Karnataka High Court

Nanjundappa vs Channabasappa on 30 October, 2024

Author: Ravi V Hosmani

Bench: Ravi V Hosmani

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                                                         RSA No. 920 of 2012




                       IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                         DATED THIS THE 30TH DAY OF OCTOBER, 2024
                                             BEFORE
                          THE HON'BLE MR JUSTICE RAVI V HOSMANI
                      REGULAR SECOND APPEAL NO. 920 OF 2012 (DEC/INJ)
                  BETWEEN:

                  1.     NANJUNDAPPA,
                         S/O LATE HANUMANTHAPPA,
                         SINCE DEAD BY LRs

                  1(a)   SMT. NANJUNDAMMA,
                         W/O LATE NANJUNDAPPA,
                         AGED ABOUT 80 YEARS,

                  1(b) SRI CHANDRASHEKARAPPA,
                       S/O LATE NANJUNDAPPA,
                       AGED ABOUT 45 YEARS,

                  1(c)   SRI BASAVARAJAPPA N.,
                         S/O LATE NANJUNDAPPA,
                         AGED ABOUT 40 YEARS,

                  1(d) SRI MALLIKARJUNA N.,
                       S/O LATE NANJUNDAPPA,
                       AGED ABOUT 38 YEARS,
Digitally signed by
ANUSHA V                 ALL ARE R/A NANDI VILLAGE,
Location: High           LINGADAHALLI HOBLI,
Court Of Karnataka
                         TARIKERE TALUK.
                                                               ...APPELLANTS
                  [BY SRI R.C. NAGARAJ, ADVOCATE (PH)]
                  AND:

                  1.     CHANNABASAPPA,
                         S/O SIDDAPPA,
                         SINCE DEAD BY LRs

                  1(a)   SRI YATHISH N.C.,
                         S/O LATE CHANNABASAPPA,
                         AGED ABOUT 33 YEARS,
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                                           RSA No. 920 of 2012




1(b) SRI PRASANNA N.C.,
     S/O LATE CHANNABASAPPA,
     AGED ABOUT 33 YEARS,

     BOTH ARE R/A NANDI VILLAGE,
     LINGADAHALLI HOBLI, TARIKERE TALUK.

2.   RAJAPPA,
     S/O RANGANNA,
     AGED ABOUT 48 YEARS

     BOTH ARE AGRICULTURIST,
     R/O NANDI VILLAGE, LINGADAHALLI HOBLI,
     TARIKERE TALUK - 577 548.

3.   MANJAPPA,
     AGED ABOUT 57 YEARS
     S/O BASAVALINGAPPA,

4.   BASAVARAJAPPA,
     AGED ABOUT 57 YEARS,
     S/O SIDDAPPA

5.   REVANASIDDAPPA,
     AGED ABOUT 47 YEARS,
     S/O NANJUNDAPPA,

6.   SHIVANNA, S/O MALLAPPA,
     AGED ABOUT 52 YEARS,

7.   PARAMESHWARAPPA,
     AGED ABOUT 52 YEARS,
     S/O MALLAPPA,

8.   SMT. INDIRAMMA,
     AGED ABOUT 57 YEARS,
     W/O LATE GANGADHARAPPA,

     RESPONDENTS NO.3 TO 8 ARE
     R/O NANDI VILLAGE,
     LINGADAHALLI HOBLI, TARIKERE TALUK.

                                               ...RESPONDENTS
[BY SRI RAVI H.K., ADVOCATE FOR R1 (a & b) (PH);
    SRI LAKSHMI NARAYANA, ADVOCATE FOR R2 TO R8]
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                                                   RSA No. 920 of 2012




        THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 13.03.2012 PASSED IN
R.A.NO.48/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE & PRL.
JMFC., TARIKERE, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT        AND   DECREE       DATED    16.09.2006      PASSED    IN
O.S.NO.157/1999 ON THE FILE OF THE CIVIL JUDGE (JR.DN) &
ADDL. JMFC., TARIKERE.


        THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:


CORAM:        HON'BLE MR JUSTICE RAVI V HOSMANI


                            ORAL JUDGMENT

Challenging judgment and decree dated 13.02.2012

passed by Senior Civil Judge and Principal JMFC, Tarikere,

allowing R.A.no.48/2006 as well as dismissing Cross-Appeal

filed against judgment and decree dated 16.09.2006 passed by

Civil Judge (Jr.Dn.) and Additional JMFC, Tarikere, in

O.S.no.157/1999, this appeal is filed.

2. Brief facts as stated are that, vacant sites in Nandi

village, Lingadahalli Hobli, Tarikere Taluk bearing khanesumari

nos.257, 258, 259, 260, 262 to 267 measuring East-West 500

feet and North-South 300 feet was subject matter of

O.S.no.157/1999 filed between parties herein (referred to as

'suit property') seeking for declaration that plaintiff was owner

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in possession of suit property and consequential relief of

permanent injunction restraining defendants, etc., from

interfering with plaintiff's peaceful possession and enjoyment of

suit property. In plaint, it was stated, suit property was

purchased by plaintiff under registered Sale Deed dated

23.04.1956 from Vallanna S/o Eranna for valuable

consideration of Rs.400/- and plaintiff was put in possession. It

was stated that original Sale Deed was later lost/misplaced. It

was further stated, plaintiff was unable to construct houses in

sites. Hence, they were used for agriculture. And when he

applied for khanesumari extracts, he was issued with an

endorsement that records were not available. It was stated that

at time of suit, plaintiff had grown sunflower, chilly,

tingalavurali, peas, maize and urad, etc.

3. It was stated, without any right, title or possession,

defendants entered suit property on 03.08.1999 at 1:00 p.m.

and destroyed crops with intent to dig pits, fix poles and

construct houses. Plaintiff filed private complaint on 05.08.1999

and also gave police complaint. Police issued endorsement that

dispute was civil in nature. On apprehension that defendants

being powerful were likely to trespass again, suit was filed.

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4. On service of summons, defendant no.2 filed

written statement, generally denying entire plaint averments.

He also disputed correctness of measurements and boundaries

of suit property in plaint schedule. He specifically stated that

schedule in plaintiff's Sale Deed and plaint schedule did not

tally with each other. It was stated that he along with some

other houseless persons had constructed thatched sheds on

Gramathana about ten years ago and in possession since then.

Hence, plaintiff was not entitled for relief of injunction. He also

claimed to have filed application for grant of site which were

pending before Panchayath. Therefore, suit was bad for non-

joinder of necessary parties.

5. In separate written statement, in addition to above,

defendant no.3 stated sale deed itself indicated that sites sold

belonged to Sanna Eranna, therefore Vallanna, who executed

Sale Deed in favour of plaintiff, did not have title or possession

of properties. Further, properties were situated at Nandi village

but, boundary description shown in plaint measured about 3

Acres 27 guntas of land in Gollarahalli village, which was

surveyed, sketch prepared and separate phodi in respect of

said village made by Survey department. Thus, plaintiff was

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claiming title in respect of entire Gollarahalli village by showing

its measurement as East-West 500 feet and North-South 300

feet which would be 15 guntas. It was specifically stated that

defendants no.3 to 6 were in possession of extent of 30 ft. X 30

ft. in 3.17 Acres of Gollarahalli village by constructing

Mangaluru tiled house and residing there since fifteen years. It

was stated that plaintiff had sought to dispossess defendants

with help of police on basis of order of temporary injunction.

Alleging that suit was frivolous and vexatious, sought for its

dismissal. Defendants no.4 to 8 filed memo adopting written

statement of defendant no.3.

6. Based on same, following issues / additional issues were framed:

Issues:

1. Whether plaintiff proves title to suit property?

2. Whether plaintiff proves lawful possession over suit property?

3. Whether plaintiff proves interference by defendants?

4. Whether defendants prove that plaintiff has lost possession over suit property?

5. Whether suit is bad for non-joinder of parties?

6. Whether this court has no pecuniary jurisdiction to try the matter?

7. What decree or order?

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Additional Issues:

1. Whether defendants no.3 to 8 proves that vendor of plaintiff had no title to sell khaneshumari no.264 and 265?

2. Whether defendants no.3 to 8 further proves that plaintiff ingeniously claiming entire Gollarahalli village by showing boundaries though khaneshumari no.257 to 260, 262 and 267 situated at Nandi village?

7. Thereafter, plaintiff examined himself as PW-1 and

got marked Exs.P1 to P5, while defendants no.1 and 3

examined themselves as DWs-1 and 2 and got marked Exs.D1

to D12.

8. On consideration, trial Court answered issue no.1 in

affirmative, remaining issues in negative and issue no.7 by

decreeing suit in part, declaring plaintiff as absolute owner of

suit property, but, dismissing suit insofar as relief of permanent

injunction.

9. Aggrieved, defendants filed R.A.no.48/2006 on

various grounds including that judgment and decree passed by

trial Court was opposed to law, evidence and probabilities of

case. That, finding of trial Court about plaintiff being owner of

suit property was untenable and perverse, without taking into

consideration material placed on record by defendants. Further,

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finding that plaintiff had better title to suit property than

defendants was without examining title of plaintiff's vendor.

That, trial Court erred in its conclusion about Gollarahalli being

included in Nandi village. It was also contended that Ex.P1 -

title deed of plaintiff did not contain any measurement.

Therefore, trial Court erred in granting declaration of title in

respect of property measuring 300 ft. X 500 ft.

10. Opposing said appeal, plaintiff filed Cross-Appeal

contending that trial Court erred in granting only declaration

and refusing permanent injunction even though defendants

failed to establish their possession over suit property. Trial

Court erred in ignoring legal possession follows title. Further,

trial Court erred in not considering Ex.P5 - resolution, which

showed plaintiff's possession over suit property etc. On above,

grounds plaintiff sought dismissal of appeal filed by defendants.

11. Based on contentions, first appellate Court framed

following:

Points

1. Whether the findings and reasons recorded on issued no.1 and additional issue no.1 & 2 holding that the plaintiff has proved his title to the suit schedule property required to be interfered?

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2. Whether the findings and reasons recorded by the trial Court on issued no.2 to 4 holding that the plaintiff has failed to prove his lawful possession of the suit schedule property required to be interfered by this court?

3. Whether the findings and reasons recorded on by the trial Court declaring title of the plaintiff to the suit schedule property required to be interfered by this court in exercising its appellate jurisdiction?

4. To what relief and decree the parties entitled to?

12. On consideration, first appellate Court answered

points no.1 and 3 in affirmative, point no.2 in negative and

point no.4 by allowing appeal filed by defendants, dismissing

plaintiff's Cross-Appeal and consequently, setting aside

judgment and decree passed by trial Court and dismissing

O.S.no.157/1999.

13. Aggrieved, plaintiff had preferred this Regular

Second Appeal. During pendency of appeal, original plaintiff as

well as defendant no.1 died and their legal representatives

have come on record.

14. Sri R.C. Nagaraj, learned counsel for appellants-LRs

of plaintiff submitted appeal was against judgment and decree

passed by first appellate Court not only allowing first appeal

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filed by defendants, but also dismissing Cross-Appeal filed by

plaintiff. It was submitted, whereas plaintiff was seeking relief

of declaration of title and for permanent injunction against

interference by defendants. To substantiate title, plaintiff had

produced certified copy of registered sale deed dated

23.04.1956 as Ex.P1. Defendants did not produce any records

to contradict plaintiff's title. They also failed to produce any

record to establish that they had put up construction or were in

possession of any portion of suit property. Such being case,

trial Court had rightly granted decree of declaration of title, but,

erroneously denied relief of injunction. Though in Cross-Appeal,

plaintiff had challenged refusal of relief of permanent injunction

by trial Court, first appellate Court had only considered appeal

filed by defendants and at time of allowing appeal

consequentially dismissed Cross-Appeal without proper

consideration. It was submitted, judgment and decree passed

by first appellate Court was contrary to settled legal principle

that possession follows title and therefore, submitted following

substantial questions of law would arise for consideration:

1. Whether first appellate Court was justified in its conclusion that reasons and findings of Trial Court while granting declaration of title called for interference?

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2. Whether first appellate Court was justified in dismissing suit, when defendants did not produce any documents to show any right, title and interest in suit property?

15. In support of his submission, learned counsel relied

on following observations by High Court of Madras in case of

Arulmigu Velukkai Sri Azhagiya Singaperumal

Devasthanam v. G.K. Kannan, reported in 2020 SCC

OnLine Mad 28257:

"33. A denial of the plaintiffs title in the written statement is merely a pleading of the defendant. It is part of his strategy, and is fundamentally self-serving. Can therefore, a denial of plaintiffs title without anything more, be adequate enough to conclude that the title of the plaintiff has come under a cloud? For instance, in the present case, Andalammal had purchased two items of properties (of which one is the suit property), sometime in 1892 and 1893, and endowed them for religious charity under Ext.A-5 in 1907, and the plaintiff has produced documents up to couple of years next before the institution of the present suit for proving the character of the suit property. So far as the plaintiff-temple is concerned, the initial burden cast on it to prove its case has been discharged. The law on shifting of burden of proof informs that the burden shifts to the defendant only after the plaintiff has discharged his burden, which in other words would mean that when the evidence produced by the plaintiff is found to be capable of producing a certain prima facie conclusion in support of the latter's case. Now, can the prima facie conclusion on the plaintiffs title based on his evidence, be stated to have been adequately defended by a mere denial of plaintiffs title in the written statement, or its inadequate proof?

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34. If a mere denial in the pleading of the defendant is considered adequate, it instantly dispenses him of his burden to prove his plea of denial of plaintiffs title, which then will automatically elevate the defendant's pleading on a disputed fact (and not law) to the status of its proof. This would give an unfair procedural advantage to the defendant. Viewing it from another angle, if only a denial of plaintiff's title in the written statement without anything more, can be a ground to non-suit the plaintiff for not seeking a declaratory relief, then that could have been made the ground to dismiss the suit on a preliminary issue, but Order XIV Rule 2 CPC, does not provide for this course. It cannot be ignored that, notwithstanding the nature of action, and irrespective of whether the relief sought is one under the common law, or a discretionary relief in equity, the procedure which the Courts adopt for trial of the case and the law on burden of proof that govern the trial remain the same for both.

35. It can now be deduced that, to constitute a cloud on plaintiffs title, there must be evidence for the Court to conclude prima facie that the plaintiffs assertion of title to a legal character, or to a right over a property has come under the cloud. Let it not be forgotten, that life's experience in this country, which both the Courts and the legal practitioners would vouchsafe, that not every litigant makes a bonafide denial of plaintiffs title. While, a bonafide denial of plaintiff title with some evidence may merit consideration, to non-suit the plaintiff with a colorable denial of former's title will be unconscionable, if only it is acknowledged that fairness is integral to our adversarial jurisprudence.

36. Hence, it is necessary for the Court to weigh:

• The quality of the pleadings to ascertain if the defendant alleges if a third party to the

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suit has the title, or, if he traces his title to the same source from which plaintiff also derives title, or if the defendant relies on an independent source of title to some other source;

• If the evidence produced by the defendant to prove his plea of denial of the plaintiffs title covers the same period for which the plaintiff has produced the evidence, or whether such evidence as produced by both the plaintiff and the defendant are separated by a clear time-line; • If any adverse inference is required to be drawn against any of the parties for not producing the evidence which is in their capacity to produce, and evaluate the relative quality of the evidence made available before it. (What is indicated here is not exhaustive since every case has its own character. When the rule of probability determines the nature of the decision to be made, it can never be exhaustive too.). This precisely is the exercise what the Court engages in it is required to enter a finding on a disputed title incidentally in a suit for bare injunction.

37. Ideally, the Court may engage in a certain process to achieve a certain degree of balance between a bonafide denial of title and a colorable denial of title:

• Firstly, it may independently evaluate the plaintiff's title based on the evidence he produces, and then evaluate the resistance to it in terms of the defendant's case. Then it may try viewing the conclusion arrived on the plaintiffs case through the conclusion arrived in defendants case (something like holding a glass in between the eye and the object).

• If the vision to the plaintiffs title is not obstructed or blurred, then there is no cloud on plaintiffs title, and if it is not, then there is one (though in actual working, the mind

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works faster and enables an understanding instantaneously).

• And if after this process, the Court holds that the suit is maintainable without a relief of declaration, then subject to the rule of res judicata, the defendant may institute a suit to establish his title.

38. The above course, in the estimate of this Court, will infuse a certain degree of processual fairness to the whole discourse relating to 'cloud on title', and non-suiting the plaintiff for not seeking a declaratory relief If it were to be understood differently, then a person with a settled title and possession for a long period can face a threat to such title at anytime of the defendant's choice, who may emerge from nowhere, with mere denial of the plaintiffs title on his lip. And the defendant will be under no burden to prove his case, since the defendant in our legal system can recline on the comfort of the procedural law, and wait for the plaintiff to prove his title. And, in the process, he may count every shades of weakness in the plaintiffs case, the advantage of which the plaintiff does not have, since the law on burden of proof does not permit the plaintiff to rely on the weakness of the defendant's case.

39. If fairness has to reign supreme in our processual jurisprudence, it is necessary to eliminate a seeming opportunity available to the defendant to steal an unfair procedural advantage over the plaintiff. It then becomes indispensable for Courts of facts to realize their responsibility, assert their role as fair arbiters within the bounds of available procedure, and ascertain if the denial of the plaintiff's title by the defendant is bonafide, or hollow and colorable."

16. On other hand, Sri Ravi H.K., learned counsel for

respondents no.1 (a) and (b) and Sri Lakshmi Narayana,

learned counsel for respondents no.2 to 8 opposed appeal. It was

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submitted, while passing impugned judgment and decree, first

appellate Court has re-appreciated entire material on record

and had given findings not only on question of title, but, also

about possession over suit property. It had concluded that

plaintiff failed to establish either title or possession over suit

property. On said finding of fact arrived after consideration of

entire material on record, it had allowed defendants appeal and

dismissed plaintiff's Cross-Appeal. Therefore, no substantial

questions of law as proposed arose for consideration. It was

submitted, though there was declaration of title by trial Court,

it had denied relief of permanent injunction taking note of

evidence about suit property being in possession of defendants.

Since plaintiff had not sought for relief of possession, nor

preferred appeal against rejection of prayer for permanent

injunction, first appellate Court had rightly allowed appeal. It

was submitted, prayer for declaration without consequential

prayer for possession, when plaintiff was out of possession

would be fatal and in accordance with settled legal principles.

On above grounds, sought for dismissal of appeal.

17. Heard learned counsel, perused impugned

judgment and decree and record.

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18. From above, it is seen, plaintiff filed suit for

declaration of his title over suit property and for permanent

injunction against interference with his possession over suit

property. Pleading in plaint reveals that plaintiff claimed to

have purchased suit property under Ex.P1 - registered sale

from Vallanna s/o Eranna and put in possession. He further

pleaded, due to inability to construct house, he was using it for

growing sunflower, chilly etc., when on 03.08.1999 defendants

trespassed into suit property and destroyed crops. He has

stated about filing of police complaint as well as private

complaint before Court and that suit was filed on apprehension

about trespass by defendants once again.

19. In written statement, defendants denied title of

plaintiff's vendor over suit property and also disputed

correctness of measurements and boundaries of suit property

which they alleged to be measurement of entire village. They

claimed to be in possession of portions of suit property by

constructing houses and residing therein since ten to fifteen

years. They claim to have applied for grant of sites, which were

pending before Panchayath. Therefore, suit was bad for non-

joinder of necessary parties.

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20. It is seen that to substantiate claim, plaintiff

deposed as PW.1 and produced certified copy of sale deed

dated 23.04.1956, endorsement issued by Gram Panchayat,

Encumbrance certificates and Panchayat resolution as Exs.P1 to

P5. While in rebuttal, defendants produced photograph with

negative, sketch, village map, Akarband and sketch, RTCs,

certified copy of sale deed and certificate issued by Fire Station

as Exs.D1 to D12.

21. While passing impugned judgment and decree, trial

Court took note of pleadings, documentary and oral evidence.

It noted, in cross-examination, PW.1 admitted that in Ex.P1 -

sale deed there was no mention of measurement of property

and he was unaware about measurements of each khanesumari

property. He also admitted existence of Junjappa temple in suit

property as shown in Ex.D1 - photograph. It further referred to

admission by PW.1 that suit property was situated in

Gollarahalli village.

22. Trial Court thereafter embarks on comparing

boundaries of suit property with Exs.D11 and D7, D9 and D10

and referring to village map it concludes Gollarahalli is abutting

Nandi village, but being Becharak village was part of Nandi

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village. On said reasoning, it concludes dispute about improper

description of suit property as unsubstantiated. Insofar as

dispute regarding measurement of suit property, it concludes,

in case measurement of immovable property not being clear,

recitals in boundary description would prevail by referring to

case law. Thereafter, by invoking presumption available under

Section 90 of Indian Evidence Act to Ex.P1 - sale deed and

taking note of conduct of defendants in merely denying

plaintiff's title without producing any contrary material to hold

plaintiff's title to suit property as established. But, taking note

of fact that defendants established their possession, as plaintiff

himself had impleaded defendants no.3 to 8 on ground that

they had encroached suit property during pendency of suit, it

held plaintiff was not entitled for relief of permanent injunction.

It also observes, when plaintiff admitted defendants being in

possession, it would not be necessary to determine whether

such possession was lawful or otherwise.

23. While passing impugned judgment and decree, first

appellate Court also referred to pleadings, oral and

documentary evidence. Referring to recitals in Ex.P1, wherein it

was stated, only property bearing khanesumari no.265 stood in

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name of vendor while rest of them stood in name of different

persons namely, Chikkanna S/o Doddathamma, Eranna S/o

Chikkanna and Sanna Eranna. It also noted absence of

measurement of demised property in Ex.P1. It referred to

admission by PW.1 that measurement of suit property was

furnished on basis of his imagination and lack of records as per

Ex.P2 - Endorsement, to conclude that plaintiff failed to

establish his vendor's title to property purchased by plaintiff. It

also concluded, when recitals in Ex.P1 - sale deed disclose that

only one amongst demised properties stood in name of vendor,

adverse inference drawn against defendants for not producing

any documents to establish better title in their favour was also

contrary to law.

24. Referring to case law relied upon in support of

finding that boundary description would prevail, first appellate

Court concludes such resort would be available only in case of

conflict between boundary description and measurement.

Presumption could not be applied in case of total absence of

measurement in title deed.

25. Insofar as possession, it refers to admission by

plaintiff about existence of four to five houses in suit property

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and specifically to admission about intention behind filing of

suit for eviction of defendants from suit property in addition to

clear assertion in I.A.no.10 that defendants no.3 to 8 had put

up thatched huts in suit property, to confirm finding of trial

Court about plaintiff being out of possession. Applying principle

of law that mere prayer for declaration of title, when plaintiff

was not in possession would not be maintainable and taking

note of fact that plaintiff had not sought prayer for possession,

concluded that decree of declaration of title would be wholly

untenable. On said reasoning, first appellate Court held that

there was improper consideration of material on record by trial

Court and that its conclusions were erroneous. On said findings,

it allowed appeal.

26. Perusal of deposition of PW.1, reveals admission

about defendants being in possession of suit property. Finding

of both Courts on this aspect is concurrent. Though, plaintiff as

sought to contend that his dispossession from suit property was

during pendency of suit, there is no material placed on record

to substantiate same. In fact, he has specifically admitted that

only after grant of ex-parte order of temporary injunction, he

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had entered suit property, would substantiate findings of both

Courts.

27. Admittedly, relief sought by plaintiff herein are only

for declaration of title and for permanent injunction restraining

defendants from interfering with plaintiff's lawful possession.

When plaintiff is admittedly out of possession, suit for bare

declaration of title without consequential prayer for being put

back in possession would fall foul of proviso to Section 34 of

Specific Relief Act, 1963, which reads as follows:

"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, 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."

28. In this regard, after referring to case law on this

aspect Hon'ble Supreme Court has recently held in Vasantha

v. Rajalakshmi, reported in (2024) 5 SCC 282 as follows:

"49. We now proceed to examine the law on this issue. As submitted by the learned Senior Counsel for the appellant, in Vinay

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Krishna v. Keshav                Chandra [Vinay

Krishna v. Keshav Chandra, 1993 Supp (3) SCC 129] (two-Judge Bench), this Court while considering Section 42 of the erstwhile Specific Relief Act, 1877 to be pari materia with Section 34 of SRA, 1963 observed that the plaintiff's not being in possession of the property in that case ought to have amended the plaint for the relief of recovery of possession in view of the bar included by the proviso.

50. This position has been followed by this Court in Union of India v. Ibrahim Uddin (two-Judge Bench), elaborated the position of a suit filed without the consequential relief. It was observed:

(SCC p. 173, paras 55-58) "55. The section provides that courts have discretion as to declaration of status or right, however, it carves out an exception that a court shall not make any such declaration of status or right where the complainant, being able to seek further relief than a mere declaration of title, omits to do so.

56. In Ram Saran v. Ganga Devi [Ram Saran v. Ganga Devi, (1973) 2 SCC 60] this Court had categorically held that the suit seeking for declaration of title of ownership but where possession is not sought, is hit by the proviso to Section 34 of the Specific Relief Act, 1963 and, thus, not maintainable. In Vinay Krishna v. Keshav Chandra [Vinay Krishna v. Keshav Chandra, 1993 Supp (3) SCC 129] this Court dealt with a similar issue where the plaintiff was not in exclusive possession of property and had filed a suit seeking declaration of title of ownership. Similar view has been reiterated observing that the suit was not maintainable, if barred by the proviso to Section 34 of Specific Relief Act. (See also Gian Kaur v. Raghubir Singh [Gian Kaur v. Raghubir Singh, (2011) 4 SCC 567:

(2011) 2 SCC (Civ) 366].)

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57. In view of the above, the law becomes crystal clear that it is not permissible to claim the relief of declaration without seeking consequential relief.

58. In the instant case, the suit for declaration of title of ownership had been filed, though Respondent 1-plaintiff was admittedly not in possession of the suit property. Thus, the suit was barred by the provisions of Section 34 of the Specific Relief Act and, therefore, ought to have been dismissed solely on this ground. The High Court though framed a substantial question on this point but for unknown reasons did not consider it proper to decide the same."

51. In Venkataraja v. Vidyane Doureradjaperumal [Venkataraja v. Vidyane Doureradjaperumal, (2014) 14 SCC 502 : (2015) 1 SCC (Civ) 360] (two-Judge Bench), the purpose behind Section 34 was elucidated by this Court. It was observed that the purpose behind the inclusion of the proviso is to prevent multiplicity of proceedings. It was further expounded that a mere declaratory decree remains non-executable in most cases. This Court noted that the suit was never amended, even at a later stage to seek the consequential relief and therefore, it was held to be not maintainable. This position of law has been reiterated recently in Akkamma v. Vemavathi [Akkamma v. Vemavathi, (2021) 18 SCC 371] (two-Judge Bench).

52. This Court in Arulmigu Chokkanatha Swamy Koil Trust v. Chandran [Arulmigu Chokkanatha Swamy Koil Trust v. Chandran, (2017) 3 SCC 702 : (2017) 2 SCC (Civ) 334] (two-Judge Bench), while reversing the High Court decree, observed that because of Section 34 of the SRA, 1963, the plaintiff not being in possession and claiming only declaratory relief, ought to have claimed the relief of recovery of possession. It was held that the trial court rightly dismissed the

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suit on the basis that the plaintiff has filed a suit for a mere declaration without relief for recovery, which is clearly not maintainable.

53. That apart, it is now well settled that the lapse of limitation bars only the remedy but does not extinguish the title. Reference may be made to Section 27 of the Limitation Act. This aspect was overlooked entirely by the High Court in reversing the findings of the courts below. It was not justified for it to have overlooked the aspect of limitation, particularly when deciding a dispute purely civil in nature.

54. Adverting to the facts of the present case, on [

a perusal of the plaint, it is evident that the plaintiff was aware that the appellant herein was in possession of the suit property and therefore it was incumbent upon him to seek the relief which follows. The plaintiff himself has stated that Defendant 1 was in possession of the subject property and had sought to transfer possession of the same to Defendant 2, thereby establishing that he himself was not in possession of the subject property. We are not inclined to accept the submission of the learned counsel for the respondent on this issue. We note that after the death of the life estate holder in 2004, there was no attempt made by the original plaintiff to amend the plaint to seek the relief of recovery of possession. It is settled law that amendment of a plaint can be made at any stage of a suit [Harcharan v. State of Haryana, (1982) 3 SCC 408 (two-Judge Bench)], even at the second appellate stage [Rajendra Prasad v. Kayastha Pathshala, 1981 Supp SCC 56 (1) (two-Judge Bench)]."

29. It is further seen that prayer sought by plaintiff in

Cross-Appeal was only for dismissal of appeal filed by

defendants. There was no specific prayer for reversing finding

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of trial Court insofar as possession and relief of permanent

injunction. In any case, said contention would pale into

insignificance in view of above legal position.

30. Reliance sought to be placed on observations in

Arulmigu Velukkai's case (supra) though elucidating legal

principle would not avail much to plaintiff in instant case, as

plaintiff's suit for declaration of title without consequential