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Somayya Belchada vs Santhosh on 13 June, 2025 cites

Sant Lal (Dead) Thr. His L.R Vinod Kumar vs Sadhu Ram (Dead) Thr. His Lrs. . on 26 October, 2015

24. Having considered the principles laid down in the judgment referred supra, adverting the facts of present case on a perusal of the plaint, it is evident that the defendant was in possession of the suit schedule property and also there is a clear admission in the evidence also and also he categorically pleaded in the written statement that he is in possession of the property and there was a Will and also he had constructed the house and residing there. Even in the case on hand also, during the course of cross- 26 examination, suggestion was made to the D.W.1 that he has been in permissive possession. Hence, it is clear that defendant was in possession of the property in respect of the written statement schedule property which he had claimed and also not made any effort seek for the relief of possession by amending the plaint as observed in the above judgment of Vinay Krishna V/s Keshava Chandra and also material is very clear that defendant is in possession of the property. Though an attempt was made by the counsel appearing for the respondent relying upon the judgment of Maharashtra referred simple imprisonment[ra that suit for declaration simpliciter is maintainable, but in view of the judgment of the Apex Court it is very clear that when the plaintiffs are not in possession of the property they cannot seek for the relief of declaration without seeking the relief of possession and suit for declaration simpliciter is not maintainable and also it is held that it is settled law that amendment of a plaint can be made at any stage of a suit, 27 even at the second appellate stage and in the present case on hand also no such attempt was made and when such being the case, it is clear that the judgment of the Trial Court and First Appellate Court is erroneous and though comes to the conclusion that Will is hit by Section 61 of Karnataka Land Reforms Act but, both the Courts failed to take note of fact that defendant is in possession of the property and plaintiffs are not in possession of the property in respect of the written statement schedule property and without seeking the relief of possession, the very suit for simpliciter for declaration is not maintainable. Hence, there is a force in the contention of the appellants' counsel. This Court also while admitting the second appeal taken note of this judgment and framed the substantive question of law and having considered the material on record, detailed discussion is made. Hence, it requires interference of this Court and answered the said substantive question of law as affirmative.
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