A suit for declaration of title filed by a plaintiff not in possession of the suit property is not maintainable under the proviso to Section 34 of the Specific Relief Act, 1963, unless accompanied by a consequential prayer for recovery of possession.

THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 13.03.2012 PASSED IN R.A.NO.48/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE & PRL. JMFC., TARIKERE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 16.09.2006 PASSED IN O.S.NO.157/1999 ON THE FILE OF THE CIVIL JUDGE (JR.DN) & ADDL. JMFC., TARIKERE.

THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI

ORAL JUDGMENT

Challenging judgment and decree dated 13.02.2012 passed by Senior Civil Judge and Principal JMFC, Tarikere, allowing R.A.no.48/2006 as well as dismissing Cross-Appeal filed against judgment and decree dated 16.09.2006 passed by Civil Judge (Jr.Dn.) and Additional JMFC, Tarikere, in O.S.no.157/1999, this appeal is filed.

2. Brief facts as stated are that, vacant sites in Nandi village, Lingadahalli Hobli, Tarikere Taluk bearing khanesumari nos.257, 258, 259, 260, 262 to 267 measuring East-West 500 feet and North-South 300 feet was subject matter of O.S.no.157/1999 filed between parties herein (referred to as ‘suit property’) seeking for declaration that plaintiff was owner in possession of suit property and consequential relief of permanent injunction restraining defendants, etc., from interfering with plaintiff's peaceful possession and enjoyment of suit property. In plaint, it was stated, suit property was purchased by plaintiff under registered Sale Deed dated 23.04.1956 from Vallanna S/o Eranna for valuable consideration of Rs.400/- and plaintiff was put in possession. It was stated that original Sale Deed was later lost/misplaced. It was further stated, plaintiff was unable to construct houses in sites. Hence, they were used for agriculture. And when he applied for khanesumari extracts, he was issued with an endorsement that records were not available. It was stated that at time of suit, plaintiff had grown sunflower, chilly, tingalavurali, peas, maize and urad, etc.

3. It was stated, without any right, title or possession, defendants entered suit property on 03.08.1999 at 1:00 p.m. and destroyed crops with intent to dig pits, fix poles and construct houses. Plaintiff filed private complaint on 05.08.1999 and also gave police complaint. Police issued endorsement that dispute was civil in nature. On apprehension that defendants being powerful were likely to trespass again, suit was filed.

4. On service of summons, defendant no.2 filed written statement, generally denying entire plaint averments. He also disputed correctness of measurements and boundaries of suit property in plaint schedule. He specifically stated that schedule in plaintiff’s Sale Deed and plaint schedule did not tally with each other. It was stated that he along with some other houseless persons had constructed thatched sheds on Gramathana about ten years ago and in possession since then. Hence, plaintiff was not entitled for relief of injunction. He also claimed to have filed application for grant of site which were pending before Panchayath. Therefore, suit was bad for non joinder of necessary parties.

5. In separate written statement, in addition to above, defendant no.3 stated sale deed itself indicated that sites sold belonged to Sanna Eranna, therefore Vallanna, who executed Sale Deed in favour of plaintiff, did not have title or possession of