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Madhya Pradesh High Court · body

2013 DIGILAW 721 (MP)

Gajadhar Ahirwar v. Kishori Kushwaha

2013-06-28

N.K.GUPTA

body2013
ORDER 1. Heard on admission. 2. The learned Civil Judge, Class-II, Nowgaon, District Chhatarpur vide judgment and decree dated 28.4.2007 dismissed the suit No.24-A/97 filed by the appellant, whereas the suit was filed for declaration and injunction. The civil appeal No.37A/2009 filed by the appellant was also dismissed by the learned First Additional District Judge, Nowgaon, District Chhatarpur vide judgment and decree dated 8.4.2009. Being aggrieved with the aforesaid decrees and orders, the appellant has preferred the present appeal. 3. The appellant has submitted a suit before the trial Court that he purchased a land of survey No. 310 having area 0.551 Hecters of Mauja Dharampura, Tahsil Nowgaon, District Chhatarpur on 8.3.1999 from the respondent No.1. Sale deed was registered and possession was given. Sold land was a plot bearing area 40 X 60 feet. On 25.1.1997, when the appellant/plaintiff started to construct plinth on the plot then, the respondents No.2 and 3 objected. On enquiry, it was found that the respondent No.1 had already resold the same land to the respondents No. 2 and 3 and therefore, the appellant/plaintiff has moved a suit for declaration of his title and perpetual injunction against the respondents No. 2 and 3. 4. The respondent No. 1 in his written statement has submitted that he sold the remaining land to the respondents No. 2 and 3 but, thereafter, it appears that the respondents No. 2 and 3 got the mutation of the entire land. 5. The respondents No. 2 and 3 have pleaded in their written statement that the entire land of Survey No. 310 and 300 was sold by the respondent No. 1 to them and they got the possession accordingly. The plaintiff was not in possession and therefore, declaratory decree cannot be given. 6. The trial Court has found that the alleged sale took place between the applicant/plaintiff and the respondent No. 1. However, the suit for declaration cannot be decreed in absence of any consequential relief. The appellate Court has also dismissed the appeal. 7. On considering the submissions made by the learned counsel for the appellant, it is apparent that the sale deed was executed by the respondent No.1 for a plot of 40 X 60 square feet in favour of the appellant. However, the concerned sale took place in March, 1989 and the appellant could not keep the possession with him thereafter. 7. On considering the submissions made by the learned counsel for the appellant, it is apparent that the sale deed was executed by the respondent No.1 for a plot of 40 X 60 square feet in favour of the appellant. However, the concerned sale took place in March, 1989 and the appellant could not keep the possession with him thereafter. The appellant received a smaller potion of survey No. 310 and therefore, he should have received the possession of the suit land after partition, whereas the respondent No. 1 sold the remaining land of survey No. 310 and land of survey No.300 to the respondents No. 2 and 3 and they occupied the land. The land purchased by the appellant was a very small portion of land and therefore, its possession could not be obtained unless a partition was applied by the appellant before the revenue authority. It appears that no such partition took place and the appellant was notionally in joint possession with the respondent No. 1. However, when the land was sold by the respondent No. 1 to the remaining respondents, the entire possession was given to the respondents No. 2 and 3. It was not informed to the respondents No. 2 and 3 that a small piece of land was sold to the appellant and therefore, it is apparent that the appellant could not get any possession of the disputed land after the sale. 8. Both the Courts below have rightly held that the appellant did not have any possession on the suit land. Consequently, it was for him to file a suit for declaration and possession. It is true that he purchased the land from the respondent No.1 but, no declaratory decree could be given by any of the Courts if no consequential relief was sought. The trial Court has rightly mentioned in its judgment that in want of consequential relief, according to the provisions of section 34 of the Specific Relief Act, 1963, no declaratory decree can be given. It was for the appellant to amend his plaint during the pendency of the first appeal and he should have modified his plaint that he prays for a consequential relief of possession but, no such amendment has been done by the appellant. It was for the appellant to amend his plaint during the pendency of the first appeal and he should have modified his plaint that he prays for a consequential relief of possession but, no such amendment has been done by the appellant. Under such circumstances, where the appellant was not in possession and he only applied for the declaratory decree, without any consequential relief, which could not be given to the appellant, therefore, his suit could not be decreed. 9. On the basis of the aforesaid discussion, there is no basis by which the second appeal filed by the appellant can be accepted. Consequently, it is hereby dismissed at motion stage. 10. A copy of the order alongwith appellate decree (if any) be sent to both the Courts below along with their records for information.