A suit for declaration under Section 34 of the Specific Relief Act is not maintainable without establishing a vested interest in the property, and claims barred by limitation cannot proceed.

ORAL ORDER

The petitioners-defendants, in this civil revision petition, are challenging the order dated 29.09.2023 passed by the Court of Senior Civil Judge and JMFC, Malur in O.S. No. 636/2022, whereby the application filed under Order 7 Rule 11(a) and (d) read with Section 151 of the CPC was rejected.

2. The respondent-plaintiffs, as public-spirited persons and residents of Malur Taluk, have filed the present suit for declaration and permanent injunction seeking that the government is the absolute owner of the suit schedule property—bearing Sy. No. 112 and newly created Sy. No. 563, measuring 1.20 acres, situated in Malur Village, Kasaba Hobli, Malur Taluk, Kolar District. The prayer for permanent injunction is sought to prevent defendants, their agents, etc., from alienating the suit schedule property. Incidentally, the plaint does not feature a prayer for recovery of possession.

2.1. Essentially, they seek a negative declaration in favor of the government, on the grounds of illegal grabbing of valuable public property.

3. The defendants contend that the suit is not maintainable as it challenges the grant of the suit schedule property to the late husband of Defendant No. 1 after a lapse of 40 years from the date of the grant, which was made in 1973. The plaintiffs dispute the defendants’ title, alleging that the documents were fabricated in collusion with revenue authorities, leading to the mutation of khatas in the name of Defendant No. 1, the wife of the original grantee. However, the defendants argue that a declaratory suit, along with a consequential relief of injunction, cannot be sustained in the absence of any specifically pleaded right of the plaintiffs over the suit schedule property.

3.1 The petitioner-defendants sought rejection of the plaint before the Trial Court on the grounds of non- disclosure of cause of action and bar of limitation.

However, the Trial Court, vide impugned order dated 29.09.2023, rejected the application, holding that the revenue records appeared to have been fabricated and that a detailed trial was necessary to ascertain the genuineness of the grant. The Trial Court further observed therein that the issue of limitation herein is a mixed question of law and fact, necessitating a full trial.

Submissions

4. Shri Uday Holla, learned Senior Counsel appearing for the petitioners’ counsel, submitted that the plaint averments do not disclose whether the suit schedule property is either gomala land or earmarked for public purposes. He further contended that the grant of the suit schedule property was made in favor of the defendants in 1973, and therefore, the suit is barred by limitation under Article 58 of the Limitation Act . Consequently, the present suit, seeking a declaration that the government is the owner of the suit schedule property, is not maintainable. Additionally, he argued that the plaint averments fail to disclose any cause of action for filing the present suit.

4.1 Furthermore, he contended that the Trial Court erred in dismissing the application filed by the defendants under Order 7 Rule 11(a) and (d) of the CPC for rejection of the plaint. He argued that the Trial Court erroneously concluded that the revenue records appear to have been fabricated and that a cause of action is not barred by limitation.

In support, reliance is placed on the following:

1) Tamalo Das alias Sethi and another -vs- Sefali Pradhan Through Her L.Rs. - ( AIR Online 2024 ORI 86 );

2) The State -vs- Khanbahadur HHDH Bhiwandiwala and Co., Bhopal (1974 The Indian Law Reports 465);

3) Mool Raj -vs- Atma Ram - (1984 SCC OnLine J&K 27);

4) Sree Surya Developers and Promoters -vs- N Sailesh Prasad and others (2022) 5 SCC 736 ;

5) I.T.C. Limited -vs- Debts Recovery Appellate Tribunal and others (1998) 2 SCC 70 ;

6) Saleem Bhai and others others (2003) 1 SCC 557 ; vs State of Maharashtra and

7) RK Roja -vs- U S Rayudu and another - (2016) 14 SCC 275 ;

8) CS Ramaswamy -vs- V K Senthil and others ( (2022) SCC OnLine SC 1330 )

9) Aru