit based on unregistered partition deeds, which were deemed insufficient to establish title without seeking possession - The trial court dismissed the suit, finding the plaintiff out of possession and failing to prove the partition deeds - The appeal raised substantial questions of law regarding the maintainability of the suit without a prayer for possession and the sufficiency of evidence for title. (Paras 9, 10, 11, 30, 31)
Facts of the case:
The plaintiff claimed ownership of joint family property based on two partition deeds, asserting that the defendant unlawfully changed revenue records and executed a gift deed in favor of his wife, which the plaintiff contended was not binding. (Paras 3, 4)
Findings of Court:
The court held that the suit for mere declaration was not maintainable as the plaintiff was out of possession and failed to seek consequential relief, thus confirming the trial court's judgment. (Paras 30, 31)
Issues: The key issues were whether the First Appellate Court was justified in relying on unregistered partition deeds and whether sufficient material existed to declare the gift deed null and void. (Paras 9, 10)
Ratio Decidendi: The court ruled that a suit for declaration without seeking possession is not maintainable if the plaintiff is out of possession, reaffirming the mandate of Section 34 of the Specific Relief Act. (Paras 30, 31)
Result: The Regular Second Appeal is allowed; the judgment of the First Appellate Court is set aside, and the trial court's dismissal of the suit is confirmed.
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE E.S.INDIRESH)
This Regular Second Appeal is filed by the defendant Nos.1 and 2, challenging the judgment and decree dated 31.07.2020 passed in RA No.34 of 2018 on the file of the I Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru, (for short, hereinafter referred to as 'First Appellate Court') allowing the appeal and setting aside the judgment and decree dated 03.02.2018 passed in OS No. 119 of 2006 on the file of the IV Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru, (for short, hereinafter referred to as 'Trial Court') dismissing the suit of the plaintiff.
2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court.
3. The plaint averments in brief are that, the grandfather of the plaintiff-Lakshmaiah Reddy, had three children namely, M.L. Hanumappa Reddy, M.L. Ramaiah Reddy and M.L.Narayanaswamy. It is further stated that, there was a partition in the joint family, in which, father of the plaintiff was allotted 'C' Schedule in the family partition as per the registered Partition Deed dated 30.06.1971. It is further stated that, father of the plaintiff- M.L.Narayanaswamy, had five sons namely, M.N.Nagabhushan, M.N.Prabhakar Reddy, (defendant No.1), M.N.Shashibhushan, M.N.Somashekara (plaintiff) and M.N. Anil Kumar. It is the case of the plaintiff that, the suit schedule property is a joint family property of the plaintiff and defendants and as such, the members of the joint family have entered into unregistered partition deed on 06.12.1989, in which, defendant No.1 and plaintiff were given 'C' and 'D' schedule properties, respectively, and further, Item No.7 of the schedule property i.e. the land bearing Sy No.130 (New Sy No. 130/1) of Kittaganur village, measuring to an extent of 02 acres, 06 guntas, granted to the plaintiff and defendant No.1, jointly, without giving specific division to defendant No.1 and the plaintiff. As per the unregistered Partition Deed dated 06.12.1989, the properties mentioned in the above partition deed were acquired by the father of the plaintiff-M.L.Narayanaswamy. It is further stated in the plaint that, father of the plaintiff- M.L.Narayanaswamy died on 08.07.1993 and after the death of Sri. M.L.Narayanaswamy, the family members of late M.L. Narayanaswamy had entered into further partition in respect of the remaining joint family properties as per partition deed dated 01.04.1998 and in the said partition, 'C' Schedule property was allotted in favour of defendant No.1 and 'D' schedule property was allotted to plaintiff. Therefore, it is the contention of the plaintiff that, the defendant No.1 was given 'C' schedule-Item No.1 i.e. land bearing Sy No. 130/1, (Old Sy No. 130) measuring to an extent of 1 acre, 03 guntas, with specific boundaries, so also the plaintiff was given 'D 'schedule-Item No.1 measuring 01 acre, 03 guntas in Sy No. 130/1, (Old Sy No. 130) of Kittaganur village with specific boundaries. Therefore, the contention of the plaintiff is that, as the schedule properties have been divided, as mentioned above, the defendant No.1 by suppressing the above two partition deeds dated 06.12.1989 and 01.04.1998, changed the revenue records into his name, and as such, deprived the legitimate share of the plaintiff. It is also pleaded in the plaint that, the defendant No.1 had executed a registered Gift Deed on 30.06.2005, in favour of his wife-defendant No.2 and therefore, the alleged act of Gift Deed executed by the defendant No.1 in favour of defendant No.2, is contrary to law and as such, the plaintiff has filed OS No. 119 of 2006 against the defendants seeking relief of declaration with consequential relief that, the Gift Deed dated 30.06.2005 said to have been executed by defendant No.1 in favour of defendant No.2 is not binding on the plaintiff.
4. After service of summons, defendants entered appearance and have filed written st
