Chittoju Brahmaiah vs Sarida Subha

M.H.S. Ansari, J.—The plaintiff is the appellant in the above Second Appeal. He filed a suit for a declaration that the plaintiff is the owner and possessor of the suit schedule property and to issue mandatory injunction directing the defendant to remove the basement raised in the suit site and for perpetual injunction restraining the defendants from interfering with the possession and enjoyment of the plaintiff over the suit site. The plaintiff claims title by virtue of a sale deed dated 30-3-1967 in respect of the suit site ad-measuring 131 sq. yards from Manukonda Madhava Rao, who in turn purchased the said property under Registered Sale Deed dated 20-8-1966 from Bezawada Pundari and Namburi Siva Satyanarayana. The defendant claimed that she had purchased site of an extent of 117 sq. yards under Registered sale deed dated 2-11-1967 and 213 sq. yards under Registered sale deed dated 13-11-1970 from Bezawada Pundari.

The trial Court decreed the suit insofar as title of the plaintiff is concerned and with regard to Issue No. 2, the trial Court held that the plaintiff is entitled for mandatory injunction for recovery (sic. removal) of basement and in respect of Issue No. 3, the suit was decreed for perpetual injunction.

It is relevant to note here that the trial Court observed that the defendant was a trespasser over the suit property and that in the interest of justice, the possession must be recovered from the illegal trespasser. Needless to reiterate that the suit filed by the plaintiff was not for possession, but for declaration of Title and possession. The Appellate Court noted the said inconsistency in the judgment of the Trial Court and observed as under:

"As already pointed out while giving finding on issue No. 1 about title and possession, the lower Court found that the plaintiff is in possession of the property, but while considering the defendant''s contention that the plaintiff''s suit for injunction is not maintainable without seeking the relief of possession, the lower Court went to the extent of holding that the plaintiff sought for relief of possession of the property, which is factually incorrect. Such a reasoning of the Court below, for the purpose of distinguishing decision of Supreme Court, is most unfortunate. In this suit, the plaintiff never claimed possession of the property. On the other hand, the plaintiff sought for declaration of his title and possession and for consequential permanent injunction and mandatory injunction."

As regards the possession of the plaintiff over the suit site is concerned, the Courts below found that the defendant is proved to be in possession of the property since 1971, if not earlier by raising compound wall and the plaintiff is proved to be out of possession of the property by the date of the suit. This finding is based upon Ex.B-3 proceedings of the Municipality, Khammam dated 30-4-1971 whereby permission was granted to the defendant to construct the compound wall. Ex. B-10 is the approved Plan signed by the Commissioner, Municipality dated 1-5-1971 and Exs.B-14,15 and 16 are the proceedings in O.S. No. 55 of 1971. It was filed by defendant against the Municipality and they show that the then Munsif Magistrate had visited the suit site and he made observations in those proceedings, that there is a basement with a compound wall.

The trial Court had in the light of evidence on record observed that the evidence would show that the defendant has constructed the compound wall around the suit property in the year 1971 itself and the Appellate Court held that there was overwhelming evidence to show the total extent of site in possession of the defendant is 330 sq. yards around which the defendant constructed the compound wall as long back as in 1971.

The Appellate Court considered the question of maintainability of the suit as it was found by both the Courts that the plaintiff was not in possession of the suit schedule property and had not asked for possession. It allowed the appeal setting aside the judgment and decree of the Court below on the ground that the plaintiff''s suit for mere declaration, mandatory and permanent injunctions without seeking relief of possession is not maintainable.

Learned counsel for the appellant, however, contended that the suit in the trial Court proceeded on an erroneous basis and contrary to the pleadings and for the error of the trial Court with regard to the nature of the relief claimed, the appeal of the defendant ought not to have been allowed.

The contention of the learned counsel in short is that the plaintiff had not filed a suit simpliciter for declaration of title and injunction. The relief prayed for was with regard to declaration of "title and possession" and therefore it is contended that the plaintiff could not be non-suited on the ground of the bar under proviso to Section 34 of the Specific Relief Act.

The power of Courts to pass a declaratory decree rests upon Section 34 of the Specific Relief Act (old Section 42). It has, however, to be noted that Section 34 is not exhaustive of the cases in which a declaratory decree may be made.

u/s 34 of the Act, a plaintiff who is able to seek further relief than a mere declaration of title, is obliged to seek such relief and if he omits to do so, he would not be entitled to the declaration of title and the Court will not make the declaration asked for. The plaintiff who is out of possession suing for declaration of title to property must also seek the relief of possession. A suit for declaration of possession is really one in the nature of a suit for confirmation of the possession of the plaintiff. In such a suit, the plaintiff would have to establish that he is in possession of the property to be granted a declaration confirming his possession. Thus in a suit for declaration of title and possession and consequential permanent injunction, the plaintiff has to prove both his title, as well as his possession. In the instant case, the suit (is) filed for declaration that he is owner and possessor of the suit property is one filed for declaration of title and confirmation of possession. The plaintiff has been able to establish his title, but both Courts below found that the plaintiff was out of possession and that the defendant was in possession of the suit property. The suit thus became one for mere declaration of title as the plaintiff has disentitled himself to the declaration as to confirmation of his possession based on evidence. In such case where the defendant is in possession, and the plaintiff does not seek possession, but merely claims declaration that he is the owner of the suit property, such suit is not maintainable u/s 34 as it would be hit by proviso to Section 34 of the Specific Relief Act.

In the instant case, both the fact finding Courts below held that" the defendant was in possession of the suit property. The plaintiff (having) sued for mere declaration without seeking possession of the suit property such suit is not maintainable and was rightly held by the Lower Appellate Court as not maintainable.

In Ram Saran and Another Vs. Smt. Ganga Devi, dealing with Section 42 of the repealed Specific Relief Act which is verbatim of Section 34 of the present Act held that where as a fact, it was found by Courts that defendant is in possession of the suit properties and the plaintiff not having sought possession of those properties and merely claimed a declaration as to ownership of the suit properties, the suit was held not maintainable as it was hit by Section 42 of the Specific Relief Act.

In the light of the above and in view of the concurrent finding of fact by both Courts below that the defendant-Respondent herein is in possession of the suit schedule property, it has to be held that the suit for mere declaration without seeking possession of the suit property is not maintainable.

In the circumstances, there is no substantial question of law arising in the above Second Appeal nor any grounds to entertain the Second Appeal and the same is accordingly dismissed.