Karnataka High Court
Balu Jyoti Chambar @ Mane vs Lagamanna Birasidda Pujari on 4 June, 2018
Author: P.S.Dinesh Kumar
Bench: P.S.Dinesh Kumar
I N T HE HI G H C OU R T O F K AR N A T A K A
D H AR W A D BE N C H
D A TE D T HI S T H E 4 T H D AY O F J U NE 2 0 1 8
BE F OR E
T HE H O N ' BL E MR . J U S TI C E P. S . DI NE S H K U M AR
R . S . A. N O. 1 0 0 7 0 7/ 2 0 1 5 ( D E C, I N J/ P OS S N)
BETWEEN:
1. BALU JYOTI CHAMBAR @ MANE
AGE:41 YEARS, OCC : AGRICULTURE,
R/O: MEKHALI-591 317,TQ: RAIBAG,
DIST : BELAGAVI.
2. RAJU JYOTI CHAMBAR @ MANE
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O: MEKHALI-591 317, TQ: RAIBAG,
DIST : BELAGAVI. ... APPELLANTS
(BY SRI. M G NAGANURI, ADVOCATE)
AND
LAGAMANNA BIRASIDDA PUJARI,
AGE: 65 YEARS, OCC:AGRICULTURE,
R/O : MEKHALI-591 317,
TQ : RAIBAG, DIST : BELAGAVI. ... RESPONDENT
(RESPONDENT IS SERVED)
THIS RSA IS FILED U/S.100 R/W ORDER 41 RULE 1 OF CPC
1908, AGAINST THE JUDGEMENT & DECREE DTD:04.08.2015 PASSED
IN R.A.NO.24/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, AND
JUDICIAL MAGISTRATE FIRST CLASS, RAIBAG, DISMISSING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DTD:10.08.2012 AND THE DECREE PASSED IN O.S.NO.362/2006 ON
THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JUDICIAL
MAGISTRATE FIRST CLASS RAIBAG, DECREEING THE SUIT FILED
FOR DECLARATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This second appeal by defendant No.1 before the Trial Court is directed against the Judgment and Decree dated 04.08.2015 in RA.No.24/2012 on the file of the Senior Civil Judge and Judicial Magistrate First Class, Raibag, dismissing the appeal and thereby confirming the judgment and decree dated 10.08.2012 in O.S.No.362/2006 on the file of Additional Civil Judge and Judicial Magistrate First Class, Raibag.
2. For the sake of convenience parties shall be referred to as per their status before the Trial Court.
3. Heard Sri M.G.Naganuri, learned counsel for the appellants. Though served respondent has remained absent. Since, the appeal involves pure question of law and falls within a narrow compass, the same is taken up for final disposal. 3
4. Briefly stated the facts of the case are, plaintiff brought the instant suit initially for bare injunction. Subsequently prayer in the plaint was amended and the same reads as follows:
(a) A decree f or declar ation that as per regis tered, s ale deed, dated 10.01.1997, Declar ation that as per regis tered, the plain tif f is absolu te o wner in possess ion of suit land, R.S.No.103/6B, me asur ing AC.00=24 Guntas assessed to Rs.04=00 ps of Mekhali v illage, in Raibag T aluka and ordered to be reentered his name in the R of R ex tr act of suit land as bef ore, be ordered to be declared with consequential re lief of injunction ag ains t def endants be issued, in the in teres t of Jus tice.
(b) Cos ts of this suit be awarded to this plain tiff f rom these def endants.
5. The Trial Court framed following 5 issues and 2 additional issues:
1) Whe ther the plaintif f proves that, he is in ac tual and lawf ul possess ion of suit land as on the d ate of suit?
2) Whe ther the plain tif f f urther proves that the def endants are caus ing interf erence as averred in the plaint?
3) Whe ther the Judg ment and Decr ee passed in O.S.No.11/2005 o n the f ile of this cour t will operates as res jud icata?
4) Whe ther the plain tif f is entitl ing f or the re lief sought f or?4
5) What Decree or Order?
Addl.Issues
1) Whether the plain tif f proves th at he is the absolute o wner in possession of suit land by virtue of registered Sale deed d ated 10.1.1997?
2) Whether the def endants proves that suit is barred by limitation?
3) Is the plain tif f entitled f or the al ternative relief of possession of suit land as sought f or?
6. Issues No.1 and 2 are relevant. Answering issues No. 1 to 3 and additional issue No.2 in the negative and issues No.4 and additional issues No.1 and 3 in the affirmative, the Trial Court decreed plaintiff's suit for declaration as owner in possession of suit property with costs.
7. In appeal, the Lower Appellate Court framed following points for consideration.
1. Whe ther the Trial Cour t has no t proper ly appreciate d the or al and documen tar y ev idence produced by the par ties?
2. Whe ther the judg men t and decree of Trial Cour t is perverse and illeg al?
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3. What order or decree?
8. Holding points No. 1 and 2 in the Negative, the Lower Appellate Court dismissed the appeal and thereby confirmed the judgment and decree passed by the Trial Court.
9. Feeling aggrieved by the concurrent findings, the defendants are before this Court. Though served, plaintiff has remained absent.
10. The following substantial questions of law have been framed in this appeal.
a) Whe ther the Cour ts belo w were jus tif ied in decree ing the s uit of respondent f or declar ation & injunc tion despite re turning the f ind ing that he was no t in possession of the suit pro per ty and d id no t prove in terf erence?
b) Whe ther the Tr ial Cour t was jus tif ied in d irec ting the appe llan ts to handover possession of suit proper ty to the respondent tho ugh he d id no t seek the re lief of possession f rom the m and on the contr ary he ad mitted that he is in possession of land RS No.103/2015 s ince the d ate of purchase and d id no t co mplain of dispossess io n of the same by the appe llants?
c) Whe ther the Cour ts belo w were jus tif ied in de cree ing the suit ig nor ing the f act that the respondent who was entitled to claim the re lief of 6 declar ation and possession f iled only suit f or injunction in OS. No.11/2005 and ther ef ore, the sui t is hit by Order II Rule 2(3) CPC & cons tr uctive res-jud icata?
11. Sri. M.G.Naganuri arguing in support of the appeal urged following grounds;
• that the plaintiff did not seek for possession of the suit schedule property; • that prior to filing the instant suit, plaintiff had filed O.S.No.11/2005 on the file of Additional Civil Judge(Jr.Dn), Raibag for injunction. In the said suit, an issue, as to whether plaintiff was in possession of the suit scheduled property was framed and answered in the negative.
12. In view of the above, Sri.M.G.Naganuri submitted that the instant suit is not maintainable at all view of proviso to Section 34 of the Specific Relief Act and Order II Rule 2(3) of the code of civil procedure.
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13. In Controvertible facts of this case are, the plaintiff had filed O.S.No.11/2005. Wherein Trial Court has returned a finding that plaintiff was not in possession of suit scheduled property. Subsequently, the instant suit has been filed.
14. In support of his contentions Shri.M.G.Naganuri relied upon following authorities:
i) Ram S ar an and ano ther V/s. S mt.G anga dev i repor ted in (1973) 2 SCC 60.
ii) Unio n of Ind ia V /s. Ibr ahim Ud d in and ano ther repor ted in (2012) 8 SCC 148.
iii) Sr i.Ar alappa V/s. Sr i.J ag annath and o thers repor ted in ILR 2007 KAR 339.
15. The Trial Court has framed issues with regard to possession and held that plaintiff was not in possession of the suit schedule property and the Lower Appellate Court has confirmed the 8 judgment of the Trial Court. Therefore, the question that falls for consideration is:
"Whether the suit is maintainable at all in view of proviso to Section 34 of the Specific Relief Act"?
Proviso to Section 34 of the Specific Relief Act reads as under:
34. D isc re ti o n of cou r t as to de cl ar a ti o n o f sta tu s or r i g h t.-- A ny pe rs o n e n ti tl ed to an y l e g al c h ar ac te r, o r to an y ri g h t as to an y pr o pe r ty, m ay i ns ti tu te a s u i t ag ai n s t an y pe rso n de ny i n g, o r i n te re s te d to de ny , h is ti tl e to s uc h c h ar ac te r o r r i g h t, an d th e c o u r t m ay i n i ts di sc re ti o n m ak e the re i n a decl ar ati o n th at he is s o en ti tl e d, an d th e pl a i n tif f need no t i n s u ch s ui t as k f or an y f ur the r rel i ef : Prov i de d th at n o co u r t s h al l m ak e an y s uc h de cl ar a ti o n wh e re th e pl ai n tif f , be i n g abl e to seek f ur the r r el ief th an a me re de cl ar a ti o n of ti tl e, om i ts to d o so. Ex pl an a ti o n. --A tr u s tee o f pro per ty is a " per so n i n ter es te d to de ny" a ti tl e ad ve rs e to th e ti tl e of som e o n e wh o is n o t i n e xi s te nce , an d wh o m, if in exi s te nce , he wo ul d be a tr u s tee .
A plain reading of above shows that proviso to the Section bars the Court from making in declaration when plaintiff omits to seek further relief than a mere declaration. Thus proviso to Section 34 disentitles the plaintiff to any relief.
16. Admittedly, the plaintiff has not sought for relief of possession though he has 9 suffered a decree in O.S.No.11/2005 to the effect that he was not in possession of the suit schedule property.
17. Similarly Order I I Rule 2(3) of CPC prohibits plaintiff from seeking any relief on the same cause of action.
18. The Hon'ble Supreme Court in the case of R am S aran and another Supr a has held as follows:-
4. xxx....xxx...The plain tif f have no t sought possession of tho se proper ties. They mere ly claimed a declar ation that they are the o wners of the suit pro perties. Hence the suit is no t main tainable. In these cir cums tances, it is no t necessary to go into the o ther contentio n that the suit is barred by limitation.
19. The Hon'ble Supreme Court in the case of Un ion of India V/s. Ibrahim Uddin and another Supra is held as follows:- 10
"55. The section prov ides that co ur ts have d iscre tio n as to d eclar ation of status or r igh t, ho wever, it carves out an excep tio n that a cour t shall no t make any such declar ation of s tatus or r ight where the co mplainant, be ing able to seek f urther re lief than a mere declar ation of title, o mits to do so."
56. In Ram S ar an V.Gang a Dev i this cour t had categor ically held that the suit s eeking f or declar ation of titl e of o wnership but where possession is no t sought, is hit by the prov iso of section 34 of the Specif ic Re lief Act, 1963 (here inaf ter called " the Spe cif ic Re lief Act") and, thus, no t maintainable. In V inay Kr ishan v. Keshav Chandr a this cour t de alt with a s imilar issue wher e the pl was no t in exclus ive possession of proper ty and had f iled a suit seeking declar ation of title of o wnership. S imilar v ie w has been re iter ated obse rv ing that the suit was no t main tainable, if barred by the prov iso to Section 34 of the Specif ic Relief Act. (see also G ian Kaur V.Raghubir S ingh)
57. In v ie w of the above, the law beco mes crys tal cle ar that it is no t per miss ible to claim the relief of declar ation without seeking consequential re lief .
In conclusion, the Apex Court has recorded thus:
85.12. T he suit was barred by the prov iso to Sectio n 34 of the Specif ic Rel ief Act, f or the reason that responden t 1-
plain tif f , ad mittedly, had not been in possess ion and he did not ask f or restoration of possession or any other consequential relief .
20. Thus this appeal must succeed on both counts namely, the bar contended under 11 Section 34 of the Specific Relief Act and the bar contended under Order II Rule 2(3) CPC.
21. In view of the aforesaid finding, the judgment and decree passed by lower appellate Court confirming the judgment and decree of the trial Court are unsustainable in law. Hence this appeal merits consideration. Resultantly, the following:
ORDER
i) Appe al allowe d.
ii) Judgme nt and de cree date d 04.08.2015 passe d by the Senior Civil Judge & JMFC, Raibag in R.A.No.24/2012 is s e t aside and O.S.No.362/2006 on the file of Se nior Civil Judge and Judicial Magistrate Fist class, Raibag is dismisse d.
iii) No Costs.
Sd/-
JUDGE
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