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2018 DIGILAW 657 (KAR)

Balu Jyoti Chambar v. Lagamanna Birasidda Pujari

2018-06-04

P.S.DINESH KUMAR

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JUDGMENT : P.S. DINESH KUMAR, J. 1. This second appeal by defendant No. 1 before the Trial Court is directed against the Judgment and Decree dated 04.08.2015 in RA. No. 24/2012 on the file of the Senior Civil Judge and Judicial Magistrate First Class, Raibag, dismissing the appeal and thereby confirming the judgment and decree dated 10.08.2012 in O.S. No. 362/2006 on the file of Additional Civil Judge and Judicial Magistrate First Class, Raibag. 2. For the sake of convenience parties shall be referred to as per their status before the Trial Court. 3. Heard Sri M.G. Naganuri, learned counsel for the appellants. Though served respondent has remained absent. Since, the appeal involves pure question of law and falls within a narrow compass, the same is taken up for final disposal. 4. Briefly stated the facts of the case are, plaintiff brought the instant suit initially for bare injunction. Subsequently prayer in the plaint was amended and the same reads as follows: (a) A decree for declaration that as per registered, sale deed, dated 10.01.1997, Declaration that as per registered, the plaintiff is absolute owner in possession of suit land, R.S. No. 103/6B, measuring AC. 00=24 Guntas assessed to Rs. 04 = 00 ps of Mekhali village, in Raibag Taluka and ordered to be reentered his name in the R of R extract of suit land as before, be ordered to be declared with consequential relief of injunction against defendants be issued, in the interest of Justice. (b) Costs of this suit be awarded to this plaintiff from these defendants. 5. The Trial Court framed following 5 issues and 2 additional issues: (1) Whether the plaintiff proves that, he is in actual and lawful possession of suit land as on the date of suit? (2) Whether the plaintiff further proves that the defendants are causing interference as averred in the plaint? (3) Whether the Judgment and Decree passed in O.S. No. 11/2005 on the file of this court will operates as res judicata? (4) Whether the plaintiff is entitling for the relief sought for? (5) What Decree or Order? Addl. Issues (1) Whether the plaintiff proves that he is the absolute owner in possession of suit land by virtue of registered Sale deed dated 10.1.1997? (2) Whether the defendants proves that suit is barred by limitation? (4) Whether the plaintiff is entitling for the relief sought for? (5) What Decree or Order? Addl. Issues (1) Whether the plaintiff proves that he is the absolute owner in possession of suit land by virtue of registered Sale deed dated 10.1.1997? (2) Whether the defendants proves that suit is barred by limitation? (3) Is the plaintiff entitled for the alternative relief of possession of suit land as sought for? 6. Issues No. 1 and 2 are relevant. Answering issues No. 1 to 3 and additional issue No. 2 in the negative and issues No. 4 and additional issues No. 1 and 3 in the affirmative, the Trial Court decreed plaintiff's suit for declaration as owner in possession of suit property with costs. 7. In appeal, the Lower Appellate Court framed following points for consideration. 1. Whether the Trial Court has not properly appreciated the oral and documentary evidence produced by the parties? 2. Whether the judgment and decree of Trial Court is perverse and illegal? 3. What order or decree? 8. Holding points No. 1 and 2 in the Negative, the Lower Appellate Court dismissed the appeal and thereby confirmed the judgment and decree passed by the Trial Court. 9. Feeling aggrieved by the concurrent findings, the defendants are before this Court. Though served, plaintiff has remained absent. 10. The following substantial questions of law have been framed in this appeal. (a) Whether the Courts below were justified in decreeing the suit of respondent for declaration & injunction despite returning the finding that he was not in possession of the suit property and did not prove interference? (b) Whether the Trial Court was justified in directing the appellants to handover possession of suit property to the respondent though he did not seek the relief of possession from them and on the contrary he admitted that he is in possession of land RS No. 103/2015 since the date of purchase and did not complain of dispossession of the same by the appellants? (c) Whether the Courts below were justified in decreeing the suit ignoring the fact that the respondent who was entitled to claim the relief of declaration and possession filed only suit for injunction in OS. No. 11/2005 and therefore, the suit is hit by Order II Rule 2(3) CPC & constructive res-judicata? 11. Sri. (c) Whether the Courts below were justified in decreeing the suit ignoring the fact that the respondent who was entitled to claim the relief of declaration and possession filed only suit for injunction in OS. No. 11/2005 and therefore, the suit is hit by Order II Rule 2(3) CPC & constructive res-judicata? 11. Sri. M.G. Naganuri arguing in support of the appeal urged following grounds; that the plaintiff did not seek for possession of the suit schedule property; that prior to filing the instant suit, plaintiff had filed O.S. No. 11/2005 on the file of Additional Civil Judge (Jr. Dn), Raibag for injunction. In the said suit, an issue, as to whether plaintiff was in possession of the suit scheduled property was framed and answered in the negative. 12. In view of the above, Sri. M.G. Naganuri submitted that the instant suit is not maintainable at all view of proviso to Section 34 of the Specific Relief Act and Order II Rule 2(3) of the code of civil procedure. 13. In Controvertible facts of this case are, the plaintiff had filed O.S. No. 11/2005. Wherein Trial Court has returned a finding that plaintiff was not in possession of suit scheduled property. Subsequently, the instant suit has been filed. 14. In support of his contentions Shri. M.G. Naganuri relied upon following authorities: (i) Ram Saran and another V/s. Smt. Ganga Devi reported in (1973) 2 SCC 60 . (ii) Union of India V/s. Ibrahim Uddin and another reported in (2012) 8 SCC 148 . (iii) Sri. Aralappa V/s. Sri. Jagannath and others reported in ILR 2007 KAR 339. 15. The Trial Court has framed issues with regard to possession and held that plaintiff was not in possession of the suit schedule property and the Lower Appellate Court has confirmed the judgment of the Trial Court. Therefore, the question that falls for consideration is: "Whether the suit is maintainable at all in view of proviso to Section 34 of the Specific Relief Act"? Proviso to Section 34 of the Specific Relief Act reads as under: 34. Therefore, the question that falls for consideration is: "Whether the suit is maintainable at all in view of proviso to Section 34 of the Specific Relief Act"? Proviso to Section 34 of the Specific Relief Act reads as under: 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 than 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 whom, if in existence, he would be a trustee. A plain reading of above shows that proviso to the Section bars the Court from making in declaration when plaintiff omits to seek further relief than a mere declaration. Thus proviso to Section 34 disentitles the plaintiff to any relief. 16. Admittedly, the plaintiff has not sought for relief of possession though he has suffered a decree in O.S. No. 11/2005 to the effect that he was not in possession of the suit schedule property. 17. Similarly Order II Rule 2(3) of CPC prohibits plaintiff from seeking any relief on the same cause of action. 18. The Hon'ble Supreme Court in the case of Ram Saran and another Supra has held as follows:- 4. xxx...xxx.... The plaintiff have not sought possession of those properties. They merely claimed a declaration that they are the owners of the suit properties. Hence the suit is not maintainable. In these circumstances, it is not necessary to go into the other contention that the suit is barred by limitation. 19. The Hon'ble Supreme Court in the case of Union of India V/s. Ibrahim Uddin and another Supra is held as follows:- "55. Hence the suit is not maintainable. In these circumstances, it is not necessary to go into the other contention that the suit is barred by limitation. 19. The Hon'ble Supreme Court in the case of Union of India V/s. Ibrahim Uddin and another Supra is held as follows:- "55. The section provides that courts have discretion as to declaration of status or right, however, it carves out an exception that a court shall not make any such declaration of status or right where the complainant, being able to seek further relief than a mere declaration of title, omits to do so." 56. In Ram Saran V. Ganga Devi this court had categorically held that the suit seeking for declaration of title of ownership but where possession is not sought, is hit by the proviso of section 34 of the Specific Relief Act, 1963 (hereinafter called "the Specific Relief Act") and, thus, not maintainable. In Vinay Krishan v. Keshav Chandra this court dealt with a similar issue where the pl was not in exclusive possession of property and had filed a suit seeking declaration of title of ownership. Similar view has been reiterated observing that the suit was not maintainable, if barred by the proviso to Section 34 of the Specific Relief Act. (see also Gian Kaur V. Raghubir Singh) 57. In view of the above, the law becomes crystal clear that it is not permissible to claim the relief of declaration without seeking consequential relief. In conclusion, the Apex Court has recorded thus: 85.12. The suit was barred by the proviso to Section 34 of the Specific Relief Act, for the reason that respondent 1-plaintiff, admittedly, had not been in possession and he did not ask for restoration of possession or any other consequential relief. 20. Thus this appeal must succeed on both counts namely, the bar contended under Section 34 of the Specific Relief Act and the bar contended under Order II Rule 2(3) CPC. 21. In view of the aforesaid finding, the judgment and decree passed by lower appellate Court confirming the judgment and decree of the trial Court are unsustainable in law. Hence this appeal merits consideration. Resultantly, the following: ORDER (i) Appeal allowed. 21. In view of the aforesaid finding, the judgment and decree passed by lower appellate Court confirming the judgment and decree of the trial Court are unsustainable in law. Hence this appeal merits consideration. Resultantly, the following: ORDER (i) Appeal allowed. (ii) Judgment and decree dated 04.08.2015 passed by the Senior Civil Judge & JMFC, Raibag in R.A. No. 24/20 12 is set aside and O.S. No. 362/2006 on the file of Senior Civil Judge and Judicial Magistrate Fist class, Raibag is dismissed. (iii) No Costs.