A suit for declaration of title must include a prayer for recovery of possession if the plaintiff is not in possession, as mandated by Section 34 of the Specific Relief Act.

C O M M O N J U D G M E N T

The defendant in O.S.No.168/2015 on the files of Munsiff Court, Erattupetta is the appellant in R.S.A.No.17 of 2024. Plaintiffs in the above Suit are the respondents herein. The appellant assails the decree and judgment in the above Suit, which were confirmed by the appellate court in A.S.No.17/2021.

2. R.S.A.No.20 of 2024 is at the instance of the plaintiffs in O.S.302/2014 on the files of Munsiff Court, Erattupetta. The respondents are the defendants in the above Suit. Verdicts in O.S.No.302/2014 on the files of Munsiff Court, Erattupetta and A.S.No.16/2021 on the files of the Sub Court, Pala, are under challenge in this appeal.

3. Heard the learned counsel for the appellants on admission. Perused the judgments under challenge and the documents placed by the learned counsel for the appellants.

4. Originally O.S.No.302/2014 was filed by Sarasamma and another as plaintiffs arraying Nalini and others as defendants. The prayer in the Suit was to declare right of the plaintiffs over item No.3 property in the above Suit. According to Nalini and others, plaint item No.3 property is part and parcel of plaint items No.1 and 2.

5. By filing written statement, Nalini and others resisted the Suit denying the contention that plaint item No.3 as part and parcel of plaint item No.1 and 2 properties and Sarasamma and others have no property up to the western PWD road and it was wrongly stated in their title deeds as road as the western boundary.

6. Bhaskaran and Nalini as plaintiffs filed O.S.No.168 of 2015 against one Raveendran Nair, who is the 2^nd plaintiff in O.S.No.302/2014 and the prayer in the Suit was to restrain Raveendran Nair, the defendant therein, from widening the pathway on demolishing the mud wall in the plaint schedule property therein. In the written statement filed by Raveendran Nair, the contentions raised in O.S.No.302/2014 were reiterated.

7. The trial court jointly tried both the matters treating O.S.No.302/2014 as the main case. PWs 1 to PW4 were examined and Exts.A1 to A5 were marked on the side of the plaintiffs. DW1 to DW4 were examined and Exts.B1 to B6 were marked on the side of the defendants. Exts.C1 series and C2 series were also marked as court exhibits.

8. Finally the trial court dismissed O.S.No.302/2014 while granting injunction as prayed for in O.S.No.168/2015.

9. Challenging the said verdicts, two appeals, viz., A.S.No.16/2021 and A.S.No.17/2021 were filed before the Sub Court, Pala. On re-appreciation of evidence, the appellate court found that item No.3 property in O.S.No.302/2014 is part of item No.1 and 2 properties, covered by title deeds of plaintiffs in O.S.No.302/2014. However, the appellate court refused the relief of declaration sought for therein holding that the plaintiff in O.S.No.302/2014 ought to have sought the relief of recovery of possession also, so as to grant an executable decree. The appellate court confirmed grant of injunction in O.S.No.168/2015.

Accordingly both appeals were dismissed.

10. While impeaching the veracity of the concurrent verdicts, the learned counsel for the appellants submitted that the appellants are aggrieved mainly in the matter of non grant of declaration in respect of plaint item No.3 property in O.S.No.302/2014, even though the first appellate court practically reversed the finding of the trial court as to the ownership of item No.3 property in O.S.No.302/2014, in favour of the plaintiffs therein. According to the learned counsel for the appellants, plaint item No.3 property is not larger extent of property, but only a small strip of property confined to 32 square meters and, therefore, even without prayer for recovery of possession, the relief of declaration of title and recovery