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1998 DIGILAW 420 (MAD)

MUNISAMY v. MANIMUTHU ACHARI

1998-03-16

M.KARPAGAVINAYAGAM

body1998
Judgment : M. KARPAGAVINAYAGAM, J. ( 1 ) THE first defendant before the trial court, who has lost in both the courts, has presented this second appeal. ( 2 ) THE plaintiff, the first respondent herein filed a suit for declaration of title to the suit property and for permanent injunction restraining the defendants from interfering with the plaintiffs peaceful possession and enjoyment of the same. ( 3 ) THE trial court, on consideration of the materials, decreed the suit with reference to the title to the suit property, but rejected to grant the relief of permanent injunction holding that the defendants 1 to 3 have been in possession of the suit property even prior to suit. ( 4 ) AGGRIEVED over the judgment and decree of the trial court, both the parties filed separate appeals before the lower appellate court in A. S. Nos. 214 of 1982 and 143 of 1983. These appeals were dismissed by the lower appellate court confirming the judgment and decree of the trial court. ( 5 ) THE case of the plaintiff is this:-The plaintiff purchased the property from the 7th defendant by a sale deed dated 30. 7. 1997. After he took possession of the property he started levelling the same. At that time, the defendants 1 to 3 resisted it and disturbed his possession. Therefore, the plaintiff filed the suit seeking for the two reliefs as referred above. ( 6 ) THE case of the first defendant is that the suit property was originally possessed and enjoyed by the first defendants father and that subsequent to his death, his children divided the same among themseleves and such they have been in continuous possession and enjoyment for over 30 years. ( 7 ) THE case of the 7th defendant is that the property originally belonged to one Divan manicka Kandappa Mudaliar from whom he purchased it by a valid sale deed and he had sold the property to the plaintiff and handed over the possession to him. ( 8 ) THE trial court and lower appellate court on consideration of the evidence on record, held that the plaintiff is the absolute owner of the suit property declaring his title to the suit property. With reference to the permanent injunction sought for by the plaintiff, his plea was rejected by both the courts below. ( 8 ) THE trial court and lower appellate court on consideration of the evidence on record, held that the plaintiff is the absolute owner of the suit property declaring his title to the suit property. With reference to the permanent injunction sought for by the plaintiff, his plea was rejected by both the courts below. As against this finding there is no second appeal on behalf of the plaintiff. With reference to the claim of title, the finding of both the courts below, is being challenged before this court in this second appeal by the first defendant. ( 9 ) MR. P. Manoharan, learned counsel appearing for the appellants, would elaborately contend that both the courts below have miserably failed to consider various questions of law raised in this case. According to him, the first respondent/plaintiff having come to the court with the false plea regarding possession, cannot be shown any indulgence by the courts below by granting the declaration of title. ( 10 ) IT is also contended by showing various authorities of this court as well as the other courts that mere claim for title cannot be permissible under law. He would further contend that the vital documents produced by the defendant, viz. , Exs. B1 to B5 and the evidence of D. Ws. 1 to 3 have not been considered by the courts below. ( 11 ) ON the other hand, Mr. Gopalakrishnan, learned counsel appearing for the respondents, in support and justification of the judgments of the courts below, would contend that both the courts below have considered both the oral and documentary evidence of both the parties and come to the factual conclusion that the plaintiff has proved his title, and as such, the concurrent finding given by the courts below, on consideration of the entire materials, may not be disturbed. ( 12 ) THE main argument advanced by the counsel for the appellants is that mere declaration for title is barred under Section 34 of the Specific Relief Act. In support of the said submission, he cited the decision in Vinay krishna v. Keshav Chandra. According to this decision, the plaintiff cannot claim mere decree for declaration without seeking such other consequential reliefs. He also cited the decisions in Anirudha Padhan v. Chhai padhan2 and Dunia Lal v. Nagendra Nath. In support of the said submission, he cited the decision in Vinay krishna v. Keshav Chandra. According to this decision, the plaintiff cannot claim mere decree for declaration without seeking such other consequential reliefs. He also cited the decisions in Anirudha Padhan v. Chhai padhan2 and Dunia Lal v. Nagendra Nath. These decisions also would hold that the proviso to Section 34 forbids a suit for a mere declaration without further reliefs. ( 13 ) SECTION 34 of the Specific Relief Act provides thus:-"discretion of court as to declaration of status or right.-Any person entitled to any legal character, or to any right as. to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief; provided that no court shall make any such declaration where the" plaintiff. being able to see further relief than a mere declaration of title, omits to do so. " ( 14 ) IN the instant case, the suit has been filed not only for a mere declaration of title. but also for the permanent injunction. As per the proviso to Section 34, the court cannot give any such declaration in a case where the plaintiff could seek further relief than a mere declaration of title. The object of the proviso is to avoid multiplicity of suits and to prevent a person from getting a mere declaration of his rights in one suit and to resort to another for another remedy which is already available to him. ( 15 ) IN the instant case, the case of the plaintiff is that he is the owner of the land which was purchased from the 7th defendant and he took possession from him. 7th defendant also supported this plea. Therefore, he has claimed not only declaration of title, but also permanent injunction stating that his possession was disturbed. As such, the decisions cited by the learned counsel for the appellant would not be applicable to the present facts of this case, especially when he has sought for other reliefs also. 7th defendant also supported this plea. Therefore, he has claimed not only declaration of title, but also permanent injunction stating that his possession was disturbed. As such, the decisions cited by the learned counsel for the appellant would not be applicable to the present facts of this case, especially when he has sought for other reliefs also. ( 16 ) AS held in AIR 1981 Orissa 74 (supra) the object of the proviso to Section 34 is to protect the revenue from having a suit brought without the proper ad valorem Court-fee having been paid Court-fee for a mere declaration is a nominal fee whereas if consequential relief is asked for, it would be ad valorem. ( 17 ) FROM a reading of the object of the proviso along with the main section, it is evident that the further relief contemplated in the proviso is a relief which was available to the plaintiff at the time of institution of the suit and which he omitted to ask for. The further relief as provided in the proviso must be a relief in relation to the legal right as to property which the plaintiff is entitled to. This must also be a relief appropriate to and necessarily consequent on the right asserted. ( 18 ) !n the present case, the plaintiff has not claimed a bare declaration of title. He has claimed a further relief by way of permanent injunction. This would show that he has also paid ad valorem Court-fee on the plaint. Therefore, 1 am not able to accept the contention of the counsel for the appellant, in view of the above reasons. ( 19 ) AS pointed out by the counsel for the respondents, the plaintiff produced documents to show that he purchased the suit property from the 7th defendant, who had also filed a written statement supporting his plea and these materials have been considered by both the courts below to hold that the plaintiff is the owner of the suit property. ( 20 ) MOREOVER, in the judgments rendered by both the courts below, there is an elaborate consideration about the evidence of d. Ws. 1 to 3 and Exs. B1 to B5 and there is also clear reasoning given in those judgments for not accepting the plea of the first defendant with reference to the prescribed title. ( 20 ) MOREOVER, in the judgments rendered by both the courts below, there is an elaborate consideration about the evidence of d. Ws. 1 to 3 and Exs. B1 to B5 and there is also clear reasoning given in those judgments for not accepting the plea of the first defendant with reference to the prescribed title. ( 21 ) THEREFORE, in this second appeal, in the absence of any substantial question of law, 1 do not find any reason as to warrant interference in the finding of fact arrived at by the courts below. ( 22 ) IN the result, the second appeal is dismissed and no order as to costs. Appeal dismissed.