Specific Relief Act, 1963 – s.34 – Two suits were filed in 1982 and 1987 in respect of the suit property – The 1982 suit, for perpetual injunction, was dismissed by the trial Court on the ground that plaintiff could not establish his lawful possession – Appeal was also dismissed by the High Court – The plaintiff alleged that defendants made attempts to interfere with his possession, hence 1987 suit was founded – Suit was for declaration of ownership and injunction – The trial Court held that plaintiffs proved ownership, but the aspect of possession and obstruction went against the plaintiffs – The suit was dismissed – High Court upheld the decision of the trial Court – Before the High Court, the plaintiff had sought to amend the plaint seeking alternative relief of possession of the suit property, however, the said relief was denied – Before Supreme Court, the appellants-plaintiffs having regard to the provision of s.34 of the 1963 Act urged that the suit ought not to have been dismissed as along with the claim for declaration, injunctive relief was also sought – Held: The High Court was right in holding that possession of the suit property was not established and hence injunctive relief could not not be granted – The High Court was also right in rejecting the plea for amendment – 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 stand alone 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 – This line of reasoning is not correct – There is a misconstruction of the provisions of Section 34 of the 1963 Act – 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 the case, but for that reason alone such declaration cannot be denied to the plaintiff.
Partly allowing the appeal, the Court
HELD: 1. 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. [Para 16] [1199-F-G]
2. 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 fact-finding 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 opinion of this Court, 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 15th and 25th February, 1987. These 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. [Para 17][1200-C-H; 1201-A-B]
3. 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, 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. [Para 18][1201-B-D]
4. 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 opinion of this Court, 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. [Para 19][1201-D-H; 1202-A] M. K. Rappai and Ors. vs. John and Ors. 1969 (2) SCC
590 : [1970] (2) SCR 124; Ram Saran and Anr. vs. Smt. Ganga Devi 1973 2 SCC 60; Vinay Krishna vs. Keshav Chandra and Anr. 1993 Supp 3 SCC 129; Anathula
Sudhakar vs. P. Buchi Reddy (Dead) By LRS. And Ors. 2008 4 SCC 594 : [2008] (5) SCR 331; Venkataraja and Ors. vs. Vidyane Doureradjaperumal (Dead)
Through Legal Representatives and Ors. 2014 14 SCC
502 : [2013] (5) SCR 814 – relied on.
Sri Aralappa vs. Sri Jagannath & others (ILR 2007 Kar 339) – disapproved.
Devish vs. M.K. Subbiah and Ors. AIR 1970 Mys 249; Navalram Laxmidas Devmurari vs. Vijayaben
Jayvantbhai Chavda AIR 1998 Guj 17 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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