Rajasthan High Court - Jodhpur
Dinesh Jain & Anr vs Jitendra Pandya & Ors on 16 February, 2018
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Revision No. 180 / 2016
1. Dinesh Jain S/o. Sh. Laxmi Lal Ji Jain, at present Chairman,
Vanvasi Sewa Sangh, Rajasthan Society registered under the
Rajasthan Societies Registration Act having registration
no.140/2000-2001, Office at Ren Basera 101 Hospital Road,
Udaipur (Raj.) Administrative Office at 2, Nimachmata Scheme,
Udaipur.
2. Pratap Singh Rathore S/o Jaggannath Singh Ji Rathore,
Sanrakshak, Vanwasi Sewa Sangh, 2 Nimach Mata Scheme,
Udaipur
(Address as give in the civil suit whereas actual address is Vanvasi
Sewa Sangh premises, Khempura, Sundarwas, Udaipur)
----Petitioners/Defendants nos. 5 and 6 in CO No.5/16
Versus
1. Jitendra Pandya S/o Late Sh. Deen Bandhu Ji Pandya,
Chairman, Rajasthan Sewa Sangh, Dungarpur.
2. Kanaiya Lal Upadhyay S/o Narbadashanker Upadhayay,
Secretary, Rajasthan Sewa Sangh, Dungarpur (Raj.).
----Respondents/Plaintiffs in CO No.5/16
3. State of Rajasthan through the District Collector, Udaipur.
4. Urban Improvement Trust through Secretary, Udaipur.
5. Municipal Corporation, Udaipur through Commissioner and
Mayor, Municipal Corporation, Udaipur.
6. Tehsildar Girwa, Tehsil - Girwa, District - Udaipur.
----Respondents/ Defendants nos. 1 and 4 in CO No.5/16
_____________________________________________________
For Petitioner(s) : Dr. Sachin Acharya.
For Respondent(s) : Mr. Manish Shishodia.
_____________________________________________________
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 16/02/2018 This revision petition is directed against the order dated 16.08.2016 passed by the Additional District Judge No.2, Udaipur (2 of 9) [CR-180/2016] ('the trial court'), whereby the application filed by the petitioners- defendants under Order VII, Rule 11 CPC read with Section 34 of the Specific Relief Act, 1963 ('the Act'), has been rejected.
The plaintiffs filed a suit for declaration of gift-deed dated 27.05.2015 as null & void and for permanent injunction. It was, inter alia, claimed in the plaint that the gift-deed in question was executed by defendant No.6 - Pratap Singh Rathore claiming himself to be the Sanrakshak of Vanvasi Sewa Sangh in favour of Municipal Corporation, Udaipur for a piece of land admeasuring 11000 sq. feet. It was, inter alia, claimed that the Vanvasi Sewa Sangh was no more in existence as the same came to be merged with Rajasthan Sewa Sangh, which is a Society registered under the provisions of Societies Registration Act having possession and ownership of the land in question. Based on the said averments, relief was claimed that the gift-deed be declared null & void qua the rights of the plaintiffs and permanent injunction be granted that no construction be raised on the land in question. Further relief was sought regarding the status of Vanvasi Sewa Sangh and that if any construction was raised on the land in question during the pendency of the suit and/or the same is transferred to any other party, the status quo ante as on the date of suit be ordered to be restored.
Certain averments were made in the plaint regarding events, which took place on 24.04.2015 purportedly for celebrating the 65th Establishment Day of the defendant-Society and coming into possession and announcing gift of the land in question.
(3 of 9) [CR-180/2016] An application under Order VII, Rule 11 CPC was filed by the petitioners with the submissions that from averments made in paras 33, 35, 39, 41 and 42 of the plaint, it is apparent that the plaintiffs are not in possession of the land and in absence of relief for possession, simple suit for declaration does not disclose a cause of action, the same was barred by law and, therefore, the plaint was liable to be rejected.
A reply to the application was filed by the plaintiffs. Submissions were made that the possession, if any, was not legal and the right, title and possession have always been with the plaintiffs. Submissions were made that the plaintiffs continue to be in possession of the land in question and, therefore, the application is liable to be rejected.
The trial court after hearing the parties, came to be conclusion that provisions of Section 34 of the Act does not bar the jurisdiction of the Court, the cognizance of defence cannot be taken, no admission has been made that plaintiffs have been dispossessed from the land in question and, therefore, it cannot be said that the suit was barred by law and, consequently, dismissed the application.
It is submitted by learned counsel for the petitioners that the trial court committed grave error of law in rejecting the application. It was submitted with reference to several paragraphs in the plaint that on the date of filing of the suit, the plaintiffs were not in possession and despite that relief seeking possession was not claimed in the plaint while seeking cancellation of the gift-deed and, therefore, in view of provisions of Section 34 of the (4 of 9) [CR-180/2016] Act, the plaint was liable to be rejected. It was submitted that averments made in the plaint are unequivocal and, therefore, the same do not require any evidence in this regard and, consequently, the plaint is liable to be rejected.
Reliance was placed on Badiya & Ors. v. State of Rajasthan & Ors.: SBCW No.82/1999, decided on 01.06.2017; Bhairu Lal Ors. v. Sohani & Ors.: 2014 (4) DNJ (Raj.) 1554 and Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust v. Chandran & Ors.: (2017) 3 SCC 702.
Vehemently opposing the submissions, learned counsel for the respondents-plaintiffs submitted that the application filed by the petitioners has no substance and the same was liable to be rejected. It was submitted that provisions of Section 34 of the Act merely vest discretion in the Court and the same does not bar the jurisdiction of the Court in entertaining the suit. Submissions were made that there is distinction between a suit being barred and a suit being not maintainable and it is only when a suit is barred by law, that the plaint can be rejected under Order VII, Rule 11(d) CPC and not otherwise. It was submitted that it is settled that a mere trespasser cannot force the true owner to file a suit for possession and a mere suit for injunction was maintainable.
With reference to the averments made in the pleadings, it was submitted that the plaintiffs continue to be in possession of the land in question part of which has been gifted away without any authority of law; the plaintiffs are running a school having a ground for sports and on that count also, the application was (5 of 9) [CR-180/2016] rightly rejected by the trial court and the revision petition also deserves to be dismissed.
Reliance was placed on Anathula Sudhakar v. P. Buchi Reddy Ors.: (2008) 4 SCC 594 and Arnab Kumar Sarkar v. Smt. Reba Mukherjee Ors.: AIR 2007 Calcutta 79.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
The frame of the suit, which was filed on 11.04.2016 seeking declaration of the gift-deed dated 27.05.2015 as null & void alongwith permanent injunction against the defendants, is based on facts regarding the property in question vesting in the Rajasthan Sewa Sangh, Dungarpur w.e.f. 01.12.1948 and that the defendants were seeking to claim title based on their status as office bearers of Vanvasi Sewa Sangh. Several averments have been made in the plaint pertaining to the status of the land in question for all these years and a specific reference has been made to the event dated 24.04.2015, wherein a function with the purported permission of the District Collector was held at the land in question and therein an announcement was made regarding gift of the land to the Municipal Corporation and whereafter the gift- deed was executed on 27.05.2015. While indicating the facts pertaining to the events dated 24.04.2015, it has been averred in the plaint that on the said date, the possession of the land was taken and the announcement was made.
In various paragraphs of the plaint, reference whereof have been made in the application filed by the defendants, the nature of allegations, merely allege attempts to trespass and/or question (6 of 9) [CR-180/2016] the status of the defendants/Society and attempts to take possession. Nowhere in the plaint, any averment has been made indicating dispossession of the plaintiffs and/or the fact that the defendants were in settled possession of the land in question, qua which the declaration was being sought in the plaint.
Provision of Section 34 of the Act reads as under:-
"34. 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 some one who is not in existence, and whom, if in existence, he would be a trustee."
Hon'ble Supreme Court in the case of Anathula Sudhakar (supra), while dealing with the issue of the scope of a suit for prohibitory injunction relating to immovable property after thoroughly dealing with the issue, inter alia, laid down as under:-
"21. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the (7 of 9) [CR-180/2016] property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
(Emphasis Supplied) Hon'ble Supreme Court, specifically laid down that where a plaintiff is a in lawful or peaceful possession of a property of such possession is interfered or threatened by the defendant, a suit for injunction simpliciter will lie.
So far as the proviso to Section 34 of the Act is concerned, the said provision which deals with discretion of Court as to declaration of status or right, provides that in a case where the plaintiff being able to seek further relief than a mere declaration of title, omits to do so, the Court shall not make any such declaration. The said proviso restricts the discretion of the Court (8 of 9) [CR-180/2016] as provided under Section 34 of the Act. The same does not bar the jurisdiction of the Court to entertain a suit.
The three judgments i.e. Badiya (supra), Bhairu Lal (supra) and Chandran (supra) cited by learned counsel for the petitioners, merely lay down that in absence of possession, a mere suit for declaration would be 'not maintainable' and in all the above cited cases after the written statement was filed, evidence was led and a finding regarding possession/nature of possession of the defendants was recorded by the trial court/authority, with reference to proviso to Section 34 of the Act, it was laid down that such a suit was not maintainable.
Calcutta High Court in the case of Arnab Kumar Sarkar (supra) while dealing with a similar issue, laid down that the proviso is not an absolute bar to the grant of declaration and that the proviso does not render the suit bad.
In view of the above fact situation and the legal position, it is apparent that the averments as contained in the plaint, by itself cannot be read as conceding the possession of the suit property in favour of the defendants though attempts on part of the defendants in seeking to take possession have been made in the plaint, which itself cannot be a reason for rejecting the plaint based on the proviso to Section 34 of the Act.
Though no submissions were made regarding the plaint not disclosing any cause of action, as the said submission was made in the application, having gone through the plaint averments, it cannot be said that the plaint does not disclose any cause of action as alleged in the application.
(9 of 9) [CR-180/2016] In view of the above discussion, the order passed by the trial court does not call for any interference.
Consequently, there is no substance in the revision petition, the same is, therefore, dismissed.
(ARUN BHANSALI)J. PKS