Court affirmed the right to declare property title under Section 34 of Specific Relief Act, allowing declaratory relief without possession claim, while emphasizing prior suits' withdrawal does not oust subsequent lawsuits.

CAV JUDGMENT

The Second Appeal arising from the divergent findings was admitted to answer the following substantial questions of law:

1. Whether the Appellate Court was justified in decreeing plaintiffs’ suit when the plaintiffs have failed to substantiate their title with acceptable ocular and documentary evidence?

2. Whether the suit of the plaintiffs was maintainable, when the plaintiffs were not granted liberty to file fresh suit on the same cause of action in O.S.No.235/2008 and O.S.No.191/2008?

3. Was not the suit of the plaintiff hit by Order 2 Rule 2 of CPC?

2. During the course of hearing the learned Senior Counsel for the appellants-defendants also urged that in view of the bar underproviso to Section 34 of the Specific Relief Act, 1963 (Act,1963), the relief of declaration of title is not tenable as the plaintiffs though not in possession of the property have not claimed the consequential relief of possession but sought declaration of title and defective consequential relief of injunction.

3. Thus, the Court also heard the learned Senior counsel for the appellants and the learned counsel for the respondents on the following substantial questions of law as well.

Whether the suit fordeclaration of title and injunction can be decreed in part granting only declaration, in case plaintiff’s title is established and possession is with the defendants despite the bar contained in Section 34 of the Specific Relief Act, 1963 ?

Or,

Can the Court declare the title and deny the consequential relief, or can mould the relief and grant the decree for possession as well if the appropriate consequential relief of possession is not claimed?

4. This second appeal is by defendants No.1 and 2.The Trial Court dismissed the suit for declaration of title and injunction. On appeal, the First Appellate Court allowed the appeal and decreed the suit in toto.

5. Learned Senior Counsel appearing for the defendants/appellants taking through the previous proceedings between the parties to this appeal submitted that initially, O.S.No.191/2008 was filed by two plaintiffs (plaintiffs No. 5 and 6 of the suit O.S. No. 156/2010 from which present appeal arises) for the relief of partition, declaration and permanent injunction. Said suit was filed against the present appellants, plaintiff No. 7, and also the father of plaintiffs No.1 to 4 of O.S.No. 156/2010.

6. Acting on the memo filed by the said two plaintiffs, the suit in O.S. No.191/2008 was dismissed as not pressed vide order dated 10.06.2008. It appears that in the memo it is stated that the dispute is settled out of court. The defendants in the suit, (present appellants) did not sign the memo and did not object for withdrawal of the suit either.

7. The seven plaintiffs who are also the plaintiffs in the suit under scrutiny (O.S. No.156/2010), on 19.05.2008, filed O.S. No.235/2008 for permanent injunction for the same property and the same was dismissed for non-prosecution on 11.06.2009.

8. Later, the suit in O.S.No.156/2010 (from which the present appeal arises) is filed on 15.07.2010 seeking declaration of title and permanent injunction for the same property and same is dismissed on merits on 20.06.2012. On the appeal by the plaintiffs, the first appeal (R.A.No.138/2012) is allowed and suit is decreed as prayed for. Present appellants who are the defendants No.1 and 2 have filed the present appeal.

9. Learned Senior counsel urged that during the pendency of R.A.No.138/2012, one more suit in O.S.No.132/2013 was filed on 26.04.2013 by the very same plaintiffs for