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2018 DIGILAW 341 (ORI)

Bhikari Pradhan v. Jagyasini Pradhan

2018-04-02

A.K.RATH

body2018
JUDGMENT : Dr. A.K. Rath, J. Defendants are the appellants against a reversing judgment. 2. Since the appeal is to be disposed of on a short point, the facts need not be recounted in detail. Suffice it to say that the plaintiff-respondent instituted the suit for declaration that the defendant no.3 is not the adopted son of defendant nos.1 and 2. Defendant nos.1, 2, 4 and 5 filed written statement denying the assertions made in the plaint. The specific case of the defendant nos.1, 2, 4 and 5 is that defendant no.3 is the adopted son of defendant nos.1 and 2. Defendant no.3 supported the case of other defendants. While the matter stood thus, the defendants filed an application under Order 14 Rule 2 C.P.C. to decide the maintainability of the suit as preliminary issue. According to the defendants, the suit is hit under Sec.34 of the Specific Relief Act and as such not maintainable. The plaintiff filed objection to the same. Learned trial court dismissed the suit with a finding that the suit is not maintainable. Feeling aggrieved, the plaintiff filed T.A. No.3 of 1984 before the learned Subordinate Judge, Bargarh. Learned appellate court came to hold that the suit is maintainable and remitted the matter back to the learned trial court for de novo hearing. Hence the second appeal. 3. The second appeal was admitted on the substantial questions of law enumerated in ground nos.2 and 3 of the appeal memo with reference to the decisions reported in AIR 1967 SC 436 , AIR 1959 SC 577 and AIR 1975 SC 1810 . The same are: “(2) For that in view of the settled principle of law that during the life time of the owner it is not open to the collaterals to challenge either the adoption said to have been made by them or the alienations said to have been made by them when the plaintiff has no legal right to the property and thus a suit cannot come within the scope of section 34 of the Specific Relief Act, the learned Subordinate Judge has committed grave error of law by holding that the suit in question is maintainable. (3) For that the learned Subordinate Judge has acted illegally by not accepting the decision as reported in A.I.R. 1952 Punjab Page-387 on the ground of the same being a thirty five year old decision analyzing the then existing customary rights of the tenants at Punjab. It is respectfully submitted that the decision as referred to above and the principle enumerated therein being fully applicable to the case in hand, the learned Subordinate Judge ought to have applied the ratio of the said case while deciding the appeal.” 4. Heard Mr. A.K. Mahakud, learned counsel for the appellants. None appears for the respondent. 5. Mr. Mahakud, learned counsel for the appellants, submits that the plaintiff instituted the suit for declaration that the defendant no.3 is not the adopted son of defendant nos.1 and 2. The suit is hit under Sec.34 of the Specific Relief Act and as such not maintainable. 6. The submission of Mr. Mahakud, learned counsel for the appellants, is difficult to fathom. In Vemareddi Ramaraghava Reddy and others v. Konduru Seshu Reddy and others, AIR 1967 SC 436 , the suit was filed for a declaration that the compromise decree is not binding upon the deity. A contention was raised that the declaratory suits are governed exclusively by Sec.42 of the Specific Relief Act, 1877. The plaintiff must satisfy the Court that he is entitled either to any legal character or to any right in any property. The plaintiff has brought the suit as a mere worshipper of the temple and that he has no legal or equitable right to the properties of the temple which constitute the subject matter of the suit. The plaintiff has not asked for a declaration of his legal character as a worshipper of the temple but he has asked for the setting aside of the compromise decree in another suit with regard to nature of the temple properties. The apex Court held that Sec.42 of the Specific Relief Act is not exhaustive of the cases in which a declaratory decree may be made and the Courts have power to grant such a decree independently of the requirements of the section. The suit of the plaintiff for a declaration that the compromise decree is not binding on the deity is maintainable as falling outside the purview of Sec.42 of the Specific Relief Act. 7. The suit of the plaintiff for a declaration that the compromise decree is not binding on the deity is maintainable as falling outside the purview of Sec.42 of the Specific Relief Act. 7. In M/s. Supreme General Films Exchange Ltd. v. Brijnath Singhji Deo of Maihar and others, AIR 1975 SC 1810 , Sec.42 of the Specific Relief Act, 1877 was the subject matter of consideration. The apex Court held that Sec.42 merely gives statutory recognition to a well-recognised type of declaratory relief and subjects it to a limitation, but it cannot be deemed to exhaust every kind of declaratory relief or to circumscribe the jurisdiction of Courts to give declarations of right in appropriate cases falling outside Sec.42. The circumstances in which a declaratory decree under Sec.42 should be awarded is a matter of discretion depending upon the facts of each case. No doubt a complete stranger whose interest is not affected by another’s legal character or who has no interest in another’s property could not get a declaration under Sec.42 of Specific Relief Act with reference to the legal character or the property involved. Sec.42 of the Specific Relief Act, 1877 is pari materia to Sec.34 of the Specific Relief Act, 1963. 8. In Mst. Sukara Munda and others vs. Budhuni Munda and others (S.A. No.31/1988 decided on 28.3.2018), the suit was instituted for declaration that defendant no.1 is not the legally married wife of late Hanu Munda. Taking a cue from the decisions of the apex Court cited supra, this Court held that the suit is maintainable. 9. In the wake of aforesaid, the appeal is dismissed. Since the suit is of the year 1981, learned trial court shall conclude the hearing of the suit within a period of three months.