S. Chandrakanth and Nandakumar vs Srikantadatta Narasimha Raja Wodeyar

Jawad Rahim, J.—This appeal by the defendant is directed against the order of remand passed in R.A. 13/07 on the file of Judge, Fast Track Court, Srirangapatna, whereby dismissal of the suit in O.S. 55/99 has been set aside and the case is remanded for de novo consideration. The appeal is posted for admission. I had allowed learned counsel to urge substantially in favour of admission which he has done to his best.

From what he has adverted to, the factual matrix is:

a) Respondent-Srikantadatta Narasimha Raja Wodeyer filed suit against the appellants herein seeking a decree to declare he is the owner in possession of land measuring 1.01 acres more fully described in the schedule to the plaint and also for an order of injunction to restrain them from interfering with his possession.

b) In support of the relief so sought, he categorically averred he was the absolute owner of land measuring 13.23 acres in Survey Nos. 181 and 182, out of which he sold 12.22 acres in favour of Krishnappa, s/o Chikkahonnegowda for valuable consideration vide deed of sale dated 2.12.1961. He retained for himself land measuring 1.01 acres, claiming it as Kharab, but had grown fruit bearing trees, and had also constructed a building which is in his possession.

c) He further averred he has been in continuous physical possession and enjoyment of the property along with the superstructure without any interference. He alleged defendants claiming to have purchased the property from Krishnappa, were trying to interfere with his possession which was to his detriment.

d) In the suit, defendants entered contest and filed written statement, admitting that plaintiff was the owner of the suit land in Survey Nos. 181 and 182, that he had sold 12.22 acres. The only dispute raised by them was, sale of land in Survey Nos. 181 and 182 includes 1.01 acres of Kharab land, and therefore they are in possession of the same. They did not dispute the sale transaction between the plaintiff and Krishnappa and also sale in favour of Erappa @ Chowdappa.

Therefore, the dispute boils down to a simple issue as to who was in physical possession. Plaintiff had sought declaration that he is the absolute owner and consequently sought an order of injunction to restrain defendants from interfering with his possession. Having admitted that the plaintiff was the owner of the entire land and had sold a portion of it, defendants had to establish the sale was in respect of the entire land in Survey Nos. 181 and 182. They relied on revenue entries which are built up based on the transaction of sale covered by the sale deeds.

When the question of factum of possession had arisen, it was necessary for the trial court to have enquired into that aspect. But the learned trial judge, looking at the declaration sought in the plaint, opined plaintiff should have also sought for possession. Such conclusion was undoubtedly improper and unsustainable as plaintiff''s case itself was, he was in physical possession and enjoyment of the property in question and had sought declaration to declare he continues to be the owner despite sale of a portion of the land in favour of Krishnappa, predecessor in title of the defendants. When the plaintiff''s suit was based on possession and declaration of title was sought, the trial court could not have opined the suit was not maintainable as he had not sought possession.

Learned counsel has continued to reiterate the same ground in this appeal relying on the decision of this court reported in Sri Aralappa Vs. Sri Jagannath and Others, wherein the learned single Judge referring to Section 34 of the Specific Relief Act, has opined without seeking the relief of possession, the suit for declaration is not maintainable. The facts under which such observation has been made show a different situation. Learned counsel, quoting this decision has misread the circumstances in which Section 34 would operate. The said provision would come into play when a person entitled to any legal character or to any right as to any property, he may institute a suit against such person denying his interest and to seek declaration of such right, he may do so without asking further relief. It is only the proviso to Section 34 which mandates:

''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 for whom, if in existence, the would be a trustee.

In the instant case, plaintiff claims to be in physical possession and while doing so, he is seeking declaration of his right as the absolute owner. Section 34 of the Specific Relief Act has no application. Had he averred that he is the owner in respect of the property which is in the possession of defendants, then without seeking the relief of possession, the relief could not have been granted. That is not the fact situation here. Learned trial judge had not examined the nature of pleadings consequent to which such observation was made. Rightly the learned appellate judge has held that the material propositions in the pleadings have not been examined by the trial court to frame relevant issues arising for consideration, consequent to which there is contravention of Section 14, C.P.C. For this reason, appellate judge thought total remand is necessary as the trial judge, after referring to the provisions of Section 34, has taken a long jump to reach the conclusion that the defendants have established they are in possession.

Be that as it may, the suit has been dismissed only on the ground that the suit was not maintainable as the relief for possession was not sought. I am satisfied the learned appellate judge has found remand would be necessary to enable both sides to lead such evidence as is necessary to establish their respective claims.

Another ground urged is, the appeal was not maintainable as it was not preferred by the appellant in personem but through his attorney. This ground must necessarily fail for the simple reason, Ex.P1, power of attorney spells out that the appellant had clothed the attorney with all powers to take such legal action as is necessary to protect the property in question which includes signing of pleadings. Merely because there is no mention of appeal action, appeal does not suffer. Hence, this ground is also rejected. The judgment impugned is a well-reasoned and does not need interference. I find no merit in the appeal, it is dismissed at the stage of admission.