Rasid And Another vs Salil And Others

1] Appellants/plaintiffs have filed the present appeal being aggrieved by the judgement dated 14/03/2018 passed by 2nd Additional District Judge, Badwani in Civil Appeal No.14A/2017 whereby the judgement and decree dated 13/09/2017 passed by Civil Judge, Class-I, Anjad, District Badwani in their favour has been set aside and the suit has been dismissed.

2] The facts of the case which lead to this second appeal are as under:-

3] The plaintiffs filed a suit for declaration of title and declaration of mutation in favour of defendants No.1 to 4 as void in respect of the land survey No.37 area 1.586 hectare of village Grampura Bramhangaon, Tehsil Thikri. The undisputed facts of the suit land are as under:-

4] The suit land was initially owned by Alauddin who had two wives namely Idi Bai and Gulshan Bai. Idi Bai died issueless and thereafter Alauddin got married with Gulshan Bai. Gulshan Bai had two daughter namely Bashiran Bai and Muniran Bai. Muniran Bai died during the life time of Alauddin. The plaintiffs are son and daughter of Muniran Bai and the defendants are legal heir of Bashiran Bai. After the death of Bashiran Bai, the defendants filed a case No.136A-6-2/2012-14 before the Court of Tehsildar and got an order dated 30/04/2014 in respect of mutation of their name which gave a cause of action to plaintiffs to file a suit. Accordingly to the plaintiffs, being legal heirs of Muniran Bai they have ½ share in the properties of Alauddin and the mutation in favour of the defendants is void.

5] After receipt of the summon, defendants No.1 to 4 filed written statement by submitting that the suit land has been mutated in their favour on 30/04/2014. The plaintiffs have no right and title over the suit property. After the death of Alauddin, the suit land transferred in the name of Gulshan Bai and after the death of Gulshan Bai, the same was transferred in the name of Bashiran Bai in the year 1980-81 and since then the defendants are in possession.

6] On the basis of the pleadings, the trial Court framed five issues for adjudication. Plaintiffs and defendants examined their witnesses and filed the documentary evidence and got exhibited the documentary evidence. Vide judgement and decree dated 13/09/2017, the learned Civil Judge had decreed the suit in favour of the plaintiffs by giving a declaration that the plaintiffs and defendants are having equal share in the suit property. The mutation in favour of the defendants No.1 to 4 has been declared void.

7] Being aggrieved by the aforesaid judgement and decree, the defendants preferred a first appeal before the 2nd Additional District Judge, Badwani and vide judgement dated 14/03/2018 the learned Additional Judge has affirmed the finding in respect of ½ share of the plaintiffs over the suit land but dismissed the suit by virtue of proviso of Section 34 of the Specific Relief Act as the plaintiffs did not claim the possession in the suit. Hence, the present appeal before this Court.

8] I have heard Shri N.K. Satsangi, learned counsel for the appellants and perused the record.

9] It is correct that the plaintiffs in their entire plaint have not pleaded that they are in possession. The possession of the defendants over the suit land is not in dispute. The mother of the plaintiffs died during the life time of Alauddin. After the death of Alauddin, the suit property transferred in the name of Gulshan Bai and thereafter it was transferred to Bashiran Bai in the year 1981 and at that time, the plaintiffs did not challenge the mutation in the name of Bashiran Bai. They filed the suit for the relief of declaration only when the name of defendants were mutated after the death of Bashiran Bai. Though the trial Court has held that the suit is within limitation but entertained the suit without examining the provisions of Section 34 of the Specific Relief Act, 1963.

10] The Apex Court in case of Union of India Vs. Ibrahim Uddin and another reported in (2012) 8 SCC 148 has held that it is not permissible to claim the relief of declaration without seeking the consequential relief. The suit is barred by the provision of Section 34 of the Specific Relief Act and ought to have been dismissed solely on this ground. Para 55 to 58 are reproduced below:-

"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.

In Ram Saran & Anr. v. Smt. 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 34of Specific Relief Act, 1963 (hereinafter called 'Specific Relief Act') and, thus, not maintainable. In Vinay Krishna v. Keshav Chandra & Anr., this Court dealt with a similar issue where the plaintiff 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).

In view of above, the law becomes crystal clear that it is not permissible to claim the relief of declaration without seeking consequential relief.

In the instant case, suit for declaration of title of ownership had been filed though, the plaintiff/respondent no. 1 was admittedly not in possession of the suit property. Thus, the suit was barred by the provision of Section 34 of the Specific Relief Act and, therefore, ought to have been dismissed solely on this ground. The High Court though framed a substantial question on this point but for unknown reasons did not consider it proper to decide the same."

Therefore, in view of the aforesaid judgement of the Apex Court, the present suit is not maintainable. The first appellate Court did not commit any error of law while dismissing the suit. Hence, I do not find any substantial question of law involved in this appeal which is accordingly dismissed.