Sheo Tahal Nath Missir v. Ram Chandra Nath Tiwary — 1988 DIGILAW 374 (PAT)

Judgment S.B. Sinha, J. By an order 7.10.1988 two substantial questions of low were formulated, which are as follows :- “(a) Whether in view of the fact that the plaintiff filed a suit merely for declaration for a title without seeking any consequential or further relief, the suit is barred under the proviso to section 34 the Specific Relief Act, 1963?” “(b) Whether the learned court below having concurrently found that the entry in the survey settlement record of right is in the name of Mostt. Amrit Kuer, the maintenance holder, the suit could have been decreed without there being any pleadings in the plaint that the suit property was resumed after the death the maintenance holder.” 2. The defendant no. 4 is the appellant in this second appeal. 3. The plaintiffs-respondents filed the aforementioned suit on the following allegations. Durga Nath Missir had 5 Anna and 4 Pies interest in village Bijuli bearing C.S. Khewat Nos. 10 and 11 and he had executed a mortgage deed, marked as exhibit no. 13. According to the plaintiffs the mortgaged amount was not paid as a result where of the mortgage suit was instituted, which was in a decree. The said decree was put in execution being Execution Case No 38/37 wherein the mortgaged property was sold by the executing court in favour of the decree holder. In the said execution case the sale of the property involved in the said suit was confirmed and the delivery of possession thereof was also effected. The sale certificate is Exhibit 12 and the writ of delivery of possession is Exhibit 11. 4. It appears that in the aforementioned mortgage deed although the interest of the mortgager was shown as 5 Anna and 4 Pies i.e. to the extent of his share but at the end there of 72 and odd acres of land had been mentioned. 5. According to the plaintiffs the delivery of possession pursuant to the aforementioned auction sale was, however, effected in respect of 130 acres of land i.e. more then the share of the mortgager. In that view of the matter a controversy arose. 6. The further case of the plaintiffs is that after execution of the said deed of mortgage Durga Nath Missir executed 10 acres and odd land in favour of his step mother by way of maintenance. In that view of the matter a controversy arose. 6. The further case of the plaintiffs is that after execution of the said deed of mortgage Durga Nath Missir executed 10 acres and odd land in favour of his step mother by way of maintenance. The aforementioned 10 acres and land is the subject matter of the present suit. The said land was recorded in Khewat No. 35 in the revisional survey of record of right. It is further stated that Amrit Kuer, the step mother of Durga Nath Missir had only a life interest in the aforementioned Khorposh, but the executed a permanent deed of settlement in respect of plots no. 423 and 425 in favour of defendant no. 2 and 3 where for the aforementioned Durga Nath Missir instituted a suit in the year 1946 for revocation of tenancy created by Amrit Kuer. The aforementioned suit ended in a compromise and thereafter defendants no. 2 and 3 sold plot no. 425 to Padam Devi, mother of defendant no. 1. 7. Plaintiffs further case is that these transactions are malafied and in reality no Khorposh had ever been created in favour of Amrit Kuer. 8. It further appears that before institution of the aforementioned suit there had been litigation with regard to the property in suit by and between the parties including Criminal case. 9. On the other hand, the defendants no. 1 to 3 claim the lands in suit on the basis of the aforementioned Khorposh deed and subsequent deed of sale executed by defendants no. 2 and 3 in favour of padam Devi mother of defendant no. 1. 10. Two rots of written statement were filed in the aforementioned suit. In the written statement filed by the defendant no. 4 appellant the plaintiffs title was denied. In the said written statement apart from the general legal pleas the main defence of the appellant appears to be as follows :- The tenure interest of Durganath was recorded in several khatas. He did not mortgage his entire interest but mortgaged only 7260 acres of land out of Kewant No. 10 and 11. The auction purchaser obtained symbolic possession ever that area only. In 1946 Durganath filed a partition suit which was ultimately dismissed for nonpayment of court fee. Durganath had given 10 acres and odd lands to his step mother and who came in possession thereof. The auction purchaser obtained symbolic possession ever that area only. In 1946 Durganath filed a partition suit which was ultimately dismissed for nonpayment of court fee. Durganath had given 10 acres and odd lands to his step mother and who came in possession thereof. Amrit Kuer (the maintenance holder) settled plot no. 423 and 425 in favour of defendants no. 2 and 3 in January 1946 who came in possession. Dinanath filed a suit for a declaration that the said settlement was invalid. The said suit was compromised and consequently they sold plot no. 423 to the mother of defendant no. 1 (Pade Kuer) and themselves retained plot no. 425. Other land which were in possession of the maintenance holder came in possession of Durganath after the death of said Amrit Kuer and after his death the said lands came in possession of the defendants no. 4 and others. 11. The learned trial court decreed the aforementioned suit. The defendant no. 4appellant being aggrieved by and dissatisfied with the said judgment and decree preferred an appeal in the court of Judicial Commissioner, Ranchi which was registered as Title Appeal No. 10/6 of 1967/69. The defendants no. 1, 2 and 3 also preferred an appeal which was registered as Title Appeal No. 9/5 of 1967/69. 12. Both the aforementioned appeals were heard together and by a judgment dated 17.5.1976 passed by Amar Nath Singh 1st Additional Judicial Commissioner, Ranchi in whose court appeal were transferred for disposal dismissed the said appeal. It is stated at the bar that the defendants no. 1 to 3 have not preferred any appeal in this court from the said appellant decree. 13. The trial court framed a specific issue with regard to the maintainability of the suit being issue no. 5, which reads as follows :- “Is the suit barred under section 42 (o) the specific Relief Act.” The said issue no. 6 has been decided in paragraph 34 of the judgment. The trial court was of the opinion that the plaintiffs being in continuous possession over the lands in suit it was not necessary to seek any consequential relief. 14. The trial court further held that in the earlier litigations including one in the Revenue Court although the title of the plaintiffs was under challenge, but there has been no challenge so far as their possession is concerned. 15. 14. The trial court further held that in the earlier litigations including one in the Revenue Court although the title of the plaintiffs was under challenge, but there has been no challenge so far as their possession is concerned. 15. The learned lower appellate court, however, formulated four questions for its decision including the question as to whether Amrit Kuer in fact came in actual physical possession and whether any actual or physical delivery of possession was taken in respect of the land appertaining to Khewat No. 35 and the plaintiffs had been in possession thereof at the time of vesting of the Zamindari. It further formulated a question as to whether the suit was barred by any provision of low or not? 16. The learned lower appellate court considered all the issued aforementioned in paragraph 5 of its judgment. 17. The learned lower appellate court raised a presumption with regard a to the delivery of possession effected pursuant to the auction sale held in the aforementioned mortgage suit, but according to the said learned court as by reason of the deed of mortgage the mortgager had mortgaged his entire 5 Anna 4 pies share to the property in question, the presumption of entry in the record of rights in the name of the defendants predecessor in interest would not stand in the way of plaintiffs. 18. In the instant case, from the pleading of the parties as also from the findings of the learned courts below, it is evident that a serious disputed question of possession of there lands by the plaintiffs existed at all material times. 19. In paragraph 8 of the plaint, the plaintiffs admitted that Durga Nath Missir initiated criminal proceeding against the partners of the plaintiffs complaining disturbance of his possession over the said lands in the year 1951 and 1953. However, in the said criminal trials the accused persons were acquitted. In paragraph 9 of the plaint, also the plaintiffs categorically stated that the said Durga Nath had been creating evidence for showing his title and possession in respect of the plots in suit. 20. There cannot, therefore be any doubt that the predecessor in interest of the defendant no. 4 – appellant had thus been claiming possession in respect of the suit land in question. It may be mentioned here that in respect of plots no. 20. There cannot, therefore be any doubt that the predecessor in interest of the defendant no. 4 – appellant had thus been claiming possession in respect of the suit land in question. It may be mentioned here that in respect of plots no. 423 and 425 the plaintiff also had filed a suit for declaration of title and permanent injunction, which was registered as Title Suit No. 67 of 1951 of the court of Munsif, Ranchi and the said suit was decreed on 3.9.1951. Therefore it is evident that in support of the plaintiff claim of possession there was no earlier adjudication by any competent court of law. The defendant no. 4 had according to the learned courts below questioned the title of the plaintiffs not only in Revenue Court. 21. Further the question as to whether the plaintiffs or the predecessors in interest of the defendant no. 4 were in possession of the properties in suit or not was the subject matter of various criminal cases also. The finding of a criminal court with regard to the possession of a party either in course of a criminal trial or in course of a proceeding under section 144 of the Code of Criminal Procedure as alleged by the plaintiffs was not and could have been conclusive. The civil courts in the fasts and circumstances of this case was thus called upon to adjudicate upon the respective pleas of the parties in respect of their respective claim of possession over the suit land. 22. It is now well settled that the object of proviso to section 34 of the Specific Relief Act, 1963 which is equivalent to section 42 of the Specific Relief Act, 1877 is to avoid multiplicity of the proceeding and where further relief flowing from right and title plaintiff seeks declaration in the suit may be prayed for, normally he should ask for such a relief along with the prayer for declaration of title. 23. However, it is also well known that if a party is in possession of the land suit, he need not seek for any consequential relief. In the instant case, both the courts below have concurrently found that the plaintiffs had been in possession of the land in question. The finding of the learned lower appellate court in short are as follows :- (a) The area mentioned in the deed of mortgage (Ext. In the instant case, both the courts below have concurrently found that the plaintiffs had been in possession of the land in question. The finding of the learned lower appellate court in short are as follows :- (a) The area mentioned in the deed of mortgage (Ext. 13) had no basis and the sale deed was to mortgage the entire area and the same come in possession of the mortgagee. (b) The delivery of possession in respect of the property in question in the execution case was presumed to have been effected in accordance with the auction sale i.e. over the entire share of the mortgage in question. (c) As the entire area was subject matter of the auction sale the mortgager had no right to make any grant in favour of his step mother. (d) Presumption of the correctness by the entry in the survey records of right dose not stand in the way of the plaintiff who have come forward with the case that the mortgagees step mother (Amrit Kuer) had never come in possession of Khewat No. 35 at all. The transaction by way of the deed of maintenance was probably done by Durga Nath Missir for creating circumstances and document sowing possession of the land in Khewat No. 35 in favour of the step mother and thus for showing that the plaintiffs not be in possession of the same. (e) Evidence adduced on behalf of the defendants is not reliable and the circumstances show possession of the plaintiff ever the land in suit. The trial court in its judgment after taking into consideration both oral and documentary evidences also came to the conclusion that after the death of Amrit Kuer the plaintiffs came in possession of the properties in question. 24. True it is that the plaintiffs did nit plead in the plaint that the suit property was resumed by them after the death of Amrit Kuer, the maintenance holder but there cannot be any doubt from the findings of both the courts below and as mentioned hereinbefore that the plaintiffs have been in possession after the death of Amrit Kuer as also on the date of institution of the suit. This finding of the courts below with regard to the possession of the plaintiffs is a finding of fact and thus binding upon this Court in second appeal. 25. This finding of the courts below with regard to the possession of the plaintiffs is a finding of fact and thus binding upon this Court in second appeal. 25. Further nothing has been brought to may notice to show that such finding was either perverse or was arrived at without taking into consideration the relevant document or oral evidences adduced on behalf of the parties. 26. Mr. N.K. Prasad, however placed strong reliance upon a decision of the Supreme Court in Jugraj Singh Vs. Juswant Singh. 27. However, the said decision was rendered absolutely in a different situation and different sets of facts. In the said decision it was held that the plaintiffs in the facts and circumstances of that case could have prayed for an injunction along with the prayer for cancellantion of the order passed by the Collector, as in the said suit plaintiffs thereof had prayed only for a negative declaration. In paragraph 11 of the judgment the Supreme Court clearly held as follows :- “In deed they had only to ask the setting aside of the order” This decision is, therefore not an authority for the possession that a plaintiff, who is in possession of the suit property will still have to pay further/consequential relief in terms of proviso to section 34 of the Specific Relief Act, 1963. 28. However in the instant case, as mentioned hereinbefore, the parties proceeded on the basis that they are in possession of the property in question. In paragraph 6 of the plant the plaintiff categorically stated that the aforementioned Durga Nath Missir executed the said purposed deed of maintenance holder, Amrit Kuer, in fact never came in possession thereof. 29. The trial court as noticed hereinbefore came to the definite finding that the plaintiff were found to be in possession of the property in question even after the death of Amrit Kuer. In this connection the written statement of defendant no. 4 may also be considered. In paragraph 10 of his written statement the defendant no. 4 admitted that verbal grant was made to the defendant no. 4’s father to the full knowledge of the plaintiffs and their ancestors. It has also been admitted in paragraph 12 of the written statement that Durga Nath Missir, the appellants father instituted a partition suit being partition Suit no. In paragraph 10 of his written statement the defendant no. 4 admitted that verbal grant was made to the defendant no. 4’s father to the full knowledge of the plaintiffs and their ancestors. It has also been admitted in paragraph 12 of the written statement that Durga Nath Missir, the appellants father instituted a partition suit being partition Suit no. 73 of 1946 for partition and separation of the area purchased by Digshwer Nath Tiwary in the court auction from rest of his area comprised within the interest, which was decreed but the said suit was ultimately dismissed for non-payment of court fee. 30. It is, therefore clear that even the father of the defendant no. 4’s case was that there was unity of title or possession in respect of the property in question by and between himself and the plaintiffs and/or their predecessor in interest. The defendant no. 4appecllant, however in spits of his full knowledge of dismissal of the said for partition did not come forward to file a fresh suit for partition or for getting his declared by instituting a proper suit as against the plaintiffs. 31. In this view of the matter, there cannot be any doubt that in view of court auction sale held in the aforementioned execution case having been found to be valid and they having been found to be in possession of the property in question, the suit filed by them cannot be dismissed either on the ground that the same is barred under the proviso to Section 34 of the Specific Relief Act, or for the reasons that the plaintiffs have not pleaded resumption of property granted to Amrit Kuer by way of maintenance after her death. 32. In Pratap Narsin Das and another Vs. Sri Krishna Chandra and others it has been held that where a could has been thrown on the defendant but there is no evidence to show that the plaintiff was even dispossessed by any Act, of the defendants suit for a mere declaration of title without any further relief is maintainable. Such suit is not barred by the fact that the defendant interfered with the possession is not necessarily dispossession. 33. Taking, thus, all facts and circumstances into consideration, I am of the view that both the substantial question of answered against the appellants and in favour of the respondents. 34. Such suit is not barred by the fact that the defendant interfered with the possession is not necessarily dispossession. 33. Taking, thus, all facts and circumstances into consideration, I am of the view that both the substantial question of answered against the appellants and in favour of the respondents. 34. In the result, these is no merit in this second appeal and it is accordingly dismissed, with costs. Appeal dismissed.