Gujarat High Court
Sumitra Ashokbhai Patel -Decd vs Rameshbhai Fakirbhai Patel on 16 November, 2022
C/SA/236/2015 CAV JUDGMENT DATED: 16/11/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 236 of 2015
FOR APPROVAL AND SIGNATURE: Sd/-
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be Yes
allowed to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair No
copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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SUMITRA ASHOKBHAI PATEL -DECD.
Versus
RAMESHBHAI FAKIRBHAI PATEL & 3 other(s)
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Appearance:
MR SP MAJMUDAR(3456) for the Appellant(s) No. 1,1.1,1.2
SHASHVATA U SHUKLA(8069) for the Appellant(s) No. 1,1.1,1.2
MR KASHYAP R JOSHI(2133) for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 16/11/2022
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C/SA/236/2015 CAV JUDGMENT DATED: 16/11/2022
CAV JUDGMENT
1. The present second appeal is preferred by the appellants herein challenging the judgment and order dated 07.10.2015 passed by the learned 8th Additional District Judge, Vadodara in Regular Civil Appeal No. 25 of 2012 as well as the judgment and decree dated 07.12.2011 passed by the learned 3 rd Additional Senior Civil Judge, Vadodara in Regular Civil Suit No.373 of 2005. The appellants herein are the legal heirs of appellant no.1 - Sumitra Ashokbhai Patel.
2. Brief facts of the present case are that the original plaintiff
- Sumitraben was the daughter of deceased Fakirbhai Somabhai Patel and respondent no.1 is the son of the deceased Fakirbhai Patel and respondents no.2, 3 and 4 are the heirs of Fakirbhai's son deceased Ravjibhai Fakirbhai Patel. The agriculture lands (suit properties) bearing block no.206 and block no.1065 are the joint properties of deceased Sumitraben and the respondents. The deceased Sumitraben has 1/3rd share in the suit lands and on the basis of the cause of action, the original plaintiff filed the abovementioned suit for declaration and permanent injunction Page 2 of 23 Downloaded on : Wed Nov 23 20:31:41 IST 2022 C/SA/236/2015 CAV JUDGMENT DATED: 16/11/2022 restraining the respondents from transferring the suit properties, which came to be allowed by the Trial Court. The Trial Court observed that the original plaintiff has 1/7 th share in the suit properties.
2.1 Being aggrieved by the impugned judgment and decree passed by the Trial Court, the appellants have preferred the regular civil appeal before the First Appellate Court, which came to be dismissed and allowed the cross-objection filed by the respondents.
3. Feeling aggrieved and dissatisfied with the impugned aforesaid judgment and order, the appellants have preferred the present appeal.
4. Heard Mr.S. P. Majmudar, learned counsel appearing for the appellants and Mr.Kashyap Joshi, learned counsel appearing for the respondents.
5. Mr.Majmudar, learned counsel appearing for the appellants has submitted that the appellants herein are the legal heirs of Page 3 of 23 Downloaded on : Wed Nov 23 20:31:41 IST 2022 C/SA/236/2015 CAV JUDGMENT DATED: 16/11/2022 original plaintiff - Sumitraben (deceased). He has submitted that the suit is filed seeking permanent injunction and declaration that the deceased Sumitraben has 1/3 rd share in the suit properties after the death of Fakirbhai Nathabhai Patel who survived by seven heirs i.e. his widow Maniben, four daughters and two sons, the pedigree of which is produced on record at page no.10 of the paper-book. He has submitted that after the death of Maniben, other sisters namely Urmilaben, Savitaben and Dakshaben have executed a release deed (Fargati Lekh) at Exhibit 68 whereby they relinquished their rights in the suit properties in favour of two brothers - respondent no.1 and respondents no.2 to 4 (legal heirs of another brother Ravjibhai Patel). According to Mr.Majmudar, learned counsel, from bare perusal of the release deed and as per the concurrent findings arrived at by both the Courts below, the original plaintiff has not signed the said release deed. He has submitted that the affidavit of Dakshaben at Exhibit 71 supports the case of the appellants as far as the relinquishment of the share of three other sisters are concerned. He has submitted that consequently, only three heirs of deceased Fakirbhai are entitled to get share in the suit Page 4 of 23 Downloaded on : Wed Nov 23 20:31:41 IST 2022 C/SA/236/2015 CAV JUDGMENT DATED: 16/11/2022 properties namely original plaintiff and defendant no.1 and defendants no.2 to 4. He has submitted that both the Courts below have held and observed that except other three sisters, the deceased - Sumitraben has not relinquished her share in the suit properties and resultantly, the Courts below have recognized the share of the plaintiff, as a matter of principle, but have failed to take into consideration the effect of the relinquishment by other three sisters, which fact is supported by the evidence of Dakshaben. It is submitted by Mr.Majmudar, learned counsel that neither other three sisters have denied having relinquished their shares nor filed any suit challenging the release deed and they have also not disputed the claim of the original plaintiff having 1/3rd share in the property. According to Mr.Majmudar, learned counsel, the appellants - legal heirs of deceased Sumitraben are entitled to 1/3rd share in the suit properties and the Courts below have committed an error of law and fact in appreciating the fact of release deed executed by three sisters i.e. Urmilaben, Savitaben and Dakshaben and consequent enlargement of plaintiff's share would not be 1/3 rd share along with her two brothers. He has submitted that on the concurrent findings of the Page 5 of 23 Downloaded on : Wed Nov 23 20:31:41 IST 2022 C/SA/236/2015 CAV JUDGMENT DATED: 16/11/2022 Courts below in respect of relinquishment of three sisters and the admitted position that Maniben has died, the plaintiff has 1/3 rd share in the suit properties and is entitled to declaration to that effect. He has submitted that the First Appellate Court has committed an error in holding that the suit filed by deceased Sumitraben was not maintainable without praying for partition and the same was hit by Section 34 of the Specific Relief Act, 1963. While relying upon the decision of the Bombay High Court in the case of Kunj Bihari Prasadji Purshottam Prasadji Vs. Keshavlal Hiralal reported in ILR 1904 28 Bom. 567, Mr.Majmudar, learned counsel has submitted that Section 34 of the Specific Relief Act does not affect the maintainability of the suit. He has submitted that from bare perusal of the prayers sought in the plaint, it is apparent that the original plaintiff sought relief for declaration and permanent injunction which is consequential relief and, therefore, the same is not hit by Section 34 of the Specific Relief Act. He has also submitted that the suit filed by the original plaintiff is otherwise maintainable as the prayer for injunction is consequential and partition is not necessary while suing for declaration and permanent injunction. Page 6 of 23 Downloaded on : Wed Nov 23 20:31:41 IST 2022 C/SA/236/2015 CAV JUDGMENT DATED: 16/11/2022 While relying upon the decision of this Court in the case of Vanubhai Mangalbhai Patel Vs. Khalpabhai Mangalbhai Patel reported in 2000 (2) GLR 347, Mr.Majumdar, learned counsel has submitted that the issue involved in the present case is squarely covered by this decision. He has further submitted that a plea under Order II Rule 2 of the Civil Procedure Code, 1908 bares the subsequent suit preferred by a party arising out of the same cause of action and the said principle has not applicable to the facts of the present case. He has submitted that it is well settled that the cause of action of the suit for declaration and a suit for partition is different and, therefore, Order II Rule 2 of the Civil Procedure Code, 1908 is not attracted to the facts of the present case. He has further submitted that the original plaintiff has not omitted and/or relinquished any portion of the suit properties. He has submitted that in view of the aforesaid decisions, the original plaintiff is not obliged to sue for partition in order to obtain a declaration qua her share in the suit properties and, therefore, the suit filed by the original plaintiff is maintainable and not barred by the provision of Order II Rule 2 of the Civil Procedure Code.
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C/SA/236/2015 CAV JUDGMENT DATED: 16/11/2022 5.1 Mr.Majmudar, learned counsel has also relied upon the following decisions.
1. C. Mohammad Yunus Vs. Syed Unnissa reported in AIR 1961 SC 808;
2. Ram Charan and Another Vs. Tulshi Ram and Another reported in AIR 1929 Allahabad 306;
3. Ram Sadan Biswas Vs. Mathura Mohan Hazra and others reported in AIR 1924 Cal 233;
4. Shakuntala Devi Vs Kamla reported in (2005) 5 SCC 390; 5.2 Mr.Majmudar, learned counsel has submitted that in view of the aforesaid facts and legal position, the appeal deserves to be allowed and the impugned judgment and order of both the Courts below deserve to be quashed and set aside.
6. Per contra, Mr.Joshi, learned counsel appearing for the respondents has submitted that the suit is barred by proviso to Section 34 of the Specific Relief Act, which provides that declaration as to any legal character or any right as to any property shall not be granted by the Court if the plaintiff; being Page 8 of 23 Downloaded on : Wed Nov 23 20:31:41 IST 2022 C/SA/236/2015 CAV JUDGMENT DATED: 16/11/2022 able to seek further relief than mere declaration of title, omits to do so. He has submitted that in the present case, the original plaintiff has sought further relief seeking possession and partition by metes and bounds. He has submitted that the object behind the proviso to Section 34 has been discussed by the Hon'ble Supreme Court in the case of Venkataraja and others Vs. Vidyane Doureradjaperumal (D) Thr. Lrs and others reported in (2014) SCC 502. He has submitted that assuming that the plaintiff gets 1/3 rd share in the suit properties than also the plaintiff or any person claiming through the plaintiff will not be able to enjoy the fruits of such decree, unless a suit for possession and partition by metes and bounds is filed by the plaintiff or the persons claiming through the plaintiff, since the plaintiff has admittedly not been in possession of the suit properties and such a suit would be barred by Order II Rule 2 of the Civil Procedure Code. While relying upon the decision of the Hon'ble Supreme Court in the case of Executive Officers, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar Vs. Chandran and others reported in (2017) 3 SCC 702, Mr.Joshi, learned counsel has submitted that the suit filed by the Page 9 of 23 Downloaded on : Wed Nov 23 20:31:41 IST 2022 C/SA/236/2015 CAV JUDGMENT DATED: 16/11/2022 plaintiff deserves to be dismissed as no any further reliefs as sought by the plaintiff. He has submitted that the plaintiff has made an assertion that she has 1/3 rd share in the suit properties and, therefore, the plaintiff has to prove the burden of proof. He has submitted that there are seven legal heirs of deceased Fakirbhai Somabhai Patel and the plaintiff being one of the legal heirs. He has submitted that the plaintiff has not produced any document on record to show that deceased Fakirbhai has specifically transferred 1/3rd share of the suit properties in her favour or transferred the share by any other heirs in favour of the plaintiff by virtue of relinquishment or otherwise. While relying upon the decision of the Hon'ble Supreme Court in the case of Shyam Narayan Prasad Vs. Krishna Prasad reported in (2018) 7 SCC 646, Mr.Joshi, learned counsel has submitted that the plaintiff has failed to prove that she is entitled to 1/3 rd share of the suit properties. He has submitted that the decisions relied upon by the learned counsel appearing on behalf of the appellants are not applicable to the facts of the present case. He has submitted that in view of the aforesaid facts and circumstances of the case and law applicable on the same Page 10 of 23 Downloaded on : Wed Nov 23 20:31:41 IST 2022 C/SA/236/2015 CAV JUDGMENT DATED: 16/11/2022 including the precedents, the suit filed by the plaintiff has rightly been dismissed by the Trial Court. He has submitted that the appeal being meritless deserves to be dismissed.
7. I have considered the submissions canvassed by learned counsel appearing on behalf of both the sides and considered the evidence produced on record. I have also perused the decisions cited at the bar and facts of the present case.
8. The pedigree of deceased Fakirbhai Nathabhai Patel is as under:
Fakirbhai Nathabhai Patel | | | | | | | | Maniben Urmilaben Ravjibhai Savitaben Rameshbhai Sumitraben Dakshaben wife daughter son daughter son daughter daughter (died) (died) |
---------------------------------------------
| | |
Kalavatiben Prakashbhai Gautambhai
wife son son
9. In the case of Vanubhai Mangalbhai Patel (supra), relied upon by learned counsel appearing for the appellant, this Court has held and observed in paragraph no.13 as under:
"13. Whereas it is settled that a suit with regard to Page 11 of 23 Downloaded on : Wed Nov 23 20:31:41 IST 2022 C/SA/236/2015 CAV JUDGMENT DATED: 16/11/2022 declaration claiming joint ownership, possession and joint user may be maintainable, even if it is not coupled with the prayer for partition, the ground raised on behalf of the appellants against the maintainability of hte suit also fails. As a matter of fact, it appears that the plaintiff - respondent was not properly advised at the time when the suit was filed and the prayer in the suit was kept confined to the declaration as above and the prayer with regard to partition was not made. However, that does not mean that the suit for declaration does not remain maintainable. It is unfortunate that having kept the prayer of the present suit confined to the declaration as above, the respondent - plaintiff may have to undergo another litigation for actual partition for his actual defined share in the joint Hindu family property and the partition thereof by meets and bounts."
10. In the case of Venkataraja (supra), relied upon by learned counsel appearing for the respondents, the Hon'ble Supreme Court has held and observed in paragraph no.23 as under:-
"23. The very purpose of the proviso to Section 34 of the 1963 Act, is to avoid the multiplicity of the proceedings and also the loss of revenue of court fees. When the Specific Relief Act, 1877 was in force, the 9 th Report of the Law Commission of India, 1958, had suggested certain amendments in the proviso, according to which the plaintiff could seek declaratory relief without seeking any consequential relief, if the sought permission of the court to make his subsequent claim in another suit / proceedings. However, such an amendment was not accepted. There is no provision analogous to such suggestion in the 1962 Act."
11. In the case of Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar (supra), relied upon by the learned counsel appearing for the respondents, the Hon'ble Supreme Court has held and observed Page 12 of 23 Downloaded on : Wed Nov 23 20:31:41 IST 2022 C/SA/236/2015 CAV JUDGMENT DATED: 16/11/2022 in paragraph no.35 as under:-
"35. The plaintiff, who was not in possession, had in the suit claimed only declaratory relief along with mandatory injunction. The plaintiff being out of possession, the relief of recovery of possession was a further relief which ought to have been claimed by the plaintiff. The suit filed by the plaintiff for a mere declaration without relief of recovery of possession was clearly not maintainable and the trial court has rightly dismissed the suit. The High Court neither adverted to the above finding of the trial court nor has set aside the above reasoning given by the trial court for holding the suit as not maintainable. The High Court in exercise of it s jurisdiction under Section 100 CPC could not have reversed the decree of the courts below without holding that the above reasoning given by the courts below was legally unsustainable. We, thus, are of the view that the High Court committed error in decreeing the suit."
12. In the case of Shyam Narayan Prasad (supra), relied upon by learned counsel appearing for the respondents, the Hon'ble Supreme Court has held and observed in paragraph no.20 as under:-
"20. Section 17(1)(b) of the Registration Act mandates that any document which has the effect of creating and taking away the rights in respect of an immovable property must be registered and Section 49 of the Registration Act imposes bar on the admissibility of an unregistered document and deals with the documents that are required to be registered under Section 17 of the Registration Act. Since, the ded of exchange has the effect of creating and taking away the rights in respect of an immovable property, namely RCC building, it requires registration under Section 17. Since the deed of exchange has not been registered, it cannot be takne into account to the extent of the transfer of an immovable property."Page 13 of 23 Downloaded on : Wed Nov 23 20:31:41 IST 2022
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13. Considering the facts of the present case, it appears that the original plaintiff is the daughter of deceased Fakirbhai Patel, who filed the suit through her power of attorney for declaration and permanent injunction and claimed 1/3 rd share in the suit properties.
14. It is relevant to note here that while claiming 1/3 rd share in the suit properties, the original plaintiff has not joined other co- sharers and legal heirs of deceased Fakirbhai Patel and filed the suit only against one brother Ravjibhai and since Ravjibhai died, his legal heirs have been joined as defendants in the suit and claimed declaration and permanent injunction under Section 34 of the Specific Relief Act without claiming the final relief and interim relief of declaration which cannot be claimed. In the present case, the original plaintiff has filed the suit only for the purpose of declaration that she became 1/3 rd share in the suit properties of deceased Fakirbhai and also sought interim injunction, however, she has neither prayed for the partition nor for possession of the suit properties and, therefore, the suit itself is not maintainable in the eyes of law. So far as the relief of Page 14 of 23 Downloaded on : Wed Nov 23 20:31:41 IST 2022 C/SA/236/2015 CAV JUDGMENT DATED: 16/11/2022 declaration with regard to 1/3 rd share of the suit properties is concerned, the original plaintiff is not entitled to get possession as she has not prayed for partition or claimed for possession of the property in question. It is an admitted fact that other sisters have relinquished their rights in favour of two brothers including the mother of the present appellants, as also made a statement before the Talati at the time of drawing panchnama and subsequently, the suit came to be filed. The deceased Fakirbhai died in the year 1993 and the suit came to be filed by deceased Sumitraben against her brothers in the year 2005 i.e. after more than twelve years. The other sisters namely Urmilaben, Savitaben and Dakshaben have executed a release deed (Fargati Lekh) at Exhibit 68 whereby they have relinquished their rights in the suit properties in favour of the real brothers of deceased Sumitraben and, therefore, deceased Sumitraben has prayed 1/3rd share instead of 1/7th share in the suit properties. The Trial Court has rightly considered this aspect after evaluating the evidence produced on record and, therefore, the Trial Court has not committed any error in recording the findings. It is also relevant to note that though the original plaintiff has claimed her Page 15 of 23 Downloaded on : Wed Nov 23 20:31:41 IST 2022 C/SA/236/2015 CAV JUDGMENT DATED: 16/11/2022 right after a period of twelve years from the death of her father and as per the provision of Second 6 of the Hindu Succession Act, amended in the year 2004 which came into force in the year 2005, the Trial Court has rightly come to the conclusion that the deceased Sumitraben having 1/7th share in the suit properties. So far as the relief for declaration in the plaint is concerned, merely by declaring her as co-sharer of 1/7 th share in the suit, it cannot be said that she has not prayed for relief of possession and/or partition of the properties. The prayer made in the present appeal on behalf of the original plaintiff cannot be accepted as prayed for.
15. Considering the decision of the Hon'ble Supreme Court in the case of Akkamma and others Vs. Vemavathi and others reported in 2021 LawSuit (SC) 784 = 2021 (14) Scale 293, it appears that the issue involved in the present case is squarely covered by the said decision.
16. In the case of Akkamma (supra), the Hon'ble Supreme Court has held and observed in paragraphs no.10, 11, 13, 14, 16 to 20 as under:-
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C/SA/236/2015 CAV JUDGMENT DATED: 16/11/2022 "10. Before us, it has been urged on behalf of the appellants that having 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 for declaration, injunctive relief was also asked for. Section 34 of the 1963 Act reads:-
"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."
The aforesaid provision of law has been construed uniformly in a series of judgments. In the case of M. K. Rappai and Ors. vs. John and Ors. [(1969 (2) SCC 590] dealing with a similar provision in Section 42 of the Specific Relief Act, 1877, which was identically phrased, it was held:
"12. .........a bare declaration of right will be within the mischief of Section 42 of the Specific Relief Act, 1877 and Section 34 of the Specific Relief Act, 1963."
Same proposition of law has been followed in Ram Saran and Anr. vs. Smt. Ganga Devi [(1973) 2 SCC 60], Vinay Krishna vs. Keshav Chandra and Anr. [(1993) Supp 3 SCC 129] and Anathula Sudhakar vs. P. Buchi Reddy (Dead) By LRS. And Ors. [(2008) 4 SCC 594].
11. The High Court, on factual score, observed in the judgment under appeal:
"8. I am in full agreement with the view taken by the learned Single Judge in Aralappa's case. In the instant case the finding of the Trial Court in O.S. No. 3029/82 stating that the Plaintiffs were not in possession and enjoyment of the schedule property had become final. It is not the case of Plaintiff that subsequent to judgement in O.S. No. 3029/82 he recovered Page 17 of 23 Downloaded on : Wed Nov 23 20:31:41 IST 2022 C/SA/236/2015 CAV JUDGMENT DATED: 16/11/2022 the possession of the schedule property. That being the situation, there was no impediment for the Plaintiff's to seek the relief for recovery of possession when they filed O.S. No. 1014/87. The Plaintiffs having omitted to seek further relief of possession they are not entitled for declaring and injunction. The reasoning of the Trial Court in the impugned judgment is in accordance with law and the same is supported by evidence on record. I find no justifiable ground to interfere with the impugned judgment passed by the Trial Court."
(quoted verbatim from the copy of the judgment as reproduced in the paperbook)
13. Our attention has also been drawn to certain portions of M. Krishnaswamy's "Law of Adverse Possession" (12 th Edition). In this commentary, the author has summarised the legal position in relation to presumption of law in relation to vacant lands in the following manner:
"Possession is not necessarily the same as actual user. To prove possession, it is not necessary, generally, to prove user of land. If the land is of such a nature as to render it unfit for actual enjoyment in the usual modes, it may be presumed that the possession of the owner continues until the contrary is proved.
The jurisprudential concept of possession is made up of two ingredients: (i) the corpus: and (ii) the animus. Corpus means actual exclusive physical CONTROL over the property denoting physical possession. The animus denotes the intention and exercise of right to possess the property as owner to the exclusion of others. These, two ingredients put together go to constitute legal possession. Thus, the mere throwing of Gudha (Garbage) over an open plot of land for a very long period much more than even 12 years will not constitute legal possession of the persons throwing Gudha and muchless can such user ripen into adverse possession so as to extinguish the title of the rightful owner."
14. But these statements of law would not operate in this case, as the original plaintiff in the earlier suit had admitted possession as also use of the subjectland by the first defendant. No case of granting right of user has been made out either. Neither the plaintiff has alleged casual use of the subjectland by the first defendant. The original plaintiff's claim for possession was rejected in the 1982 suit and in the subsequent suit also, which gives rise to this appeal, the plaintiffs could not demonstrate repossession of land on the Page 18 of 23 Downloaded on : Wed Nov 23 20:31:41 IST 2022 C/SA/236/2015 CAV JUDGMENT DATED: 16/11/2022 basis of which he could obtain injunctive relief from disturbance of possession. In both the two reported decisions in the cases of Devish (supra) and Navalram Laxmidas Devmurari (supra) referred to earlier, the first two Courts - being the Courts of fact had come to affirmative finding about the plaintiffs' possession of the suit property. So far as the proceeding before us is concerned, the finding of the First Court is otherwise. The plaintiffs sought to introduce prayer for recovery of possession to cure the defect of not having made out a case on that count by way of amendment of plaint at the appellate stage. The High Court rejected this prayer. We have quoted earlier in this judgment the reason for such rejection. We are in agreement with the High Court on this point. While in a situation of this nature, amendment of plaint could be asked for (Vinay Krishna vs. Keshav Chandra and Anr.), such a plea ought to have been made within the prescribed limitation period. This position of law has been clarified in the case of Venkataraja and Ors. vs. Vidyane Doureradjaperumal (Dead) Through Legal Representatives and Ors. [ (2014) 14 SCC 502]. In this case, it has been held:
"24. A mere declaratory decree remains nonexecutable in most cases generally. However, there is no prohibition upon a party from seeking an amendment in the plaint to include the unsought relief, provided that it is saved by limitation. However, it is obligatory on the part of the defendants to raise the issue at the earliest. (Vide Parkash Chand Khurana vs. Harnam Singh and State of M.P. vs. Mangilal Sharma)."
16. The prohibition or bar contained in proviso to Section 34 of the 1963 Act determines the maintainability of a suit and that issue has to be tested on the basis the plaint is framed. If the plaint contains claims for declaratory relief as also consequential relief in the form of injunction that would insulate a suit from an attack on maintainability on the sole ground of bar mandated in the proviso to the aforesaid section. If on evidence the plaintiff fails on consequential relief, the suit may be dismissed on merit so far as plea for consequential relief is concerned but not on maintainability question invoking the proviso to Section 34 of the 1963 Act. If the plaintiff otherwise succeeds in getting the declaratory relief, such relief could be granted. On this count, we do not accept the ratio of the Karnataka High Court judgment in the case of Sri Aralappa (supra) to be good law. In that decision, it has been held:
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C/SA/236/2015 CAV JUDGMENT DATED: 16/11/2022 "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 be dismissed as not maintainable, as no decree for permanent injunction can be 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".
17. So far as the reliefs claimed in the suit out of which this appeal arises, prayer for declaration was anchored on two instances of interference with the possession of land of the plaintiffs and injunctive relief for restraint from interference with the property was also claimed. But possession of the said property by the original plaintiff was not established. The alternative relief sought to be introduced at a later stage of the suit was also found to be incapable of being entertained for the reason of limitation. Thus, the foundation of the case of the plaintiffs based on these two factual grounds collapsed with the factfinding Courts rejecting both these assertions or allegations. But that factor ought not to be a ground for denying declaration of ownership to the plaintiffs. There is no bar in the Specific Relief Act, 1963 in granting standalone declaratory decree. The Trial Court came to a positive finding that the original plaintiff was the owner of the suit property. But it held that in absence of declaration of relief of possession by the plaintiff, declaration of title cannot be granted. We have already expressed our disagreement with this line of reasoning. It seems to be a misconstruction of the provisions of Section 34 of the 1963 Act. The Trial Court and the High Court have proceeded on the basis that the expression "further relief" employed in that proviso must include all the reliefs that ought to have been claimed or might have been granted. But in our view, that is not the requirement of the said proviso. This takes us to the corollary question as to whether the 1987 suit could have been held to be barred under the principle 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 in the facts of this case, as the denial of legal right in the 1987 suit is pegged on two alleged incidents of 15 th and 25th February, 1987. These Page 20 of 23 Downloaded on : Wed Nov 23 20:31:41 IST 2022 C/SA/236/2015 CAV JUDGMENT DATED: 16/11/2022 allegations can give rise to claims for declaration which obviously could not be made in the 1982 suit. The claim for declaratory decree could well be rejected on merit, but the suit in such a case could not be dismissed invoking the principles incorporated in Order II Rule 2 of the Code of 1908.
18. The High Court has proceeded on the footing that in the subject suit, the original plaintiff must have had asked for relief for recovery of possession and not having asked so, they became disentitled to decree for declaration and possession. But as we have already observed, the proviso to Section 63 of the 1963 Act requires making prayers for declaration as well as consequential relief. In this case, if the relief on second count fails on merit, for that reason alone the suit ought not to fail in view of aforesaid prohibition incorporated in Section 34 of the 1963 Act.
19. Having opined on the position of law incorporated in Section 34 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 plaintiff lost for failing to establish possession. In the second suit (the 1987 suit), reliefs were claimed for declaration based on allegation of subsequent disturbances and on that basis injunctive relief was asked for. The plaintiffs' claim for being in possession however failed. Thus, no injunction could be granted restraining the defendants from disturbing or interfering with the original plaintiffs' possession of the suit land. But as the Trial Court found ownership of the original plaintiff was proved, in our view the original plaintiff was entitled to declaration that he was the absolute owner of the suit property. There is no bar in granting such decree for declaration and such declaration could not be denied on the reasoning that no purpose would be served in giving such declaration. May be such declaratory decree would be nonexecutable in the facts of this case, but for that reason alone such declaration cannot be denied to the plaintiff. Affirmative finding has been given by the Trial Court as regards ownership of the original plaintiff over the subject property. That finding has not been negated by the High Court, being the Court of First Appeal. In such circumstances, in our opinion, discretion in granting declaratory decree on ownership cannot be exercised by the Court to deny such relief on the sole ground that the original plaintiff has failed to establish his case on further or consequential relief.
20. In these circumstances, we sustain the judgment of the High Court that the plaintiffs were not entitled to injunctive re- Page 21 of 23 Downloaded on : Wed Nov 23 20:31:41 IST 2022 C/SA/236/2015 CAV JUDGMENT DATED: 16/11/2022 lief as prayed for and also the rejection of the plaintiffs' plea for introduction of relief for possession. But at the same time, we set aside that part of the judgment by which it has been held that the plaintiffs were disentitled to declaration of own- ership of the property. We accordingly hold that the plaintiffs are entitled to declaration that they are owners of the suit property and there shall be a decree to that effect.
17. Therefore, I am of the considered opinion that the impugned judgment and decree passed by the Trial Court is required to be confirmed and the impugned judgment and order passed by the First Appellate Court is required to be dismissed. It appears that the original plaintiff is entitled to get 1/7 th share of the ancestral properties. As the original plaintiff has filed the suit only for claiming status-quo right over the suit for declaration, but she is not entitled to any prohibitory relief by restraining the defendants.
18. In view of the above, the present appeal succeeds in part. So far as the prayer for declaration of the original plaintiff is concerned, she is declared to be the owner of 1/7 th share of the ancestral property of deceased Fakirbhai Patel as mentioned in the plaint. So far as the prayer for transfer of the suit properties is concerned, the original plaintiff is not entitled for any Page 22 of 23 Downloaded on : Wed Nov 23 20:31:41 IST 2022 C/SA/236/2015 CAV JUDGMENT DATED: 16/11/2022 injunctory relief as the suit was not filed for final consequential relief and, therefore, the judgment and decree passed by the Trial Court qua second relief by injuncting the otherside is hereby quashed and set aside and the judgment and decree passed by the Trial Court is hereby confirmed qua declaration that the original plaintiff is the owner of 1/7 th share in ancestral properties of late Shri Fakirbhai. Since other sisters have not claimed their share and released their rights in favour of real brothers, no further discussion is required to be noted in this regard. The Trial Court to draw decree accordingly. With regard to the declaratory relief, the original plaintiff is hereby declared as owner of 1/7 th share in the ancestral properties of the deceased Fakirbhai Patel who died in the year 1993.
19. The appeal is disposed of accordingly. There shall be no order as to costs. Registry is directed to transmit back the record and proceedings to the concerned Court forthwith.
Sd/-
(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 23 of 23 Downloaded on : Wed Nov 23 20:31:41 IST 2022