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2001 DIGILAW 439 (PAT)

Ram Nandan Prasad v. Ram Silas Yadav

2001-05-16

S.K.KATRIAR

body2001
JUDGMENT S.K. KATRIAR, J. The plaintiffs are the appellants against a judgment of reversal. This appeal is directed against the judgment dated 30.1.1997, and the consequential decree, passed by learned Additional District Judge V, Aurangabad, in Title Appeal Nos. 33 of 1989/9 of 1992/26 of 1996 (Ram Silas Yadav vs. Ram Nandan Prasad & another), whereby he has set aside the 'judgment dated 11.4.1989, and the decree dated 21.4.1989, passed by learned Additional Munsif III, Aurangabad, in Title Suit No. 48 of 1983/57 of 1989 (Ram Nandan Prasad & another vs. Ram Bilas Yadav). The learned Munsif had decreed the suit, declared the title and possession of the plaintiffs, and permanently injuncted the defendant from going upon the disputed properties. Hence the plaintiffs appeal. We shall go by the description of the parties in the trial court. 2. This suit was originally brought against the sole defendant in respect of 14 acres of land bearing plot no. 45, khata no. 41, of village Teterya, P.S. Nabinagar, district Aurangabad. The suit was dismissed vide judgment dated 25.6.84, by the learned Munsif, Aurangabad. The plaintiffs preferred Title Appeal No. 40/84 in the court of District Judge, Aurangabad. That appeal was allowed by judgment dated 30.5.88, the judgment and the decree of the trial court was set aside, and the matter was remitted back with the direction to decide the suit afresh according to law. As per statement in para 9 of the written statement, the defendant's interest was limited to 2.37 1/2 acre of the suit land, and others had interest in the remaining lands. The matter was, therefore, remitted back to the trial court, inter alia, with the direction to imp-lead such other persons as parties in the suit. However, the plaintiffs caused an amendment of the plaint and confined their relief to the said 2.37 1/2 acres claimed by the defendant, and reduced the suit land from 14 acres to 2.37 1/2 acres. The parties were given fresh opportunity to adduce evidence, who availed of the same, and brought fresh evidence on record. The trial court decreed the suit in favour of the plaintiffs. The defendant appealed. 3. Briefly speaking the case of the plaintiffs is that the suit land was part of the zamindary of Maharaj Captain Gopal Sharan Narain Singh, and he was after on his death succeeded by Kumar Fateh Narain Singh a son of Late Maharaj. The trial court decreed the suit in favour of the plaintiffs. The defendant appealed. 3. Briefly speaking the case of the plaintiffs is that the suit land was part of the zamindary of Maharaj Captain Gopal Sharan Narain Singh, and he was after on his death succeeded by Kumar Fateh Narain Singh a son of Late Maharaj. The suit plot was Gairmajurua Malik land and belonged to, and was in possession of, Kumar Fateh Narain Singh. He sold 14 acres of land bearing plot no. 45, khata no. 41, to Kailashpati Bairagi on 1.8.70 by registered sale deed, and the purchaser came in possession. On 31.7.71, the said Kailashpati Bairagi sold the entire land to the plaintiffs by two registered deeds of absolute sale. They came in possession of the lands by virtue of these sale deeds, and they have been in cultivating possession of the same since they purchased on 31.7.71. The plaintiffs applied for mutation. The revenue authorities found the plaintiffs in possession and accordingly submitted their report recommending mutation in favour of Kailash Bairagi, which was done in the year 1978, and the plaintiffs have been paying rent and getting rent receipts. 4. According to the further case of the plaintiffs, they learnt that the defendant had brought into existence sale deeds dt.13.8.70 through which he purported to have purchased 2.37 1/2 acres of land out of plot no. 45. The sale deeds of the plaintiffs were executed and acted upon prior to 13.8.70. The sale deeds dt.13.8.70 (correct date 18.8.70, but wrongly typed as 13.8.70 in the plaint) executed in favour of the defendant are not genuine and valid documents and have been fabricated. The vendor (Kumar Fateh Narain Singh) having already alienated his right, title, and interest including possession in favour of the vendor of the plaintiffs (Kailashpati Bairagi) had got no saleable interest or right left with him in survey plot no. 45, and the subsequent sale deeds executed by him on 13.8.70 (correct date 18.8.70) are illegal, void ab initio and created no interest in favour of the defendant. The defendant never came in possession of the land purported to have been acquired by him though the said two sale deeds. The cause of action arose when the defendant tried to interfere with the possession of the plaintiffs on 1.3.83. The defendant never came in possession of the land purported to have been acquired by him though the said two sale deeds. The cause of action arose when the defendant tried to interfere with the possession of the plaintiffs on 1.3.83. Hence this suit, on payment of two court fees, one for declaration of title, and the other for permanent injunction. 5. The defendant's case as set out in the written statement, inter alia, is that the suit is hit by section 34 of the Specific Relief Act as well as and by section 4(b) and 4(c) of Bihar Consolidation of Holdings and Prevention of Fragmentation Act. The suit is bad for non-joinder of necessary parties. The original suit properties had been alienated in portions to different purchasers who had not been imp-leaded as party defendants. 2.37 1/ 2 acres had been transferred in favour of the defendant by two registered safe deeds. They are in possession of their respective lands. Their names stand recorded in the revenue section of Anchal Officer. They are paying rent in lieu of receipts. After remand, the plaintiff amended the plaint and confined the relief to the said 2.37 1/2 acres claimed by the defendant and, therefore, did not make prayer for imp-leading those persons as party defendants to the suit. 6. The defendant's further case is that the sale deeds in favour of Kailashpati Sairagi is sham, showy and Farzi, and the plaintiffs were never in possession of the lands, and the lands had never been mutated in their favour. 7. The learned Munsif framed the following issues: (1) Is the suit, as framed, maintainable? (2) Have the plaintiffs got valid cause of action? (3) Is the suit barred by law of limitation and adverse possession? (4) Can it be declared that the plaintiffs are Raiyat of the suit land and can an order of permanent injunction be passed against the defendant restraining him from interfering with the possession of the plaintiffs? (5) Are the plaintiffs entitled to any other relief? 8. It is relevant to state that the learned Munsif had in the earlier round of litigation, i.e. before the order of remand, frail ed the following three issues also but were given up in the second round of the contest, and no objection was raised by the defendant. (5) Are the plaintiffs entitled to any other relief? 8. It is relevant to state that the learned Munsif had in the earlier round of litigation, i.e. before the order of remand, frail ed the following three issues also but were given up in the second round of the contest, and no objection was raised by the defendant. However, the learned court of appeal below has added the following three issues in the impugned judgment:- (i) Is the suit under-valued and beyond the pecuniary jurisdiction of the trial court? (ii) Is the suit hit by section 34 of the Specific Relief Act? (iii) Is the suit hit by the provisions of Consolidation of Holding and Prevention of Fragmentation Act? 9. While assailing the validity of the impugned judgment, learned counsel for the appellants submitted that both the courts have concurrently found that the plaintiffs has the title of the suit property. The trial court held that the defendant was not in possession of the suit land, meaning thereby by necessary implication that the plaintiffs are in possession, whereas the learned court of appeal below held that the plaintiffs are not in possession and has erroneously dismissed the suit in terms of Section 34 of the Specific Relief Act, 1963 (hereinafter referred to as 'the Act'). It has been further submitted that in a suit for declaration of title coupled with the relief for permanent injunction, the latter would be treated to be consequential relief within the meaning of Section 34 of the Act. Therefore, in the facts and circumstances of the present case, the learned court of appeal below ought to have molded the relief and granted the consequential relief of recovery of possession. He has submitted that law is well settled that the reliefs can be suitably molded in the light of pleadings of the parties and the evidence on record. He next submitted that objection of Section 34 of the Act has to be taken at the earliest opportunity so that the plaintiffs can amend the plaint suitably. No such objection was raised in terms of Order 14, Rule 2 of the Code of Civil Procedure (hereinafter referred to as 'the Code') before the trial court. Therefore, the plea of Section 34 of the Act was not available to the defendant at the appellate stage or the present stage. No such objection was raised in terms of Order 14, Rule 2 of the Code of Civil Procedure (hereinafter referred to as 'the Code') before the trial court. Therefore, the plea of Section 34 of the Act was not available to the defendant at the appellate stage or the present stage. It was also submitted that this issue was framed by (he trial court before the judgment of remand, but that is of no consequence in view of the judgment of remand, because that judgment had been set aside, and no such objection was raised before the trial court after the remand order dated 3.5.88. (sic) was next submitted that the plaintiffs case as set out in the plaint is that they have although been in possession. He has also contended that the finding of fact recorded by the learned court of appeal below to the effect that the plaintiffs have not been in possession is' unsatisfactory, verging on perversity. The same is erroneous and merely inferential. He has not actually found that the plaintiffs have not been in possession. He has invited my attention to the averments made in paragraphs 8 and 10 of the plaint. 10. Learned counsel for the defendant respondent has submitted in support of the impugned judgment that the trial court had erroneously held that the defendant was not in possession, which has been corrected by the learned court of appeal below and has found that the plaintiffs are not in possession. This finding is not inferential but on the basis of appreciation of the entire materials on record. It was next submitted that the question of non-framing of the issue in terms of sec. 34 of the Act has been corrected by the learned court of appeal below and he has incorporated this issue and recorded a clear finding. He has also submitted that this objection was clearly taken in paragraphs 7 and 9 of the written statement. It was next submitted that the objection raised in terms of Section 34 of the Act was agitated in the first round of the contest before the learned Munsif, but was wrongly omitted by him in the second round. He also submitted that the relief in terms of Sec. 34 of the Act is discretionary, and the court in its discretion may refuse to exercise this power in favour of one or the other. He also submitted that the relief in terms of Sec. 34 of the Act is discretionary, and the court in its discretion may refuse to exercise this power in favour of one or the other. Law is well settled that if such a relief has been declined by the court below, then the High Court in exercise of its second appellate jurisdiction should not interfere with the, discretion exercised by the learned court of appeal below. He has relied upon the judgment of the Supreme Court reported in AIR 1953 SC 228 (Namdeo VS. Narmadabai). 11. The first and the foremost question which arises for consideration is whether or not the suit is hit by the provisions of Section 34 of the Act. The same reads as follows:- "34. 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 seek further relief that a mere declaration of title, omits to do so. Explanation.-A trustee of property is a "person interested to deny", a title adverse to the title of someone• who is not in existence, and for whom if in existence, he would be a trustee." 12. It appears to me that law is well settled that in a suit for declaration of title along with the relief for permanent injunction is a suit with a consequential relief, and is not a suit for declaration simpliciter. A prayer for injunction is one for further relief, and suit for declaration with prayer for injunction as further relief is maintainable. It was so held in the judgment of the Gauhati High Court reported in 1986(2) Gauhati Law Reports, page 55 (Kalpana Chakravorty vs. Milan Ehaduri. The Division Bench judgment of the Patna High Court reported in AIR 1950 Patna 89 (Bundi Singh vs. Shivnandan Prasad) also raised similar issues in relation to Section 42 of the Specific Relief Act, 1877, which is in Pari Materia with Section 34 of the present Act. The Division Bench judgment of the Patna High Court reported in AIR 1950 Patna 89 (Bundi Singh vs. Shivnandan Prasad) also raised similar issues in relation to Section 42 of the Specific Relief Act, 1877, which is in Pari Materia with Section 34 of the present Act. It has been held as follows in paragraph 6 of the judgment:- "6. With regard to S.42, Specific Relief Act, I think the suit was not bad, because the plaintiff did actually ask for the consequential relief which was appropriate to the pleadings. Maintaining that he was still in possession, he asked as a consequential relief that the defendant should be restrained from interfering with his possession. He could not ask for recovery of possession if he did not concede that he had been dispossessed. But then it is urged that a decree for recovery of possession could not be passed on the pleadings. The answer to this is to be found in O.7, R.7, Civil P.C. It is true it has been held that under 0.7, Rule 7, a relief cannot be given which is inconsistent with the plaintiff's case and the reliefs actually asked for. But, in my opinion, the inconsistency in this case was not of a type which would bar the application of 0.7, R.7. A perusal of the judgment of the final court of fact shows that the finding of defendant's possession was merely a finding that the defendant had got himself recorded in Register D and had realized rents from at least some of the tenants. It was not inconsistent with the plaintiff's contention that he also had been realizing some rents. Therefore, the question of possession was one upon which two views were possible. It would be a question of degree whether the realization of rents by the defendant had been on such a scale as to amount to complete dispossession of the plaintiff. This being so, the finding, having regard to its nature, is consistent with the plaintiff's case being honest and bona fide since the plaintiff might have honestly considered that technically he was still in possession and that a declaration and injunction was the appropriate remedy. This being so, the finding, having regard to its nature, is consistent with the plaintiff's case being honest and bona fide since the plaintiff might have honestly considered that technically he was still in possession and that a declaration and injunction was the appropriate remedy. In such circumstances, it would, in my opinion, be stretching technically too far to hold that 0.7 R.7 could not be applied, and so to deny to the plaintiff the relief to which he was actually found entitled by the Court." 13. Learned counsel has rightly relied on the judgment of the Supreme Court reported in AIR 1961 SC 808 (Mohd. Yunus vs. Syed Unnissa), which also related to Section 44 (sic-42?) of the Specific Relief Act, 1877. The Supreme Court has held as follows in paragraph 6 of the judgment: "(6) In our view, the suit as framed was maintainable. The management of the institution is vested in the trustees. The four families, it is true, are by tradition entitled to perform and officiate at certain ceremonies and also to share in the income. A suit for declaration with a consequential relief for injunction, is not a suit for declaration simpliciter; it is a suit for declaration with further relief. Whether the further relief claimed in a particular case as consequential upon a declaration is adequate must always depend upon the facts and circumstances of each case. In Kunj Behari Prasadji vs. Keshavlal Hiralal, ILR 28 Bom 567, it was held that S. 42 of the Specific Relief Act does not empower the court to dismiss a suit for a declaration and injunction and that an injunction is a further relief within the meaning of S. 42 of the Specific Relief Act. In that case, the plaintiff had claimed that a certain will was null and void and that being a close relative of the last holder of a gadi, he was entitled to be the Acharya in the place of that last holder and for an injunction restraining the defendants from offering any obstruction to his occupation of the gadi. It was held that such a suit was maintainable." 14. Law is thus well settled that a suit for declaration of title with the further relief of permanent injunction against the defendant is a suit with consequential reliefs and, therefore, is not hit by the provisions of Section 34 of the Act. It was held that such a suit was maintainable." 14. Law is thus well settled that a suit for declaration of title with the further relief of permanent injunction against the defendant is a suit with consequential reliefs and, therefore, is not hit by the provisions of Section 34 of the Act. In the present case, the plaintiffs prayed for declaration of title and permanent injunction restraining the defendant from going on the suit land and from disturbing their possession. It is this suit with the prayer for consequential relief and is not hit by the provisions of Section 34 of the Act. 15. This takes me on to the next important question which arises in this appeal. The trial court granted the relief of declaration of title as well as permanent injunction against the defendant, which have been affirmed by the learned court of appeal below, but has allowed the appeal and dismissed the suit on the ground that the consequential relief of recovery of possession not having been prayed for the same is hit by the provisions of Section 34 of the Act. I do not agree with this part of the impugned judgment. As has been held by this Court in Bundi Singh vs. Shivnandan Prasad (supra), the answer is to be found in Order 7, rule 7, CPC, and the Court can grant appropriate reliefs by molding the relief if the same arises out of the pleadings of the parties and on the basis of the evidence on record. I have held as follows in my judgment reported in 2000(2) PLJR 68 (M/s. Elite Engineering Co. vs. Bihar State Electricity Board):- "16. Counsel for the Board has also contended that in view of the limited prayer made in the writ petition, seeking quashing of the impugned order alone, it is not open to the petitioner to seek direction to the Board to release payment of the 15 sets already received, and for the further direction commanding the Board to accept supply of the balance 15 sets. I am unable to accede to the contention for the reason that laws well settled that the language in which the formal portion of the prayer portion of the writ petition in couched does not determine the nature of reliefs to be granted by the court. I am unable to accede to the contention for the reason that laws well settled that the language in which the formal portion of the prayer portion of the writ petition in couched does not determine the nature of reliefs to be granted by the court. If the reliefs being sought emanate from the facts stated in the writ petition, nay the pleadings of the parties, then appropriate relief cannot be withheld on account of the failure the part of the petitioner to make a formal prayer in that behalf. That would be pilling unreason upon technicality. Reference may be made to the judgments reported in AIR 1943 Patna 305 (Babu Lal Ray vs. Bindhyachal Ray), AIR 1952 SC 47 (Kedar Lal Seal vs. Hari Lal Seal) and AIR 1956 SC 593 (Nagubhai Ammal vs. B. Shama Rao). This Court is in doubt that the said reliefs sought for in the present case do emanate from the pleadings of the parties. The facts averred in the writ petition, the documents annexed thereto, the counter affidavits, the rejoinder, and the further affidavits make it abundantly, clear that the parties have been alive to these issues, and have been effectively thrashed during the course of oral arguments. The Board's contention is, therefore, rejected." 16. I must record a note of caution that this judgment was rendered under Article 226 of the Constitution of India, but the judgments relied on related to suits. It has been held as follows in the case of Babu lal Ray vs. Bindhyechel Rai, reported in AIR 1943 Patna 305 (supra) :- "In prayer (1) they asked for "a decree in respect of the said charge". Thus the plaintiffs were really seeking to enforce payment of money charged on the property covered by the mortgage decree. In other words, they were really seeking to enforce the right of subrogation. They however split up the mortgage and claimed contribution from the defendants in proportion to the quantity of lands in their respective possession. This was rather to the advantage of the defendants. When necessary facts are stated in the plaint which, if established, entitle the plaintiffs in law to obtain certain reliefs, it is open to the Court to grant them such reliefs, although the reliefs specifically asked for may be inartistically framed. This was rather to the advantage of the defendants. When necessary facts are stated in the plaint which, if established, entitle the plaintiffs in law to obtain certain reliefs, it is open to the Court to grant them such reliefs, although the reliefs specifically asked for may be inartistically framed. In this case the facts asserted by the plaintiffs, which would entitle them in law to the right of subrogation, are not disputed. It is therefore open to the Court to grant them appropriate reliefs on the basis of subrogation." 17. It is, therefore, possible to mould the relief in appropriate cases provided the necessary facts are stated in the plaint which, if established, entities the plaintiffs in law to obtain certain reliefs. Its open to the court to grant them such reliefs although the reliefs may not have been appropriately framed. In the present case, it was clearly stated in paragraphs 4, 8 and 10 of the plaint that the plaintiffs have although been in possession of the suit land and the defendants never had possession of the same. On the other hand, the defendants stated in the written statement that they have purchased the suit land by virtue of the sale deeds dt.13,8.1970, they have come in possession of the suit land. The parties were, therefore, from the inception at loggerheads on the question of possession and had full opportunity of leading evidence in support of their respective cases. It was for this reason that the trial court dealt with the question of possession and held that the defendant never came in possession of the suit properties, and the learned court of appeal below for the same reason decided the question of possession and came to the conclusion that the plaintiffs were not in possession at the time of institution of the suit. I, therefore, conclude that the consequential relief of recovery of possession clearly emanates from the pleadings of the parties and the materials on record. The plaintiffs are, therefore, granted the relief for recovery of possession of the property from the defendants. 18. Learned counsel for the plaintiffs is right in submitting that the objection of Section 34 has to be taken at the earliest possible opportunity so that the plaintiffs have the opportunity to amend the plaint. The plaintiffs are, therefore, granted the relief for recovery of possession of the property from the defendants. 18. Learned counsel for the plaintiffs is right in submitting that the objection of Section 34 has to be taken at the earliest possible opportunity so that the plaintiffs have the opportunity to amend the plaint. It is no doubt true that the trial court had, in the first round of contest, framed one of the issues whether or not the suit is hit by Sec. 34 of the Act. After the remand order, the trial court was obliged to decide the suit afresh and in accordance with law and the observations made in the remand order. The issues were reframed and are set out in paragraph & hereinabove. The defendant did not file an application raising objection with respect to non-inclusion of the issue relating to Section 34 of the Act. Had it been done, the plaintiffs would have got opportunity of amendment of pleadings. Learned counsel for the appellants has, therefore, rightly relied on the following passage from S.C. Banerjee's Law of Specific Relief. (Tagore Law Lectures) Ninth Edition, Page 548: "Amendment-The court should not lay much stress upon defective plaint, or an ill-expressed prayer for relief. Where a claim is likely to fail, as 'further relief' has not been asked for, the court should be disposed to aid the plaintiff in affording him an opportunity to amend his plaint, though there can be no amendment, the result of which will be to convert a suit or one character into that of a different and inconsistent character, but the court must make all such amendments as may be necessary for the purpose of determining the real question in controversy between the parties. If, after an opportunity to amend the plaint has been given to the plaintiff, he fails to avail himself of that opportunity then there is no alternative but to refuse the declaration." 19. Learned counsel for the defendant has also submitted that it is not correct to state that the defendant had not raised the objection with respect to Sec. 34 of the Act which is manifest from para 12 of the impugned judgment which has reproduced the issues framed by the trial court. He further submits that this plea was specifically raised in paragraphs 7 and 9 of the written statement. He further submits that this plea was specifically raised in paragraphs 7 and 9 of the written statement. I am unable to accede to the submission for the reasons indicated in the preceding paragraphs hereinabove and would like to restate the same in different words. The fact that the issue relating to Sec. 34 of the Act was framed as a specific issue in the earlier judgment of the trial court was set aside by the appellate court, where after issues were re-framed as set out in paragraph 9 hereinabove which did not include this objection. The present judgment of the trial court was rendered on these five issues and, therefore, the learned counsel for the plaintiffs is right in submitting that the formal objection taken in the written statement was merely ornamental and was not intended to be pressed, nor was really pressed, in court. The plaintiffs did not have the opportunity to amend the plaint. The contention is, therefore, rejected. 20. Learned counsel for the defendant has lastly submitted that the power of the Court under Sec. 34 of the Act is discretionary, and the learned court of appeal below has exercised the discretion in favour of the defendant. This court in exercise of its second appellate jurisdiction should not interfere with the same. He has relied on paragraph 31 of the judgment of the Supreme Court reported in AIR 1953 SC 228 (Namdeo VS. Narmadabai). The contention is stated only to be rejected. These observations were made in an entirely different context and are wholly irrelevant to the facts and circumstances of the present case. 21. In the result, this appeal is allowed with costs although, the impugned judgment dated 30.1.97, passed by the learned Additional District Judge V, Aurangabad, in Title Appeal Nos. 33 of 1989/9 of 1992/26 of 1996 (Ram Bilas Yadav vs. Ram Nandan Prasad), is hereby set aside, and that of the trial court is restored. The suit is decreed, and the plaintiffs are granted the relief of declaration of title, of recovery of posses5ion if not in possession, and the defendant is permanently injected from going upon the suit property and from interfering with the peaceful possession and enjoyment of the suit property by the plaintiffs.