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2002 Supreme(Online)(P&H) 61

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Ramesh Kumari, J
Mool Raj – Appellant
Versus
Raj Dulari – Respondent
RSA No.1071 of 2002

Advocates:
For the Appellants/Petitioners: Munish Jolly
For the Respondents: Ishant Arora, Mohit Sadana

A suit for declaration of title, when the plaintiff is not in actual possession of the suit property, is not maintainable under Section 34 of the Specific Relief Act if the consequential relief of possession is not sought.

Headnote:(A) Specific Relief Act, 1963 - Section 34 - Suit for declaration without consequential relief of possession when plaintiff is not in possession is not maintainable - Proviso to Section 34 of the Act is mandatory and omission to seek consequential relief mandates the court to refuse grant of declaratory relief.

(B) Transfer of Property Act, 1882 - Section 43 - Plea of protection based on transfer by an unauthorized person who subsequently acquires interest is not available when transferee has knowledge that the property owner is a third person and not the transferor.

Facts of the case:
The plaintiffs filed a suit for declaration of title and permanent injunction regarding a property originally owned by their father. Defendants claimed ownership based on sale deeds executed by the father's sons before the father's death, asserting they were bona fide purchasers who had constructed a house on the property.

Findings of Court:
The court held that the plaintiffs were never in possession of the suit property, and because they failed to seek the consequential relief of possession, the suit was barred under the proviso to Section 34 of the Specific Relief Act. The court also rejected the defendants' plea under Section 43 of the Transfer of Property Act, finding that the purchasers were aware the true owner was alive at the time of the sale.

Issues: Whether a suit for declaration without seeking possession is maintainable where the plaintiff is out of possession; and whether the defendants are protected under Section 43 of the Transfer of Property Act.

Ratio Decidendi: A suit for declaration simpliciter is not maintainable if the plaintiff is not in possession and fails to seek the consequential relief of possession. Furthermore, the benefit of Section 43 of the Transfer of Property Act cannot be claimed by a purchaser who had notice that the title of the property vested in a person other than the transferor at the time of the transaction.

Result: Appeal allowed; suit dismissed.

Table of Content
1. summary of facts involving property dispute and alleged succession. (Para 1 , 2 , 3)
2. parties' contentions regarding maintenance of suit and possession status. (Para 4 , 5 , 6 , 7 , 8)

RAMESH KUMARI, J. (oral)

1. The present regular second appeal is filed by the appellants/defendants against the impugned judgment and decree dated 23.11.2001 rendered by the then learned Additional District Judge, Ropar in Civil Appeal No.89 of 12.10.1998 filed by the appellants-plaintiffs (respondents herein) against the respondents-defendants (appellants herein) vide which, judgment of learned trial Court rendered in Civil Suit No.191 of 05.02.1996 decided on 21.09.1998 was set aside and suit was ordered to be decreed in favour of the plaintiffs and they were declared owners in possession of the suit property and it was further held that if they were dispossessed from the suit property during the pendency of the suit, they were entitled to get its possession.

2. The pleaded facts of the case of the plaintiffs are that plaintiffs Raj Dulari and Shakultla Devi are daughters of one Swaraj, who was owner of the suit property. Besides both the plaintiffs, Swaraj had two sons namely, Naresh Kumar and Tarsem Lal. Swaraj died on 17.01.1982. Tarsem Lal and Naresh Kumar died in the year 1983 and 1993, respectively i.e. after the death of their father-Swaraj. Tarsem Lal and Naresh Kumar had no legal heirs at the time of their death except their real sisters/plaintiffs and mutation of agricultural land of Swaraj has already been sanctioned in favour of both the plaintiffs. The pleader case of the plaintiffs was that they being legal heirs of their father-Swaraj and brothers, are entitled to the decree of declaration to the effect that they are owners in possession of the suit property with permanent injunction restraining the defendants from making any type of interference or construction in the suit property situated in village Kainpur, Tehsil & District Ropar, as shown in the site plan Ex. P-1.

3. The defendants in their written statement contested the suit by raising a preliminary objection that suit property is in residential area and a constructed house. The plaintiffs have no right, title or concern with the suit property because they are strangers to it and not successors of Tarsem Lal and Naresh Kumar. Mool Raj-defendant No.1 purchased suit property from Tarsem Lal and Naresh Kumar vide sale deeds dated 28.07.1980 Ex. D1 and Ex. D2 for a sum of ₹99 each and possession of the suit property was delivered to Mool Raj by vendors. Mool Raj constructed three rooms, kitchen, bath room, stair case and one cattle shed thereon. Mool Raj started residing therein immediately after construction. The plaintiffs are neither owners nor in possession on any part of suit property. The defendants are married and residents of village Khamano. The defendants admitted that earlier Swaraj was owner in possession of the suit property. Sale deeds are for consideration. Mool Raj was a bona fide purchaser for lawful consideration.

4. Replication was filed controverting the averments made in the written statement and the learned Trial Court framed the following issues vide order dated 03.10.1996 :-

1) Whether the plaintiff is entitled to the declaration as prayed for? OPD

2) Whether the suit of the plaintiff is not maintainable as prayed for? OPP

3) Whether the plaintiff has no locus standi to file the present suit? OPD

4) Relief.

Further five additional issues were again framed on 31.03.1997 by the trial Court :-

1) Whether the plaintiff is entitled to the declaration as prayed for? OPP

2) Whether the plaintiff is entitled to the permanent injunction as prayed for? OPP

3) Whether deft. No.1 Mool Raj is a bona fide purchaser for value and without any notice? OPD

4) Whether the defendant Mool Raj had purchased the suit property vide sale deed dated 28.7.1980? OPD

5) Relief.

5. Plaintiff No.1 Raj Dulari stepped into the witness box PW-1 and also exam

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2002 Supreme(Online)(P&H) 61

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARHRamesh Kumari, JMool Raj – AppellantVersusRaj Dulari – RespondentRSA No.1071 of 2002

A suit for declaration of title, when the plaintiff is not in actual possession of the suit property, is not maintainable under Section 34 of the Specific Relief Act if the consequential relief of possession is not sought.

Cases Referred (5)

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Ramesh Kumari, J
Mool Raj – Appellant
Versus
Raj Dulari – Respondent
RSA No.1071 of 2002