A suit for declaration of title cannot be maintained without seeking possession when the plaintiff is not in possession of the property as per Section 34 of the Specific Relief Act.

ORAL JUDGMENT

This Regular Second Appeal is filed by the appellant, challenging the judgment and decree dated 9.02.2016, passed in R.A.No.49/2012 by the learned II Additional Senior Civil Judge, Kolar (Itenerating at Mulbagal) setting aside the judgment and decree dated 13.02.2012 passed in O.S.No.337/2009, by the learned Additional Senior Civil Judge and JMFC, Mulbagal, regarding the declaratory relief.

2. For convenience, the parties are referred to, based on their rankings before the trial Court. The appellant was the defendant, respondent No.1 was the plaintiff, and respondent Nos.2 to 5 were the defendants.

3. Brief facts leading rise to the filing of this appeal are as follows:

The plaintiff filed a suit against the defendants for declaration of the title over the suit schedule property, and to declare the registered sale deed dated 03.08.1985 executed in favour of defendant No.1 by defendants No.2 to 4 as null and void, and not binding on him and for permanent injunction restraining defendant No.1 from interfering with the peaceful possession, and enjoyment of the suit schedule property.

3.1. It is the case of the plaintiff that, originally, the suit schedule property was owned by his great grandfather, Ghori Mohiddin Sab, who purchased the same from his vendor, Syed Mustafa Sab, under a registered sale deed dated 08.08.1922. His grandfather exercised his right over the suit schedule property as an absolute owner. After the demise of Ghori Mohiddin Sab, his son Ghouri Mohammed Ali Sab was enjoying the suit schedule property, and the khata was transferred in his name. After his death, the plaintiff’s father and the plaintiff were in possession of the suit property and after the death of plaintiff’s father, the plaintiff is enjoying the suit schedule property as the absolute owner. It is contended that defendant No.1 has illegally purchased the suit schedule property from defendants No.2 to 4 by creating documents. His grandfather Ghori Mohammed Ali Sab purchased the land bearing Sy.Nos.36/1 and 37/2 measuring 0.13 guntas, which includes a well from Gulam Dastgir Sab in 1940. The Dastagir Sab executed the sale deed regarding Sy.No.37/2, but there is no such survey number 37 in Kottapalli village, measuring 16 guntas existing in the said village. The vendor, Gulam Dastgir Sab was the owner of the property bearing Sy.No.35, measuring 13 guntas, but in the sale deed, it is wrongly mentioned as Sy.No.37/2 instead of Sy.No.35, but the boundaries mentioned in the registered sale deed tallies to the land bearing Sy.No.35. His grandfather, and father did not know about the said fact who sold the property bearing Sy.No.37/2 instead of Sy.No.35 measuring 13 guntas, to one Gulam Dastgir Sab, who was earlier owner. The purchaser challenged the khata of the property bearing Sy.No.37 instead of Sy.No.35 in his name. The Tahsildar, passed the order stating that the survey number is wrongly mentioned as Sy.No.37/2 in the sale deed, but Sy.No.37/2 is not yet divided. The Tahsildar has passed the order to change the khata. The khata was not changed in the name of his grandfather. Defendants No.2 to 4, taking undue advantage of the same, got changed khata illegally in their name and then sold the same in favour of defendant No.1 on 03.08.1985 and said transfer is not binding. It is contended that, defendant No.1 does not have any right, title or interest over the suit schedule property. He is trying to put stone slabs around the suit schedule property. The plaintiff has resisted the illegal acts of defendant No.1 with great difficulty, and he has also preferred an appeal before the Assistant Commissioner, Kolar, which is