AKKAMMA & ORS. versus VEMAVATHI & ORS.

[2021] 10 S.C.R. 1187

AKKAMMA & ORS.

VEMAVATHI & ORS.

(Civil Appeal No. 5884 of 2009)

NOVEMBER 25, 2021

[L. NAGESWARA RAO AND ANIRUDDHA BOSE, JJ.]

Specific Relief Act, 1963 – s.34 – Two suits were filed in 1982and 1987 in respect of the suit property – The 1982 suit, forperpetual injunction, was dismissed by the trial Court on the groundthat plaintiff could not establish his lawful possession – Appealwas also dismissed by the High Court – The plaintiff alleged thatdefendants made attempts to interfere with his possession, hence1987 suit was founded – Suit was for declaration of ownership andinjunction – The trial Court held that plaintiffs proved ownership,but the aspect of possession and obstruction went against theplaintiffs – The suit was dismissed – High Court upheld the decisionof the trial Court – Before the High Court, the plaintiff had soughtto amend the plaint seeking alternative relief of possession of thesuit property, however, the said relief was denied – Before SupremeCourt, the appellants-plaintiffs having regard to the provision ofs.34 of the 1963 Act urged that the suit ought not to have beendismissed as along with the claim for declaration, injunctive reliefwas also sought – Held: The High Court was right in holding thatpossession of the suit property was not established and henceinjunctive relief could not not be granted – The High Court wasalso right in rejecting the plea for amendment – But that factorought not to be ground for denying declaration of ownership tothe plaintiffs – There is no bar in the Specific Relief Act, 1963 ingranting stand alone declaratory decree – The Trial Court came toa positive finding that the original plaintiff was the owner of thesuit property – But it held that in absence of declaration of relief ofpossession by the plaintiff, declaration of title cannot be granted –This line of reasoning is not correct – There is misconstruction ofthe provisions of Section 34 of the 1963 Act – The original plaintiffwas entitled to declaration that he was the absolute owner of the

Asuit property – There is no bar in granting such decree fordeclaration and such declaration could not be denied on thereasoning that no purpose would be served in giving suchdeclaration – May be such declaratory decree would be non-executable in the facts of the case, but for that reason alone suchdeclaration cannot be denied to the plaintiff.B

Partly allowing the appeal, the Court

HELD: 1. The prohibition or bar contained in proviso toSection 34 of the 1963 Act determines the maintainability of asuit and that issue has to be tested on the basis the plaint isCframed. If the plaint contains claims for declaratory relief as alsoconsequential relief in the form of injunction that would insulatea suit from an attack on maintainability on the sole ground of barmandated in the proviso to the aforesaid section. If on evidencethe plaintiff fails on consequential relief, the suit may be dismissedDon merit so far as plea for consequential relief is concerned butnot on maintainability question invoking the proviso to Section34 of the 1963 Act. If the plaintiff otherwise succeeds in gettingthe declaratory relief, such relief could be granted. [Para 16][1199-F-G]E2. So far as the reliefs claimed in the suit out of which thisappeal arises, prayer for declaration was anchored on twoinstances of interference with the possession of land of theplaintiffs and injunctive relief for restraint from interference withthe property was also claimed. But possession of the said propertyby the original plaintiff was not established. The alternative reliefFsought to be introduced at later stage of the suit was also foundto be incapable of being entertained for the reason of limitation.Thus, the foundation of the case of the plaintiffs based on thesetwo factual grounds collapsed with the fact-finding Courts rejectingboth these assertions or allegations. But that factor ought not toGbe ground for denying declaration of ownership to the plaintiffs.There is no bar in the Specific Relief Act, 1963 in grantingstandalone declaratory decree. The Trial Court came to positivefinding that the original plaintiff was the owner of the suit-property.But it held that in absence of declaration of relief of possessionby the plaintiff, declaration of title cannot be granted. We haveH

already expressed our disagreement with this line of reasoning.It seems to be misconstruction of the provisions of Section 34of the 1963 Act. The Trial Court and the High Court haveproceeded on the basis that the expression “further relief”employed in that proviso must include all the reliefs that oughtto have been claimed or might have been granted. But in ourview, that is not the requirement of the said proviso. This takesus to the corollary question as to whether the 1987 suit couldhave been held to be barred under the principle contained inOrder II Rule 2 of the Code of Civil Procedure, 1908. In opinionof this Court, the said provisions of the Code would not apply inthe facts of this case, as the denial of legal right in the 1987 suitis pegged on two alleged incidents of 15th and 25th February,1987. These allegations can give rise to claims for declarationwhich obviously could not be made in the 1982 suit. The claimfor declaratory decree could well be rejected on merit, but thesuit in such case could not be dismissed invoking the principlesincorporated in Order II Rule 2 of the Code of 1908.[Para 17][1200-C-H; 1201-A-B]

3. The High Court has proceeded on the footing that in thesubject-suit, the original plaintiff must have had asked for relieffor recovery of possession and not having asked so, they becamedisentitled to decree for declaration and possession. But, theproviso to Section 63 of the 1963 Act requires making prayersfor declaration as well as consequential relief. In this case, if therelief on second count fails on merit, for that reason alone thesuit ought not to fail in view of aforesaid prohibition incorporatedin Section 34 of the 1963 Act. [Para 18][1201-B-D]

4. The first suit was for perpetual injunction, in which theoriginal plaintiff lost for failing to establish possession. In thesecond suit (the 1987 suit), reliefs were claimed for declarationbased on allegation of subsequent disturbances and on that basisinjunctive relief was asked for. The plaintiffs’ claim for being inpossession however failed. Thus, no injunction could be grantedrestraining the defendants from disturbing or interfering with theoriginal plaintiffs’ possession of the suit land. But as the TrialCourt found ownership of the original plaintiff was proved, in ourview the original plaintiff was entitled to declaration that he was

Athe absolute owner of the suit property. There is no bar in grantingsuch decree for declaration and such declaration could not bedenied on the reasoning that no purpose would be served in givingsuch declaration. May be such declaratory decree would be non-executable in the facts of this case, but for that reason alone suchdeclaration cannot be denied to the plaintiff. Affirmative findingBhas been given by the Trial Court as regards ownership of theoriginal plaintiff over the subject-property. That finding has notbeen negated by the High Court, being the Court of First Appeal.In such circumstances, in opinion of this Court, discretion ingranting declaratory decree on ownership cannot be exercisedCby the Court to deny such relief on the sole ground that theoriginal plaintiff has failed to establish his case on further orconsequential relief. [Para 19][1201-D-H; 1202-A]

M. K. Rappai and Ors. vs. John and Ors. 1969 (2) SCC590 : [1970] (2) SCR 124; Ram Saran and Anr. vs. Smt.DGanga Devi 1973 2 SCC 60; Vinay Krishna vs. KeshavChandra and Anr. 1993 Supp 3 SCC 129; AnathulaSudhakar vs. P. Buchi Reddy (Dead) By LRS. And Ors.2008 4 SCC 594 : [2008] (5) SCR 331; Venkatarajaand Ors. vs. Vidyane Doureradjaperumal (Dead)EThrough Legal Representatives and Ors. 2014 14 SCC502 : [2013] (5) SCR 814 – relied on.

Sri Aralappa vs. Sri Jagannath & others (ILR 2007Kar 339) – disapproved.

Devish vs. M.K. Subbiah and Ors. AIR 1970 Mys 249;FNavalram Laxmidas Devmurari vs. VijayabenJayvantbhai Chavda AIR 1998 Guj 17 – referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No.5884of 2009.

From the Judgment and Order dated 21.07.2008 of the High Courtof Karnataka at Bangalore in R.F.A. No.331 of 2005.

G. V. Chandrashekar, Ms. Apeksha D., N. K. Verma, Ms. AnjanaChandrashekar, Advs. for the Appellants.

Karunakar Mahalik, B. Vishwanath Bhandarkar, SarbendraKumar, V. N. Raghupathy, Advs. for the Respondents.

The Judgment of the Court was delivered by

ANIRUDDHA BOSE, J.

1. The appellants before us are the plaintiffs in suit instituted inthe year 1987 by their predecessor Arakeri Abbaiah claiming fordeclaration of ownership of certain immovable property comprising of10.54 guntas situated in Vibhuthipura Village, Krishnarajapura Hobli,Bangalore South Taluk. Relief was also claimed in that suit in the formof injunction directing the defendants therein not to interfere with hispeaceful possession and enjoyment of the suit-property. On his death,Arakeri Abbaiah’s legal representatives were brought on record. In thisjudgment, we shall refer to Arakeri Abbaiah as the original plaintiff. Hewas the son-in-law of the first defendant in the suit- Muniyappa. Boththe defendants have passed away subsequently and their legalrepresentatives are on record. The original second defendant was theson of the first defendant at the time the suit was instituted. Prior to thissuit, another suit was filed by the original plaintiff involving broadly thesame immovable property in the year 1982. We shall discuss about thesaid suit later in this judgment and the two suits shall be henceforthreferred to by their years of institution, i.e. 1982 suit and 1987 suitrespectively. The case of the original plaintiff before the Trial Court wasthat he had purchased the suit land from its erstwhile owner, Papaiahunder registered sale deed dated 29[th] May, 1972. The total area of theland that the original plaintiff claimed to have had purchased was 1 acre15 guntas and the disputed property forms part of that block of land. In

Athe plaint, the original plaintiff’s case was that he was in exclusivepossession and enjoyment of the suit land ever since the date of purchase.

2. The subject-suit, i.e. the 1987 suit was founded, inter-alia, onthe allegation that the defendants were making attempts to interferewith the original plaintiff’s peaceful possession and enjoyment of theBproperty. It was specifically alleged that on 15[th] February, 1987 thedefendants interfered with the peaceful possession and enjoyment ofthe suit land. It has also been alleged in the plaint that attempt to trespassinto the suit scheduled property was repeated by the defendants on 25[th]February, 1987. In the 1987 suit, as we have already indicated, reliefsclaimed included declaration to the effect that the original plaintiff wasCthe absolute owner of the suit land and prayer was also made forpermanent injunction.

3. The original plaintiff had instituted the earlier suit in the Courtof XVIII Additional City Civil Judge at Bangalore City. The 1982 suitwas for perpetual injunction, and the claim for injunctive relief was similarDto that asked for in the 1987 suit though not on the same allegation ofinterference. The earlier suit was registered as O.S. No. 3029/82. Thesaid suit was dismissed by the Trial Court on the ground that the plaintiffcould not establish his lawful possession. The decision of the Trial Courtin the 1982 suit was appealed against by the predecessor of the presentEappellants, but that appeal was also dismissed by the High Court ofKarnataka on 25[th] November, 1986. It was thereafter the suit, fromwhich the present appeal arises, was instituted showing threats ofdispossession on the aforesaid two dates. This suit was contested by thedefendants by filing written statement and they had set up title forthemselves. The defendants raised the plea of purchase of the suit landFin benami transaction, and the first defendant claimed to be the realowner of the suit land. The said suit was dismissed on 7[th] November,1997. It has, however, been stated in the list of dates contained in thepaperbook that the Trial Court did not accept the defendants’ plea ofbenami transaction.G

4. This judgment was appealed against by the plaintiff before theHigh Court. In appeal, the legal representatives of the original plaintiffwere brought on record. The appeal was allowed by the High Court andthe matter was remitted to the Trial Court. In the judgment of the HighCourt delivered on 19[th] August, 2004 by which the matter was remanded,Hit was, inter-alia, held and directed:-

“4. In this suit, the plaintiff has produced R o R extracts markedat Exs. P-4 to P.6 to prove his possession around the date of thesuit. The Plaintiff, on his part, has tendered evidence. TheDefendants although filed Written Statement, have failed to cross-examine the Plaintiff witnesses and failed to let in their evidenceThe dismissal of earlier injunction Suit would not come in the wayof the plaintiff to file Suit to seek comprehensive relief ofdeclaration of title. But the earlier Suit for permanent injunctionwas dismissed on the ground that the Plaintiff failed to prove hispossession. The RoR extracts produced by Plaintiff at Exs. P. 4to P. 6 show that Plaintiff is in possession. The trial court withoutreference to the said evidence, has mechanically come to theconclusion that the filing of the present suit is not maintainable inview of the dismissal of the earlier suit and the related regularfirst appeal. In that view of the matter, it is just and necessary thatthe judgment of the Trial Court has to be set aside.5. Accordingly, the impugned judgment of the trial court is setaside and the matter is remitted to the Trial Court for fresh disposalin accordance with Law. If Defendants participate and requestfor summoning PW 1 and PW 2 for the purpose of Cross-examination, the request is to be granted and so also Defendantsshould be permitted to adduce their evidence. No fresh noticesneed be issued to the parties by the Trial Court. Parties aredirected to appear before the Trial Court on 06/09/2004. LCRs tobe transmitted forthwith. The suit is to be disposed of by the endof December 2004. The legal representatives of the appellantPlaintiff are entitled to get themselves impleaded in the suit byfiling memo and getting the cause title amended accordingly. Itis said that PW 1 is dead. The Plaintiff is also entitled to adduceadditional evidence if he so desires.”

(quoted verbatim from the copy of the judgment asreproduced in the paperbook)

5. On remand, the Court of VIII Additional City Civil Judge atBangalore City in the judgment delivered on 18[th] December, 2004 foundthat the plaintiffs (the plural form is being used as the suit was beingprosecuted from that point of time by legal representatives of thedeceased plaintiff) had proved ownership to the suit property. But on the

Aaspect of possession and obstruction thereto, the finding of the Courtwent against the plaintiffs. The defendants’ stand that the plaintiffs werenever in possession of the property and there was no cause of action forthe suit was upheld. The Trial Court went against the plaintiffs mainly onthe ground that the plaintiff could not establish that he was in possession.The Trial Court referred to the evidence of the plaintiff witness no. 1,Bi.e. the original plaintiff who had admitted that his father-in-law was inpossession of the suit land and was cultivating thereon. In the 1987 suit,the original plaintiff could not demonstrate as to how he came inpossession of the suit-land after dismissal of the 1982 suit. This suit wasdismissed, inter-alia, on the following reasoning:-C

“(i)Though the plaintiff had admitted that the first defendantwas in possession and cultivation of the suit land, he did notask for relief for possession.

(ii)Mere suit for declaration was not maintainable without theDrelief for possession. By declaring the plaintiff was theowner of the property, no purpose would be served.”

6. It was also held in that judgment that the suit was time-barred.On the point of limitation, it was held by the Trial Court, on remand:-

“15. ……Further the dispute of title is confirmed by filing theEWritten Statement by the Defendant No. 1 on 28/01/1983 but thePlaintiff filed the present suit on 02/03/1987 after lapses of 4 years2 months. The Plaintiff had to file this suit within 3 years from thedate of filing the written statement by the present Defendant inO.S 3029/82. But filed after 4 years two months. So, the Suit filedFby the Plaintiff for declaration of title is barred by time. AccordinglyI answer Issue No. 5 in affirmative.”

(quoted verbatim from the copy of the judgment asreproduced in the paperbook)

G7. Against this judgment of dismissal, the plaintiffs approachedthe High Court of Karnataka. The appeal was registered as RegularFirst Appeal No. 331 of 2005 and was ultimately dismissed on 21[st] July,2008.

8. We find from the judgment under appeal that in course of hearingHbefore the High Court, the plaintiffs sought to amend the plaint seeking

alternative relief of possession of the suit property from the defendants.On that point, the High Court has observed and held:-

“6. ……..The dispute between the parties is pending from theyear 1982. The Trial Court vide judgment dated 7.9.1985 in O.S.No. 3029/82 held that plaintiffs were not in possession andenjoyment of the schedule property as on the date of filing the suitin the year 1982. After lapse of 26 years, the plaintiffs are nowfiling the application seeking amendment of plaint for alternativerelief for recovery of possession of the schedule property. I perusedthe affidavit filed and I am not satisfied with the explanation ofthe Plaintiffs for delay in filing the application for amendment. Itis not case where the Plaintiffs were not aware of the fact, thatthe Trial Court in its judgement dated 7.9.1985 in O.S. No. 3029/82 held that the Plaintiff was not in possession of the scheduleproperty. At this length of time, if the application of Plaintiff isallowed, it will lead to de-novo trial. Therefore, the application ofthe Plaintiff for amendment of the plaint is hereby rejected.”

(quoted verbatim from the copy of the judgment reproducedin the paperbook)

9. The High Court’s opinion was based on the reasoning containedin an earlier decision of the same High Court, the case of Sri Aralappavs. Sri Jagannath & others (ILR 2007 Kar 339). In this judgment, itwas held:-

“31. Even if the plaintiff comes to Court asserting that he is inpossession and that if it is found after trial that he was not inpossession on the date of the suit, even then, the suit for declarationand permanent injunction is liable to be dismissed as notmaintainable, as no decree for permanent injunction can be grantedif the plaintiff is not in possession on the date of the suit. In suchcircumstances, it is necessary for the plaintiff to amend the plaintbefore the judgment and seek relief of possession. Therefore, asuit for declaration of title and permanent injunction, by the plaintiffwho is not in possession on the date of the suit, when he is able toseek further relief of recovery of possession also, omits to do so,the Court shall not make any such declaration and the suit is liableto be dismissed as not maintainable”.

A10. Before us, it has been urged on behalf of the appellants thathaving regard to the provisions of Section 34 of the Specific Relief Act,1963, the suit ought not to have been dismissed as along with claim fordeclaration, injunctive relief was also asked for. Section 34 of the 1963Act reads:-B“Discretion of court as to declaration of status or right. –Any person entitled to any legal character, or to any right as toany property, may institute suit against any person denying, orinterested to deny, his title to such character or right, and thecourt may in its discretion make therein declaration that he is soCentitled, and the plaintiff need not in such suit ask for any furtherrelief:

Provided that no court shall make any such declaration where theplaintiff, being able to seek further relief than mere declarationof title, omits to do so.

Explanation. – trustee of property is “person interested todeny” title adverse to the title of some one who is not in existence,and whom, if in existence, he would be trustee.”

The aforesaid provision of law has been construed uniformly in aseries of judgments. In the case of M. K. Rappai and Ors. vs. JohnEand Ors. [(1969 (2) SCC 590] dealing with similar provision in Section42 of the Specific Relief Act, 1877, which was identically phrased, itwas held:-

“12. ………a bare declaration of right will be within the mischiefFof Section 42 of the Specific Relief Act, 1877 and Section 34 ofthe Specific Relief Act, 1963.”

Same proposition of law has been followed in Ram Saran andAnr. vs. Smt. Ganga Devi [(1973) 2 SCC 60], Vinay Krishna vs.Keshav Chandra and Anr. [(1993) Supp 3 SCC 129] and AnathulaGSudhakar vs. P. Buchi Reddy (Dead) By LRS. And Ors. [(2008) 4SCC 594].

11. The High Court, on factual score, observed in the judgmentunder appeal:-

“8. I am in full agreement with the view taken by the learnedSingle Judge in Aralappa’s case. In the instant case the finding ofthe Trial Court in O.S. No. 3029/82 stating that the Plaintiffs werenot in possession and enjoyment of the schedule property hadbecome final. It is not the case of Plaintiff that subsequent tojudgement in O.S. No. 3029/82 he recovered the possession ofthe schedule property. That being the situation, there was noimpediment for the Plaintiff’s to seek the relief for recovery ofpossession when they filed O.S. No. 1014/87. The Plaintiffs havingomitted to seek further relief of possession they are not entitledfor declaring and injunction. The reasoning of the Trial Court inthe impugned judgment is in accordance with law and the same issupported by evidence on record. I find no justifiable ground tointerfere with the impugned judgment passed by the Trial Court.”

(quoted verbatim from the copy of the judgment asreproduced in the paperbook)

12. The position here is that the original plaintiff sued for declarationof title and possession in the 1987 suit. The first Court found the originalplaintiff not to be in possession. It is true that reliefs claimed by theoriginal plaintiff were both for declaration and injunction, but the latterhaving failed to establish possession of the suit land, his case for injunctionrestraining the defendants from interfering with the suit land failed. Theplaintiffs want us to proceed on the basis that since the Trial Court foundownership of the suit property having been proved, possession shouldhave been presumed. In two High Court decisions, Devish vs. M.K.Subbiah and Ors. (AIR 1970 Mys 249) and Navalram LaxmidasDevmurari vs. Vijayaben Jayvantbhai Chavda (AIR 1998 Guj 17),the presumption of law that possession follows tittle has been highlighted.

13. Our attention has also been drawn to certain portions of M.Krishnaswamy’s “Law of Adverse Possession” (12[th] Edition). In thiscommentary, the author has summarised the legal position in relation topresumption of law in relation to vacant lands in the following manner: -

“Possession is not necessarily the same as actual user. To provepossession, it is not necessary, generally, to prove user of land. Ifthe land is of such nature as to render it unfit for actual enjoymentin the usual modes, it may be presumed that the possession of theowner continues until the contrary is proved.

AThe jurisprudential concept of possession is made up of twoingredients: (i) the corpus: and (ii) the animus. Corpus meansactual exclusive physical CONTROL over the property denotingphysical possession. The animus denotes the intention and exerciseof right to possess the property as owner to the exclusion of others.These, two ingredients put together go to constitute legalBpossession. Thus, the mere throwing of Gudha (Garbage) overan open plot of land for very long period much more than even12 years will not constitute legal possession of the persons throwingGudha and muchless can such user ripen into adverse possessionso as to extinguish the title of the rightful owner.”

14. But these statements of law would not operate in this case, asthe original plaintiff in the earlier suit had admitted possession as alsouse of the subject-land by the first defendant. No case of granting rightof user has been made out either. Neither the plaintiff has alleged casualuse of the subject-land by the first defendant. The original plaintiff’sDclaim for possession was rejected in the 1982 suit and in the subsequentsuit also, which gives rise to this appeal, the plaintiffs could notdemonstrate repossession of land on the basis of which he could obtaininjunctive relief from disturbance of possession. In both the two reporteddecisions in the cases of Devish (supra)and Navalram LaxmidasEDevmurari (supra)referred to earlier, the first two Courts – being theCourts of fact had come to affirmative finding about the plaintiffs’possession of the suit property. So far as the proceeding before us isconcerned, the finding of the First Court is otherwise. The plaintiffssought to introduce prayer for recovery of possession to cure the defectof not having made out case on that count by way of amendment ofFplaint at the appellate stage. The High Court rejected this prayer. Wehave quoted earlier in this judgment the reason for such rejection. Weare in agreement with the High Court on this point. While in situationof this nature, amendment of plaint could be asked for (Vinay Krishnavs. Keshav Chandra and Anr.), such plea ought to have been madewithin the prescribed limitation period. This position of law has beenGclarified in the case of Venkataraja and Ors. vs. VidyaneDoureradjaperumal (Dead) Through Legal Representatives andOrs. [ (2014) 14 SCC 502]. In this case, it has been held:-

“24. mere declaratory decree remains non-executable in mostHcases generally. However, there is no prohibition upon party

from seeking an amendment in the plaint to include the unsoughtrelief, provided that it is saved by limitation. However, it is obligatoryon the part of the defendants to raise the issue at the earliest.(Vide Parkash Chand Khurana vs. Harnam Singh and State ofM.P. vs. Mangilal Sharma).”

15. We agree with that part of the decision of the High Court inwhich it has been held that possession of the suit property was notestablished by the plaintiffs and hence injunctive relief could not begranted. As we have already recorded, we are also in agreement withthe High Court’s reasoning for rejecting the plea for amendment. Butwe do not agree fully with the entire reasoning of the High Court fordismissal of the appeal as spelt out in the said judgment. The bar containedin proviso to Section 34 of the 1963 Act, in our opinion, could not beapplied in the case of the plaintiffs as consequential relief for injunctionfrom interference with the suit-land was claimed. The prohibitioncontained in the proviso to Section 34 would operate only if the solerelief is for declaration without any consequential relief. In the plaint ofthe 1987 suit, relief for injunction was asked for. Such dual relief wouldprotect the suit from being dismissed on maintainability ground. It is afact that the plaintiff ought to have had asked for recovery of possession,given the factual background of this case, but the plaint as it was originallyframed reflected that the original plaintiff was in possession of the suitland. Such plea rightly failed before the Trial Court and the First AppellateCourt.

16. The prohibition or bar contained in proviso to Section 34 of the1963 Act determines the maintainability of suit and that issue has to betested on the basis the plaint is framed. If the plaint contains claims fordeclaratory relief as also consequential relief in the form of injunctionthat would insulate suit from an attack on maintainability on the soleground of bar mandated in the proviso to the aforesaid section. If onevidence the plaintiff fails on consequential relief, the suit may bedismissed on merit so far as plea for consequential relief is concernedbut not on maintainability question invoking the proviso to Section 34 ofthe 1963 Act. If the plaintiff otherwise succeeds in getting the declaratoryrelief, such relief could be granted. On this count, we do not accept theratio of the Karnataka High Court judgment in the case of Sri Aralappa(supra) to be good law. In that decision, it has been held:-

A“31. Even if the plaintiff comes to Court asserting that he is inpossession and that if it is found after trial that he was not inpossession on the date of the suit, even then, the suit for declarationand permanent injunction is liable to be dismissed as notmaintainable, as no decree for permanent injunction can be grantedif the plaintiff is not in possession on the date of the suit. In suchBcircumstances, it is necessary for the plaintiff to amend the plaintbefore the judgment and seek relief of possession. Therefore, asuit for declaration of title and permanent injunction, by the plaintiffwho is not in possession on the date of the suit, when he is able toseek further relief of recovery of possession also, omits to do so,Cthe Court shall not make any such declaration and the suit is liableto be dismissed as not maintainable”.17. So far as the reliefs claimed in the suit out of which this appealarises, prayer for declaration was anchored on two instances ofinterference with the possession of land of the plaintiffs and injunctiveDrelief for restraint from interference with the property was also claimed.But possession of the said property by the original plaintiff was notestablished. The alternative relief sought to be introduced at later stageof the suit was also found to be incapable of being entertained for thereason of limitation. Thus, the foundation of the case of the plaintiffsEbased on these two factual grounds collapsed with the fact-finding Courtsrejecting both these assertions or allegations. But that factor ought notto be ground for denying declaration of ownership to the plaintiffs.There is no bar in the Specific Relief Act, 1963 in granting standalonedeclaratory decree. The Trial Court came to positive finding that theoriginal plaintiff was the owner of the suit-property. But it held that inFabsence of declaration of relief of possession by the plaintiff, declarationof title cannot be granted. We have already expressed our disagreementwith this line of reasoning. It seems to be misconstruction of theprovisions of Section 34 of the 1963 Act. The Trial Court and the HighCourt have proceeded on the basis that the expression “further relief”employed in that proviso must include all the reliefs that ought to haveGbeen claimed or might have been granted. But in our view, that is not therequirement of the said proviso. This takes us to the corollary questionas to whether the 1987 suit could have been held to be barred under theprinciple contained in Order II Rule 2 of the Code of Civil Procedure,1908. In our opinion, the said provisions of the Code would not apply inH

the facts of this case, as the denial of legal right in the 1987 suit ispegged on two alleged incidents of 15[th] and 25[th] February, 1987. Theseallegations can give rise to claims for declaration which obviously couldnot be made in the 1982 suit. The claim for declaratory decree couldwell be rejected on merit, but the suit in such case could not be dismissedinvoking the principles incorporated in Order II Rule 2 of the Code of1908.

18. The High Court has proceeded on the footing that in thesubject-suit, the original plaintiff must have had asked for relief forrecovery of possession and not having asked so, they became disentitledto decree for declaration and possession. But as we have alreadyobserved, the proviso to Section 63 of the 1963 Act requires makingprayers for declaration as well as consequential relief. In this case, if therelief on second count fails on merit, for that reason alone the suit oughtnot to fail in view of aforesaid prohibition incorporated in Section 34 ofthe 1963 Act.19. Having opined on the position of law incorporated in Section34 of the 1963 Act, we shall again turn to the facts of the present case.The first suit was for perpetual injunction, in which the original plaintifflost for failing to establish possession. In the second suit (the 1987 suit),reliefs were claimed for declaration based on allegation of subsequentdisturbances and on that basis injunctive relief was asked for. Theplaintiffs’ claim for being in possession however failed. Thus, no injunctioncould be granted restraining the defendants from disturbing or interferingwith the original plaintiffs’ possession of the suit land. But as the TrialCourt found ownership of the original plaintiff was proved, in our viewthe original plaintiff was entitled to declaration that he was the absoluteowner of the suit property. There is no bar in granting such decree fordeclaration and such declaration could not be denied on the reasoningthat no purpose would be served in giving such declaration. May besuch declaratory decree would be non-executable in the facts of thiscase, but for that reason alone such declaration cannot be denied to theplaintiff. Affirmative finding has been given by the Trial Court as regardsownership of the original plaintiff over the subject-property. That findinghas not been negated by the High Court, being the Court of First Appeal.In such circumstances, in our opinion, discretion in granting declaratorydecree on ownership cannot be exercised by the Court to deny such

Arelief on the sole ground that the original plaintiff has failed to establishhis case on further or consequential relief.

20. In these circumstances, we sustain the judgment of the HighCourt that the plaintiffs were not entitled to injunctive relief as prayedfor and also the rejection of the plaintiffs’ plea for introduction of reliefBfor possession. But at the same time, we set aside that part of thejudgment by which it has been held that the plaintiffs were disentitled todeclaration of ownership of the property. We accordingly hold that theplaintiffs are entitled to declaration that they are owners of the suitproperty and there shall be decree to that effect.

C21. The appeal is party allowed in the above terms.

22. There shall be no orders as to costs.

Ankit Gyan

Appeal partly allowed.