Madhya Pradesh High Court
Keshiya & Ors. vs Ghisilal & Anr on 11 September, 2012
HIGH COURT OF MADHYA PRADESH: PRINCIPAL SEAT AT JABALPUR
(M.P.)
Second Appeal No.714 OF 1994
1. Keshiya alias Keshar Singh son of Ganpat
2. Karan Singh son of Nandram
3. Ghisiya son of Hiralal
4. Devkaran son of Mulloo
5. Haribaksh son of Parasram
6. Ramprasad son of Ganpat
7. Nandram son of Parasram
All residents of village Palkhedi,
Tahsil Echhawar District Sehore M.P.
...Appellants/defendants
Versus
1. Ghisilal son of Khushilal, occupation Agriculture
R/o Village Palkhedi, Tahsil and District Sehore
...Respondent/Plaintiff
2. State of M.P. through the Collector, Sehore
...Respondent/defendant
Second Appeal No.748 OF 1994
1. Keshiya alias Keshar Singh son of Ganpat
2. Karan Singh son of Nandram
3. Ghasiya son of Hiralal
4. Devkaran son of Mulloo
5. Haribaksh son of Parasram
6. Ramprasad son of Ganpat
7. Nandram son of Paras Ram
All residents of village Palkhedi,
Tahsil Echhawar District Sehore M.P.
...Appellants/defendants
Versus
1. Ghisilal son of Khushilal, occupation Agriculture
R/o Village Palkhedi, Tahsil and District Sehore
...Respondent/Plaintiff
2. State of M.P. through the Collector, Sehore
...Respondent/defendant
Shri R.K.Samaiya, learned counsel for appellants.
None for respondent No.1.
2
S.As.No.714/94 & 748/94
JUDGMENT
(Passed on 11.9.2012) Second Appeal No.714/1994 was admitted on 4.10.1996 on the following substantial question of law:-
"Whether the Courts below were justified in granting a decree for declaration in favour of the appellants despite holding that the plaintiff is not in possession and further erred in holding that the plaintiff who was not in possession of the property ought to have asked for a relief of possession also?"
2. Second Appeal No.748/1994 was admitted on 6.5.2009 on the following substantial question of law:-
"Whether the Courts below were justified in granting a decree for declaration in favour of the appellants despite holding that the plaintiff is not in possession and further erred in holding that the plaintiff who was not in possession of the property ought to have asked for a relief of possession also ?
3. Before proceeding further, it would be appropriate if factual position in both appeals is stated. That Ghisilal, respondent, filed a civil suit against appellants and the State of M.P. before the 4th Civil Judge Class-II, Sehore which was registered as Civil Suit No.3-A/1992. This civil suit was partially decreed by the trial Court by judgment and decree dated 6.8.1993. Aggrieved by the judgment and decree passed by the trial Court, Ghisilal and the appellants herein both had preferred two appeals before the Court below. The appeal preferred by the appellants was registered as Civil Appeal No.12-A/1994 while the appeal preferred by respondent Ghisilal was registered as Civil Appeal No.11-A/1994. By a common judgment, both appeals were decided by the 3rd Additional District Judge, Sehore, against which defendants have preferred two appeals before this Court because against the judgment and decree passed by the trial Court, two appeals were filed before the first appellate Court and the both appeals were decided. So the appellants/defendants have chosen to file two appeals before this Court. As the substantial questions of law as framed in both appeals are identical, these appeals are being decided by this common order.
4. Respondent Ghisilal filed the suit on 5.6.1989 on the ground that he was recorded Bhoomiswami of Survey No.202/G (part of Survey No.202/132) area 0.554 Hectare of village Palkhedi, Tahsil Ichhawar. On the aforesaid land, he was in possession. The plaintiff had invested Rs.20,000/- to make the land cultivable. Earlier this land was Nistar land. Plaintiff had remained in possession of the land for a long period. After change of the nature of the land, the land was settled in favour of the plaintiff on 10.3.1986 and a lease-deed was also granted in favour of the plaintiff on 26.4.1987. The competent officer also demarcated the 3 S.As.No.714/94 & 748/94 land and affirmed the possession of the plaintiff on the land. The suit was filed for declaration and perpetual injunction.
5. The appellants herein had filed an application before the Sub-Divisional Officer on the ground that the land was Nistar land. It was pending at the time of filing of the suit. An appeal was also preferred by Balram against grant of Patta to the plaintiff. The plaintiff also objected in the said appeal as defendants were threatening to the plaintiff for forcible dispossession and they were also quarrelling with the plaintiff. In this regard, a report was also lodged by the plaintiff.
6. The defendants/appellants had filed a written statement in which they have admitted that the plaintiff was recorded Bhoomiswami of the land and he was granted Patta. But the Defendant Balram had preferred an appeal which was pending at that time. The defendants also contested the suit on the ground that the plaintiff was not in possession of the land. In fact the land was a Nistar land of the villagers and was utilized by the villagers for the same purposes. In the village, there was no other land available for Nistar purposes. The plaintiff was not in possession of the land. The plaintiff had got Patta, but on the basis of Patta in his favour, possession cannot be found. The defendants had never dispossessed the plaintiff. The defendants always remained in possession of the land and they had never quarreled with the plaintiff. On the aforesaid ground, the suit was contested.
7. The trial Court framed issues and after recording evidence found that the plaintiff was successful in proving his title, but refused to grant a decree of perpetual injunction against the defendants. The trial Court also recorded a finding that the defendants were in possession of the land. Against partial decree of the suit, two appeals were preferred, but were dismissed by the first appellate Court. The first appellate Court in Para 14 of the judgment re-appreciated the evidence and recorded a finding that the appellants herein were in possession of the land and on the aforesaid ground, the plaintiff was not found entitled for a decree of perpetual injunction and dismissed both the appeals.
8. In this case, it is not in dispute that both Courts below recorded a concurrent finding that the plaintiff was not in possession of the land though his title was proved. When the plaintiff was not in possession of the land, a suit for mere declaration of title was not maintainable. Though a liberty ought to have been allowed by the Courts below for permitting the plaintiff to amend the suit 4 S.As.No.714/94 & 748/94 and to claim relief of possession, but the respondent/plaintiff has not caused appearance before this Court and no such prayer was made before the Court below, in absence of which it will be futile to give such a liberty to the plaintiff.
9. Section 34 of the Specific Relief Act, 1963 provides 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. In this case both Courts below have recorded a concurrent finding that the plaintiff was not in possession of the land. Now in these circumstances, when the plaintiff was not in possession though was able to seek a further relief of possession of the land, but had omitted to do so, he was not entitled even for a decree of declaration of title. The grant or refusal of the relief of declaration of title under Section 34 of the Specific Relief Act is discretionary. The plaintiff cannot claim relief as of right. It has to be granted according to the sound principle of law. The plaintiff was having liberty to claim relief of possession from the appellants but the plaintiff had never moved any application seeking amendment in the plaint for seeking relief of possession, in absence of which, the Court below erred in granting a decree for declaration of title to the plaintiff (See: M.K.Rappai Vs. John (1969) 2 SCC 590).
10. In the result, both appeals are allowed. The suit filed by the respondent/plaintiff Ghisilal is dismissed with no order as to costs.
(Krishn Kumar Lahoti)
C. JUDGE