Smt. Yashodamma and Smt. Meenakshi vs Sri S.G. Subramanya Achar

H.N. Nagamohan Das, J.—This second appeal is directed against the judgment and decree dated 13.4.2011 in R.A. No. 27/2009 passed by the District Judge, Fast Track Court-VII, Doddaballapur in so far as it relates to declaring the Respondent/Plaintiff as the owner of suit property.

Appellants are the Defendants and Respondent is the Plaintiff before the Trial Court. In this judgment for convenience the parties are referred to their status before the trial Court.

Plaintiff contends that he is the absolute owner in possession and enjoyment of the plaint schedule property having purchased the same, under a registered sale deed dated 1.8.1964. The Defendants on the basis of a fake sale deed tried to interfere with the Plaintiffs possession and enjoyment of the plaint schedule property. Therefore, the Plaintiff filed O.S. No. 345/1993 for declaration, of title and permanent injunction. Defendants entered appearance before the Trial Court and filed written statement interalia contending that the plaint schedule property originally belongs to one Doddamuniyappa and Chikkamuniyappa and they sold the same under a registered sale deed dated 9.2.1967 in favour of one Katappa and his wife Muniyamma Subsequently, the said Katappa and Muniyamma sold the schedule property in favour of first Defendant under a registered sale deed dated 30.7.1990. The Defendant and earlier their vendors are in continuous possession and enjoyment of the plaint schedule property and the Plaintiff is not in possession of the same. On these grounds, the Defendants opposed the claim of Plaintiff. On the basis of the pleadings, the Trial Court the framed the following issues for its consideration:

i) Whether the Plaintiff proves that he is the absolute owner of the suit schedule property?

ii) Whether the Plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property as on the date of filing of this suit?

iii) Whether the Plaintiff proves the interference of the Defendants?

iv) Is the Plaintiff entitled for declaration as prayed for ?

v) Is the Plaintiff entitled for permanent injunction as prayed for ?

vi) What order and what decree?

Before the Trial Court, Plaintiff examined two witnesses as PW.1 and PW.2 and got: marked Exs. P1 to P18. Defendants examined three witnesses as DW.1 to DW.3 and got marked Exs. D1 to D36 The Trial Court on appreciation of the pleadings, oral and documentary evidence held that Plaintiffs have failed to prove and establish their title and possession over the plaint schedule property. On the other hand, the Trial Court held that the Defendants are in possession of the plaint: schedule property. Consequently under the judgment dated 18.12.2008, the Trial Court dismissed the suit of Plaintiff. The Plaintiff being aggrieved by the judgment and decree of the Trial Court filed an appeal in R.A. No. 27/2009. The first Appellate Court after hearing arguments framed the following points for its consideration:

I. Whether the learned Prl. Civil Judge, Doddahallapur was justified in holding that the Plaintiff has failed to prove the title over the suit schedule property?

II. Whether the learned Prl. Civil judge & J.M.F.C. Doddaballapura was justified in holding that the Plaintiff has failed to prove the possession over the suit schedule property and the alleged interference?

III. Whether the judgment and decree passed by the Pri. Civil judge calls for interference?

IV. What order?

On reappreciation of the entire material on record, the first Appellate Court noticed that one Doddamuniyappa and Chikkamuniyappa were the owners of plaint schedule property and at the earliest point of time, they sold the sale in favour of Plaintiff under a registered sale deed dated 1.8.1964. Whereas the very same Doddamuniyappa and Chikkamuniyappa subsequently sold the very same plaint schedule property in favour of Katappa and Muniyamma under a registered sale deed dated 9.2.1967. Therefore, the first Appellate Court held that the sale deed in favour of Plaintiff is earlier to the sale deed in favour of the Defendants. Consequently, the first Appellate Court declared that the Plaintiff is the owner of plaint schedule property. But on appreciation of documentary evidence on record, the first Appellate Court noticed that Plaintiff is not in possession of the plaint schedule property. On the other hand, the record of rights, index of lands, ETC extracts, tax paid receipts, patta book and Form - 15 manifestly establishes that Defendants are in possession of the plaint schedule property. Consequently, the judgment and decree of the Trial Court in so far as it relates to the finding that Plaintiff is not possession of the plaint schedule property came to be confirmed by the first Appellate Court. Accordingly, under the impugned judgment, the first Appellate Court decreed the suit of Plaintiff for declaration, of title and dismissed the suit for decree of permanent injunction. Hence this second appeal.

Though the matter is listed for admission, the same is heard on merits The following substantial question of law will arise for consideration in this second appeal:

Whether the first Appellate Court is legally justified in granting a decree for declaration of title when it is found that the Plaintiff is not in possession of the plaint schedule property.

I heard arguments and perused the entire appeal papers.

It is necessary at this stage to extract Section 34 of the Specific Relief Act and the same reads as under:

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 wake 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.

A reading of Section 34 of the Specific Relief Act specifies that the court shall not make any declaration where the Plaintiff being able to seek further relief than a mere declaration of title, omits to do so. In the instant ease, the Plaintiff contends that he is in possession, of the plaint schedule property as owner and therefore he sought for declaration of title and permanent injunction. On appreciation of oral and documentary evidence, both the courts below concurrently held that Plaintiff is not in possession of the plaint schedule property. This concurrent finding of both the courts below is supported by evidence on record and I find no justifiable ground to interfere with the same. When Plaintiff is not in possession of the plaint schedule property, then it is not open for the court to grant mere decree of declaration of title. Therefore, the first Appellate Court committed illegality and the same is contrary to Section 34 of the Specific Relief Act. However, it is always open for the Plaintiff to work out his remedy before the appropriate forum in accordance with law if he is so entitled.

For the reasons stated above, the following:

ORDER

i) Appeal is hereby allowed.

ii) The impugned judgment and decree of the first. Appellate Court dated 13.4.2011 in R.A. 27/2009 in so far as it relates to decreeing the suit of Plaintiff for declaration of title is hereby set-aside.

iii) Ordered accordingly.