Karnataka High Court
Sri Aralappa Son Of Sri Chowrappa, Major vs Sri Jagannath Son Of Late Sri Chikka ... on 24 August, 2006
Equivalent citations: AIR2007KANT91, ILR2007KAR339, AIR 2007 KARNATAKA 91, 2007 (4) ALJ (NOC) 578 (KAR.) = AIR 2007 KARNATAKA 91, 2007 (3) AJHAR (NOC) 893 (KAR.) = AIR 2007 KARNATAKA 91, 2007 (1) AIR KAR R 516, 2007 A I H C 1356, (2007) ILR (KANT) 339, (2007) 4 CIVLJ 645
Author: N. Kumar
Bench: N. Kumar
JUDGMENT N. Kumar, J.
1. These two appeals arise, out of a common judgment but two decrees, passed by the 10th Additional City Civil Judge, Bangalore City in O.S. No. 10260/80 and O.S.No. 10261/80 after a common trial. Therefore, they are taken up for consideration together and are disposed of by this common Judgment. For the purpose of convenience, the parties are referred to, as they are referred to in the Original Suit.
2. O.S.No. 10260/80 was filed by Arokyaswamy, the plaintiff, against the defendant Jagannath for the relief of declaration, that he is the absolute owner and in possession of the plaint schedule property, for permanent injunction and for other consequential reliefs. Similarly, O.S.No. 10261/80 is filed by Aralappa, the plaintiff against the very same Jagannath, the defendant for the same relief. The suit schedule property in these two suits is two different bits of land in the same survey number.
3. The land beating Sy. No. 47/2 of Nagawara Village, Kasaba Hobli, Bangalore North Taluk, measuring 35 guntas each is the subject matter of both the suits. However, each one of them are claiming different portions in the said Sy.No. The case of the plaintiff in both the suits is that their father Chowrappa acquired Sy.No. 47/2 of Nagawara Village, Kasaba Hobli, Bangalore North Taluk under a registered sale deed dated 25.04.1960. It is his self acquired property. The said Chowrappa had three sons, including these two plaintiffs and they constituted a joint family. Under a registered Partition dated 20.12.1971, they effected partition of the joint family properties and the plaint schedule property measuring 35 guntas has fallen to the share of each of these plaintiffs. Though the partition took place in the year 1971, the revenue records continue in the name of their father. Ever since the date of partition, the plaintiffs are in possession and enjoyment of the suit schedule property. They are the absolute owners. They have raised crops like Ragi, Avare, etc., and on the date of the suit, there was standing crops. The defendant who is an utter stranger to the property, oil the morning of 16th November 1980 came near the land and attempted to interfere with the peaceful possession and enjoyment of the suit schedule property and also attempted to cut and remove the crop standing on the suit schedule property. But plaintiffs resisted the same. He asserted his title to the schedule property and proclaimed that he would remove the crop and dispossess the plaintiff. As the defendant denied the title of the plaintiffs, they were constrained to file two separate suits for the aforesaid reliefs.
4. Subsequently, the plaint was amended after noticing the plea of the defendant in the written statement. Paragraph 7(a) to 7(d) were added to the original plaint. In the said amendment it was alleged that the judgment and decree dated 10.04.1980 passed in O.S.No. 224/1978 on the file, of the Additional Civil Judge, Bangalore Rural District has been obtained by the defendant and others by fraud and the same is not binding on the plaintiffs. Neither the plaintiffs nor their father was aware of the said suit, nor they have received any notice of the said suit. Without prejudice to the said contention, it was alleged that the plaintiffs got right to the suit schedule property as long back as in the year 1971 under the partition deed and therefore, defendant ought to have made them as parties in the aforesaid suit. Though the defendant was fully aware of the said fact, deliberately the plaintiffs were not made parties and a decree was obtained by suppressing the true facts and therefore the said decree is not binding on them. In view of the stand taken by the defendant in the written statement that they have taken possession of the suit schedule property in Execution No. 137/1980 on 19.09.1980, it was alleged that the said delivery receipt and other documents connected therewith have been got up by the defendant in collusion with the Court Ameen. In fact, the possession of the suit schedule property continues with the plaintiff and they were never dispossessed by anybody ever since 1971.
5. The defendant has filed written statement in both the suits on identical terms. He has also filed additional written statement to the amended plaint. It is alleged in the written statement that the partition deed set up by the plaintiffs is a collusive document, dishonestly designed between the father and sons. It is evidently a dubious device to deliberately defraud the defendant, his mother and brothers of their just rights in the suit schedule property. As Chowrappa himself did not acquire any title to the property, he was completely incompetent to effect partition of the said property to any extent what so ever. Therefore, the plaintiff could not become the owner of the suit schedule property to any extent whatsoever. The sale deed under which the plaintiffs' father alleged to have acquired title has been declared as not valid and binding against the defendant, his mother and other brothers, as per the judgment and decree dated 10.04.1980 passed in O.S. No. 224/78 in which the plaintiffs' father Chowrappa and his brothers were parties. They denied that the plaintiffs have ever personally cultivated any portion of the suit schedule property or raised any crops therein. As their father Chowrappa was in wrongful possession, in the aforesaid suit, a decree for possession was granted along with decree for mense profits. In execution of the aforesaid decree in Ex. No. 137/80, through Court, possession was taken on 19.09.1980. Both the aforesaid judgment and decree and the Execution proceedings would operate as res judicata. In spite of the delivery taken by the defendant, in execution proceedings, when the plaintiffs illegally cut and removed the standing crop, the defendant was constrained to lodge a police complaint. As counter blast the plaintiffs have filed the present suit. Therefore, he contend that there is no cause of action for the suit. In the additional written statement, it was contended that the so called partition was merely a sham and colourable deed, it was not acted upon by the parties thereto. The revenue records continued in the name of Chowrappa and it was never entered in the name of the plaintiffs. The defendant was put in possession through the process of Court and the plaintiffs was not in possession on the date of the suit. As the defendant was completely unaware of the collusive partition deed executed by the father and the sons, plaintiffs were not made parties in the aforesaid suits. In fact, Chowrappa and his brother Durbar Chinnappa never whispered about this partition deed in the aforesaid proceedings. As the revenue entries continued to be in the name of Chowrappa even after two decades it shows it was not acted upon. The contention that the delivery taken is a nominal one is ridiculous and therefore they prayed for dismissal of the suit with exemplary cost.
6. On the aforesaid pleadings the trial Court framed the following issues in both the suits.
1. Whether the plaintiff proves that he was the owner of the suit schedule property?
2. Whether the plaintiff proves that he was in possession of the suit schedule property?
3. If so, is he entitled for an order of permanent injunction.
4. Whether plaintiff proves that the decree passed in OS No. 224/ 1978 is a fraudulent one?
5. Whether he further proves that the defendant has not taken the actual possession of the suit property by executing this decree is Execution Petition No. 137/80?
6. Whether he also proves that the decree in OS No. 224/78 is not binding on him?
7. Whether the defendant is entitled for exemplary costs under Section 35A of CPC?
7. In support of their contention Aralappa was examined as P.W-1, Arokyaswamy was examined as P.W-2. Neighbours of the suit schedule property by name V. Nanjappa & Ananathraj were examined as P.Ws-3 and 4. The partition deed on which the suit was based was marked as Rx.P-1. Index of land as Ex.P-2, Record of rights as Ex.P-3 and three, sale deeds as Ex.P-4 to Ex.P-7 and the certified copy of the judgment in O.S. No. 224/78 was marked as Ex.P-8. On behalf of the defendant, H. Jagannath was examined as D.W-1, he also examined Bailiff P.S. Rama Murthy who delivered the possession of the suit schedule property to him in pursuance of the delivery warrant as D.W-2 and he also examined C.V. Raju a witness to the mahazar as D.W-3 and got marked certified copy of the delivery warrant, as Ex.D-1, Mahazar copy as Ex.D-2, delivery receipts as Ex.D-3, copy of order sheets as Ex.D-4, mahazar in Ex.No. 137/80 as Ex.D-5, delivery warrant as Ex.D-6, Police Docket as Ex.D-7, mahazar as Ex.D-8, delivery receipts as Ex.D-9 and Delivery warrant as Ex.D-10.
8. On the basis of the aforesaid documentary and oral evidence on record, after hearing both the parties, the learned trial Judge, held, that the partition deed Ex.P-1 is not proved, no attesting witnesses or executant was examined. The records of the execution proceedings clearly showed that possession was delivered to the defendant. It held that the plaintiff was not in possession on the date of the suit and consequently he is not entitled to a decree of permanent injunction. Further it held with regard to the plea, that the decree in O.S.No. 224/78 is obtained by fraud is not substantiated by any evidence and therefore the plaintiff have failed to prove that it is a fraudulent one. Further it held that the defendant has established that he has taken possession of the suit schedule property in the execution proceedings and that he is in possession. However, it declined to grant exemplary cost sought for by the defendant. Accordingly, dismissed both the suits of the plaintiff. Aggrieved by the said judgment and decree of the trial Court dated 25.10.1988, the plaintiff in both the suits have preferred these appeals.
9. The learned Senior Counsel Sri. G.S. Vishweshwara appealing for the appellants submitted that the plaintiffs' title to the suit schedule property is based on the partition deed Ex.P-1 which is dated 20.12.1971. The suit in O.S.No. 224/1978 was filed in the year 1976 to which the plaintiffs were not made parties though their father was made a party. As on the date of the aforesaid suit, the plaintiffs' father Chowrappa had no subsisting interest in the property. The decree which is obtained against him would not in any way bind the plaintiffs nor it would in any way affect title of the plaintiffs to the property. Therefore, the Court below committed error in holding, that, because the sale deed in favour of Chowrappa was annulled in the aforesaid proceedings the plaintiffs had no title. Secondly he contended that the judgment and decree in O.S.No. 224/78 do not operate as res judicata in the present suit in as much as admittedly the suit decreed in O.S.No. 224/78 is an exparte decree, no issues were framed, no trial was conducted and therefore the finding of the trial Judge in this regard is erroneous. He further contended that, when the plaintiffs asserted in the plaint that on the date of the suit he was in possession, he was justified in seeking the relief of declaration and permanent injunction. Even if it is found after trial that the plaintiffs was not in possession on the date of the suit, it would not render the suit not maintainable as held by the trial Court. Therefore, he submitted that as the plaintiffs have acquired title under a registered partition deed the Court, committed serious error in not decreeing the suits.
10. Per contra, the learned Counsel appearing for defendant contended that admittedly Chowrappa was a Catholic Christian. He acquired title under a registered sale deed. It is averred in the plaint that it was his self acquisition. Therefore this concept of joint family is alien to Christians. Therefore, on the date of partition, plaintiffs had no vested right in the property. It is under that document, for the first time, they claim right to the said property. It is settled law, that partition is not a transfer and therefore, the plaintiffs did not acquire any title under the partition deed. Therefore they are not entitled to the relief of declaration. The evidence on record clearly establishes that plaintiffs had been dispossessed through the process of law and the defendant was put in possession and the plaintiffs were not in possession on the date of the suit. A suit for declaration without the relief of possession is hit by Section 34 of the Specific Reliefs Act, and was not maintainable. Lastly, it was contended that the decree in O.S.No. 224/78 was an exparte decree and Chowrappa was duly served with the suit summons. He did not choose to contest the said proceedings and therefore a decree came to be passed on the basis of the affidavit filed by the defendant. Assuming for the sake of argument, the judgment in the said suit is not in conformity with Order 41 Rule 35, it will not become void as the said judgment and decree is not challenged on that ground and is not set aside. It is valid and binding on the parties. Further it was pointed out that after the defendant took possession of the property, in pursuance of the decree passed in the aforesaid execution proceedings, plaintiffs father Chowrappa filed Miscellaneous Petition under Order 9 Rule 13 of CPC for setting aside the said exparte decree. After contest, the said Miscellaneous Petition came to be dismissed. Aggrieved by the said order he preferred Miscellaneous First Appeal before this Court which also came to be dismissed after contest and thus the aforesaid decree has become final. In that view of the matter, when the defendant has taken possession of the suit schedule property in pursuance of the valid decree passed, in execution proceedings, through Court, with the help of the Police, it is too late in the day for them to contend that they still continue to be in possession and delivery given to them is a sham one. Therefore, he submits that the plaintiffs have no manner right, title or interest, they are not in possession and therefore, the Court below was justified in dismissing their suit for declaration of title and for injunction.
11. In the light of the aforesaid material on record and the rival contentions of the parties, the points that arise for my consideration in these appeals are as under:
1. Whether the plaintiffs acquired any title under the registered partition deed -Ex.P-1?
2. Whether the trial Court was justified, in declining to grant the declaration sought for on the ground that the plaintiffs have not sought the relief of possession?
3. Whether the judgment and decree in O.S. No. 224/75 is binding on the plaintiffs?
Point No. 1:
12. The material on record discloses that Sy.No. 47/2, Nagavara Village, Kasaba Hobli, Bangalore North Taluk, originally was the ancestral property of Chikkahullurappa, the father of the defendant. The said Chikkahullurappa sold the aforesaid property under a registered sale deed dated 25.06.1956 in favour of one Darbar Chinnappa to an extent of two acres. Under a registered deed of reconveyance dated 02.08.1957 which is marked as Ex.P-5 the said Darbar Chinnappa reconveyed the property in favour of Cikkahullurappa. Again on 26.02.1958 Cikkahullurappa sold the aforesaid properly in favour of Darbar Chinnappa under registered sale deed Ex.P-6. On 25.04.1960 the said Darbar Chinnappa sold two acres of land in favour of Chowrappa the plaintiffs' father. Under a registered partition deed dated 20.12.1971 the said Chowrappa effected partition of his family properties including the aforesaid land. Under the aforesaid deed each of the plaintiffs were given distinct 35 guntas of land.
13. On 29.09.1976 the defendant has issued notice to Darbar Chinnappa informing him that the sale deed in his favour is not valid and not binding on him and calling upon him to deliver hack the possession of the said property. Again on 21.10.1976 one more notice was issued to Chowrappa reiterating the aforesaid request. On 02.11.1976 Chowrappa replied by stating that he is the bonafide purchaser for valuable consideration and the sale was for a legal necessity and therefore, he is not obliged to comply with the demand made in the said legal notice. However, on 08.12.1976 Jagannath attained majority. On 04.12.1976 he filed a suit for declaration that the aforesaid sale is not binding on him and for cancellation of the deed and for possession of the suit schedule properly. As he was unable to pay the Court tee, he filed a suit as in indigent person in Miscellaneous Case on 04.12.1976 in P.Misc. No. 198/1976. The said case was represented on 17.12.1976 before the appropriate Court. On 13.09.1978 he was permitted to prosecute the said suit. On 13.10.1978 the said suit was registered as O.S.No. 224/78. In the said suit summons were issued and Darbar Chinnapppa remained exparte. On the basis of the affidavit filed by the plaintiffs the Court being satisfied with the case of the plaintiffs decreed the same on 01.04.1980. Thereafter, the plaintiff in the said suit, i.e., defendant herein on 30.07.1980 filed Execution No. 137/80 seeking delivery of possession. On 19.09.1980 with the assistance of Police, the delivery warrant was executed and possession was delivered to the defendant. It is after the plaintiffs and their father were dispossessed in the aforesaid manner, on 21.11.1980 the present suits are filed. It is thereafter on 17.07.1982 Chowrappa filed Mis. No. 473/82 for setting aside the exparte decree dated 13.10.1978 in O.S.No. 224/78 under Order 9 Rule 13 of CPC. After service of notice the defendant herein contested the said proceedings and after such contest, it came to be dismissed on 20th July 1990. Aggrieved by the said order, Chowrappa filed MFA 1885/90 on 04.02.1992. There was a delay in filing the appeal. Therefore the application for condonation of delay was filed. The said application and the appeal were contested. After hearing both the parties, the MFA also was dismissed on 04.02.1992, by this Court.
14. The plaintiffs in paragraph 13 of the plaint, have categorically stated that the aforesaid property was a self acquired property of Chowrappa. In Ex.P-1 the partition deed the parties have described themselves as Roman Catholics. Therefore, in view of this categorical admission in the plaint as well as in the registered partition deed, it is clear that they are not members of Hindu undivided family as understood under Hindu Law. They are, governed by the provision of Indian Succession Act. In the property of the father, during his life time the sons do not get any right. The concept of blending, known under Hindu Law is not applicable to them. Therefore, it is clear that the aforesaid Sy.No. 47/2 absolutely belongs to Chowrappa and the only mode in which he could have conveyed title to his sons in the said property was by way of registered sale deed or gift deed. However, the recital Ex.P-1 shows that they treated themselves as undivided joint family and then 35 guntas in the aforesaid survey number was given to the share of these plaintiffs by their father under the aforesaid partition deed. Even under Hindu Law, if the sons have no pre-existing light, in a partition deed they cannot get right in the property for the first, time.
15. The law on the point is well settled. The Privy Council in the case of Mt. Girija Bai v. Sadashiv Dhundiraj and Ors. reported in AIR 1916 PRIVY COUNCIL has held that Partition does not give title or create a title. It only enables the sharer to obtain what is his own in a definite and specific Form for purposes of disposition independent of the wishes of his former co-sharers. Where a division of right had already taken place as evidenced by a deed of partition, the right which each individual member has in the joint property did not spring from the deed or the agreement of parties to which it gave expression. The agreement only recognised existing rights in each individual member which he was entitled to assert at any time he liked.
16. The Supreme Court in the case of The Commissioner of Income Tax, Gujarat, v. Keshavlal Lallubhai Patel dealing with the question whether the partition is a transfer, has held that, "it is not".
17. The Supreme Court in the case of V.N. Sarin v. Ajit Kumar Poplai and Anr. , has held that having regard to the basis character of joint Hindu family property, each coparcener has an antecedent title to the said property, though its extent is not determined until partition takes place. That being so, partition really means that whereas initially all the coparceners had subsisting title to the totality of the property of the family jointly, that joint title is transformed by partition into separate titles of the individual coparceners in respect of several items of properties allotted to them respectively.
18. Again the Supreme Court in the case of Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate after reviewing the entire case law on the point has held that Section 5 contemplates transfer of property by a person who has a title in the said property to another person who has no title. A family arrangement, on the contrary, is a transaction between members of the same family for the benefit of the family so as to preserve the family property, the peace and security of the family, avoidance of family dispute and litigation and also for saving the honour of the family. Such an arrangement is based on the assumption that there was an antecedent title in the parties and the agreement acknowledges and defines what that title is. It is for this reason that a family arrangement by which each party takes a share in the property has been held as not amounting to a "conveyance of property" from a person who has title to it to a person who has no title. However, if a partition of the joint family property takes place by act of parties, it would not be treated as 'transfer' within the meaning of Section 5 of the Act.
19. The learned Counsel for the appellants relied on the judgment of the Madras High Court in the case of Venkatappa Naidu v. Musal Naidu and Ors. reported in AIR 1934 MADRAS 204, wherein it was held that for the purpose of construing the nature of the document in question, it is not necessary to consider the contentions raised by the parries, as regards their right to the properties. Even if they are not really co-owners in the eye of the law, still if they purport to he co-owners and if a document is executed in that capacity, it would come within the definition of an instrument of partition.
20. Therefore, contending that even if the plaintiffs had no subsisting right in the property on the date of partition, when they, along with their father effect partition of the joint family properties purport to be the co-owners, then the said document would come within the definition of an instrument, of partition and the plaintiffs have a right to the property that has fallen to their share.
21. The word "Vibhaga" in Sanskrit, "Bhaga" in Kannada is usually rendered into English by the words "Partition". It denotes adjustment of diverse rights regarding the whole by distributing them in particular portions of the aggregate. It is a process by which the joint enjoyment of a property is transformed into an enjoyment in severalty. It may be by the agreement between the parties or by a decree of the court. However, in either of the cases, the parties to the partition possess an antecedent title in the property and through the process of partition, the antecedent title is specifically defined. Before partition, the property was enjoyed jointly and after partition, they would enjoy the property in severalty. Therefore, in the partition no party gets the title for the first time. In other words, partition does not give title or create title. If the party to the partition has an antecedent title to the property, it only enables him to obtain what is his own in a definite and specific form, Section 5 of the Transfer of Property Act contemplates transfer of property by a person whose title in the said property, to another person who has no title. In a partition, no one transfers title which he possesses in favour of a person who does not possess a title. Every one has an antecedent title. Therefore, no conveyance is involved, in the process as conferment of a new title is not necessary. It does not amount to transfer. Therefore, partition is not a transfer and by partition no body acquires title to any property for the first time. Consequently the partition deed only recognises an existing right, which each party to the deed has in the joint property and no right spring from the deed of partition.
22. In the light of the admitted facts in this case that the plaintiffs did not have any antecedent title in the suit schedule property, they did not acquire any title under the partition deed for the first time. Their suit, is based on the partition deed. They are seeking declaration that they have become owners of the suit schedule property by virtue of this partition deed. If partition is not a transfer, if partition conveys nothing, the plaintiffs get nothing for the first time under this deed of partition. Therefore, they are not entitled to the relief of declaration sought for.
23. Though the trial Court has declined to grant the relief of declaration on the ground that partition deed is not proved by examining the executant or attesting witness and the partition deed is not acted upon, as no revenue entries are made acting on this partition deed, ultimately the trial Court was justified in declining to grant the relief of declaration of title. The said finding is valid and proper though not for the reasons assigned by the learned trial Judge but for the reasons assigned supra. In that view of the matter the said finding do not require any interference, accordingly the point No. 1 is held in the negative.
POINT NO. 224. The material on record discloses that, after obtaining a decree off 10.01.1980, the defendant who had filed Execution No. 137/80 took the delivery of possession. When the warrant was taken to the suit, schedule property there was obstruction and therefore warrant, could not be executed. The Bailiff promptly reported the matter to the Court and thereafter an application was filed by the decree holder, the respondent herein for police protection. Police protection was granted. It is thereafter with the police protection the Bailiff went to the spot, dispossessed the plaintiffs and their father and delivered possession to the defendant/decree holder. Thus delivery warrant was duly executed and Mahazar was drawn. The Bailiff who executed the decree and put the decree holder in possession has been examined as D.W-2. D.W-3 is the person who has attested the Mahazar also is examined. They have been cross examined. But nothing is elicited in the said cross examination. In the light of this unimpeachable documentary evidence which are in the nature of Court proceedings, absolutely no material is produced by the plaintiff to demonstrate that all these Court proceedings are fraudulent. It is after appreciating the oral evidence of three witnesses and these documents the trial Court recorded a finding that plaintiffs were dispossessed in accordance with law and the defendant was put in possession and on the date of the suit the defendant was in possession and plaintiffs were not in possession. The said finding of fact is based on legal evidence and no perversity is pointed out.
Therefore, there is no reason for this Court, to interfere with the said finding of fact.
25. It is contended that when once it is demonstrated that plaintiffs were not in possession of the suit schedule property as on the date of the suit, when they did not seek for possession of the suit schedule property, in view of the second proviso to Section 34 of the Specific Relief Act, plaintiffs are not entitled to any relief of declaration. In support of this contention the defendant relied on the judgment of the Supreme Court in the case of Ram Saran and Ors. v. Smt. Ganga Devi wherein it has been held that where the defendant is in possession of some of the suit properties and the plaintiff in his suit does not seek possession of those properties but merely claims a declaration that he is the owner of the suit properties, the suit is not maintainable.
26. A Division Bench of this Court in the case of Poojair Puttaiah and Ors. v. Kempaiah reported in ILR 1980 KAR 103 has held that in a suit for declaration of owner-ship find permanent injunction, not only the plaintiff must prove his title, but also his possession over the property, on the date of the suit. When the plaintiff is not in possession of the property on the date of the suit, the relief of permanent injunction is not an appropriate consequential relief. The appropriate relief consequential to declaration of ownership, is relief of possession of the property. The proviso to Section 34 of the Specific Relief Act, 1963, also affirms the said view. Where the plaintiff is out of possession of the land and does not seek relief for possession, a mere suit for declaration is not maintainable.
27. The Supreme Court in the case of Vinay Krishna v. Keshav Chandra and Anr. held that the plaintiff is not in exclusive possession of the property and defendants and other tenants were in occupation of the property, the relief of possession ought to have been asked for as a consequential relief to the relief of declaration. The failure to do so undoubtedly bars the discretion of the Court in granting the decree of declaration. Merely because, the plaint says in the prayer column such other relief may he granted to the plaintiff, it does not mean that without a specific plea for possession and disregarding the bar under Section 42 (proviso) of the Specific Relief Act, the suit could be decreed even with reference to the portions of which the plaintiff has been in possession.
28. 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, as 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.
29. In the light of the aforesaid judgment and the statutory provisions referred supra, it is clear that, the object of the section is to perpetuate and strengthen testimony regarding title and protect it from adverse attacks and to prevent future litigation by removing existing cause of controversy. The policy of the legislature is not only to secure to a wronged party possession of the property taken away from him but also to see that he is allowed to enjoy that property peacefully. The proviso to the said Section shows the care that has been taken by the legislature to avoid multiplicity of suits and to prevent a person getting the declaration of right in one suit and immediately after the remedy already available in the other. This is clear from the proviso of the Section. The proviso lays down that no Court shall make such declaration where the plaintiff being able to seek further relief than mere declaration of title omits to do so. The object of this proviso is to avoid multiplicity of the suits. Where the plaintiff is entitled to some consequential relief, directly flowing from the right or title of which lie seeks declaration in the suit, he must seek declaration in the first, instance and a consequential relief in the same suit and not by two separate suits. This provision is mandatory and enjoins the Court not to pass a declaratory decree where the plaintiff omits to seek further relief to which he is entitled to, as a natural consequence of the declaration. That is where the judicial discretion counts. It would he a case of proper exercise of judicial discretion, to refuse to grant a declaration sought for, even if the plaintiff establishes his title but he is not in possession, on the date of the suit and do not seek the relief of possession.
30. In a suit, for declaration of ownership and permanent injunction, not only the plaintiff has to prove his title to the property, but also his possession over the property on the date of the suit. When the plaintiff is not in possession of the property on the date of the suit, relief of permanent injunction is not on appropriate consequential relief. The appropriate relief consequential to declaration of ownership would be recovery of possession of the property. When the plaintiff is out of possession of the property and does not seek relief for possession, a mere suit for declaration is not maintainable. The reason is not far to seek. It is well settled that no Court would grant any relief which is not useful, or futile and not effective. If title of the plaintiff is to be declared and he is not in possession and possession is with the defendant or some other person, the plaintiff would be having title of the property and the person in possession would be having possessory title to the property. It would lead to anomalous situation and create confusion in the public, which is to be avoided.
31. Even if the plaintiff comes to Court asserting that he is in possession and that if it is found after trial that he was not in possession on the date of the suit, even then, the suit for declaration and permanent injunction is liable to he dismissed as not maintainable, as no decree for permanent injunction can he granted if the plaintiff is not in possession on the date of the suit. In such circumstances, it is necessary for the plaintiff to amend the plaint before the judgment and seek relief of possession. Therefore, a suit for declaration of title and permanent injunction, by the plaintiff who is not in possession on the date of the suit, when he is able to seek further relief of recovery of possession also, omits to do so the Court shall not make any such declaration and the suit is liable to be dismissed as not maintainable.
32. In the instant case, it is established that the defendant took possession of the suit schedule property from the plaintiff and their father in execution of a decree passed. Therefore, on the date, the suit was filed for declaration and permanent injunction, the plaintiff was not in possession of the suit schedule property. No doubt, in the plaint he asserts that he is in possession of the suit schedule property. When the defendant in the written statement set out particular of the previous proceedings and also the fact that they took possession of the suit schedule property from the plaintiffs and their father through the Court, the plaintiff did amend the plaint seeking a declaration that the decree obtained by the defendants against their father is not binding on him. But the defendants did not choose to seek the relief of possession. The plaintiff in spite of the fact that the earlier Court proceedings showed that the defendant was in possession and the plaintiff was not in possession, omitted to seek the relief of possession. The suit of the plaintiff for declaration and permanent injunction without seeking the relief of possession was not maintainable. Therefore, the Court below was justified in declining to grant the declaration sought for on the ground that the suit was not maintainable.
POINT NO. 3:
33. In so far as the decree passed in O.S.No. 224/78 is concerned, the plaintiffs' father Chowrappa was a parry to the said suit. He is the person who had purchased the suit schedule property. He was duly served with the suit summons. He remained exparte. It is thereafter the Court proceeded to pass exparte decree. Chowrappa after loosing possession of the property, filed Misc. application for setting aside the said exparte decree. After contest, the said Miscellaneous application was dismissed on merits. He challenged the said order by preferring Miscellaneous First Appeal before this Court, After contest, the said MFA is also dismissed. Thus, the decree passed in O.S. 234/78 has become Final. In the said suit the Court had declared that the sale deed executed in his favour is annulled and plaintiff in the said suit is the owner of the property and it also further directed that he is entitled to possession and a decree of possession was passed. It is that decree which has been duly executed and possession has been taken. Merely because that exparte decree was not in accordance with law, it in no way helps the plaintiffs, as they have not challenged the said exparte decree on that ground. However, their father challenged the said decree and the challenge was negatived. Under the partition deed the plaintiffs did not acquire any right over the suit property and the ownership continued with Chowrappa and that ownership is annulled by the aforesaid decree passed by the competent Civil Court. As the plaintiffs are claiming title to the property from Chowrappa they are also bound by the said decree.
34. The learned trial Judge has appreciated the entire oral and documentary evidence on record and has given cogent reasons for arriving at the conclusions and negatived the claim of the plaintiffs. He had the benefit of observing the demeanor of the witness and as his finding is based on documents which are not in dispute, the said finding is valid and legal and do not suffer from any infirmity. For the aforesaid reasons, I do not find any merit in these appeals. Accordingly, both the appeals are dismissed. No cost.