Chamar Sai And Ors vs Dharam Sai And Ors

Sanjay K. Agrawal, J

The appellants / plaintiffs filed a suit for bare declaration of title and permanent injunction upon the suit land and further declared the sale deed

dated 29.03.1961 as null and void in which the defendants set up a defense that they have acquired the title by purchasing the suit land from plaintiff

No. 1 and plaintiffs' father Jaipal.

The trial Court has held that appellants / plaintiffs are not in possession of the suit land and the defendants No. 1 to 3 have acquired the title by sale

deed on 29.03.1961 and dismissed the suit on merits. In an appeal preferred by the plaintiffs, the first Appellate Court held that defendants have not

acquired the title over the suit land by Exhibit - D/1 as the sale deed has not been proved in accordance with law and the suit is also not time barred

and held that though the plaintiffs are not in possession of the suit land but the plaintiffs have not claimed relief of possession as per the proviso to

Section 34 of the Specific Relief Act and dismissed their appeal, against which this second appeal has been preferred.

Learned counsel for the appellants submits that the finding recorded by the two Courts below that plaintiffs are not in possession of the suit land is a

perverse finding and contrary to law.

I have heard learned counsel for the appellants.

The two Courts below have recorded a finding that the plaintiffs are not in possession of the suit land and defendants are in possession of the suit

land and the plaintiffs have not sought for relief of possession which is barred under proviso to Section 34 of the Specific Relief Act. In this regard, the

decision of the Supreme Court in case of Vinay Krishna v. Keshav Chandra and another1 is pertinent.

In view of the aforesaid legal position, the finding recorded by the trial Court that no relief can be granted to the plaintiffs as they have not claimed

for relief of possession cannot be said to be perverse which has rightly been affirmed by the First Appellate Court. The finding recorded by the two

Courts below is not contrary to law. I do not find any substantial question of law involved in this second appeal for determination.

Accordingly, the second appeal deserves to be and is hereby dismissed in limine. No cost(s).