(PER: THE HON'BLE MR. JUSTICE C M JOSHI)
Judge (Sr. Dn.) and J.M.F.C., Saundatti which came to be
therefore, the defendants are before this Court in Second Appeal.
2. The factual matrix of the case that is relevant for the
3. Pursuant to the summons, the defendants appeared
and filed their written statement. While the defendants admitted
possession. However they admitted that block No.218 was
granted by the Land Tribunal. They contended that they are in
the occupancy price in respect of Block No.218. It is contended
transferred to the defendants. It was the genitive father of
mutation entries on 08.06.1978. They also contended that they
4. On the basis of the above pleadings, the trial Court
3. Whether the plaintiff proves that he never
relinquished any right, title or interest over the
suit properties in favour of his genetive father
and the defendants?
NC: 2025:KHC-D:14590
HC-KAR
4. Whether the plaintiff proves his possession
over the suit property as, on the date of the
suit?
5. Whether the suit is barred by limitation?
6. Whether the suit is not promerly va lued and
court see para is not proper?
7. Whether the defts prove that in the family
arrangements effected in the year 1978
between their father and plff. the suit lands
were transferred to them? In the alternative,
defendants prove that they have perfected title
over the suit properties by way of adverse
possession?
8. Whether the plaintiff is entitled to the relief of
declaration as claimed in the suit?
9. Whether the plaintiff is entitled to the relief of
injunction as claimed in the suit?
10. Whether the plaintiff is entitled to the
relief of mandatory injunction as claimed in
the suit?
11. What order or decree?"
5. After the trial, the Trial Court dismissed the said suit
by answering the issues framed in favour of the defendants.
6. Being aggrieved, the plaintiff approached the First
Appellate Court, which framed the following points for its
consideration:
- 10 -
NC: 2025:KHC-D:14590
HC-KAR
1. Whether the plaintiff proves that suit schedule
properties are his self acquired properties?
2. Whether the defendants prove that they
acquired title in the suit schedule property by
virtue of alleged family arrangement in the year
1978?
3. Whether the Court below was justified in
dismissing the suit even after answering issue
No.1 to 3 in favour of the plaintiff?
4. Whether the judgment of the Court below calls
for any interference by this Court?
5. What order?
7. By answering the point Nos.1 and 4 in the
Affirmative and point Nos.2 and 3 in the Negative, it allowed
the appeal and decreed the suit. It also directed the defendants
to handover the possession of suit schedule property to plaintiff.
8. Being aggrieved, the defendants are in appeal before
this Court.
9. While admitting this appeal, this Court has framed
following substantial question of law on 22.04.2014.
- 11 -
NC: 2025:KHC-D:14590
HC-KAR
1) Whether the first appellate Court has committed a
serious error in upturning the well considered
judgment contrary to the material evidence placed
on record and thus judgment of the first appellate
Court has become perverse and illegal?
10. During pendency of this appeal, respondent No.1(a)
died and his legal heirs are brought on record.
11. Similarly, appellant No.1 died and his legal heirs were
brought on record and appellant No.2 also died whose legal heirs
were already on record.
12. The learned counsel appearing for the appellants
submits that the First Appellate Court erred in holding that the
provisions of Section 34 of Specific Relief Act, 1963 are not
applicable. He submits that the First Appellate Court has failed to
appreciate the oral and the documentary evidence adduced by
the parties. He submits that the approach of the First Appellate
Court to the case on hand is erroneous and it has resulted in
miscarriage of justice. He submits that if the plaintiffs had been
in possession, then the suit for mere declaration would not be
maintainable and the legal corollary would be that if the plaintiff
- 12 -
NC: 2025:KHC-D:14590
HC-KAR
is not in possession, the suit for mere declaration would not be
maintainable. Therefore, he submits that the First Appellate
Court without looking into the legal status and without
application of mind has reversed the finding of the Trial Court
and as such the impugned judgment is unsustainable in law. In
support of his contention, he relies upon the judgment of the
Hon'ble Apex Court in the case of Vasantha (dead) Thr.LR vs.
Rajalakshmi @ Rajam (dead) Thr.Lrs.1. He also relies on the
judgment of this Court in the case of Somayya Belchada vs.
Santhosh and others2. Basing his contentions on these two
judgments, it is submitted that the First Appellate Court erred in
reversing the judgment of the Trial Court, which had rightly
dismissed the suit of the plaintiff.
13. Per contra, learned counsel appearing for the
respondents would submit that the plaintiff had prayed for
consequential relief of injunction. He submits that it is not the
case of the plaintiff that he had prayed for the declaration alone.
Secondly, he points out that the plaintiff had filed an application
under Order VI Rule 17 of CPC for amendment of the plaint while
(2024) 5 SCC 282
2025 SCC OnLine KAR 1124
- 13 -
NC: 2025:KHC-D:14590
HC-KAR
the trial was in progress as it was disclosed that the defendants
are in possession of the property. Such application for
amendment was dismissed by the Trial Court and later the same
was questioned by the appellant before this Court in WP No.
40181/2002 which also came to be dismissed by order dated
04.06.2003. Therefore, the plaintiff had made his effort to pray
for an appropriate relief but the same was rejected at the
instance of the appellant. It is further contented that had the
application for amendment of the plaint was allowed, the
provisions of Section 34 of the Specific Relief Act would not have
been applicable. In support of his contention, he places reliance
on the judgment of the Apex Court in the case of Gian Kaur vs.
Raghubir Singh3, Venkataraja and others vs. Vidyane
Doureradjaperumal (D) Thr.Lrs. and others4, Corporation
of the City of Bangalore vs. M. Papaiah and another5 and
lastly the judgment in the case of Akkamma and others vs.
Vemavathi and others6. He further argued that in law, the
possession follows title as held by the Apex Court in the case of
(2011) 4 SCC 567
(2014) 14 SCC 502
1989 3 SCC 612
(2021) 18 SCC 371
- 14 -
NC: 2025:KHC-D:14590
HC-KAR
L.N. Ashwathama and another vs. P. Prakash7 and Shivaji
T. Sonavale vs. Parvathibai B. Pawar8 rendered by this
Court.
14. It is an admitted fact that the plaintiff was given in
adoption during his childhood to Chilamur family and thereafter,
he had acquired the suit schedule properties independently while
he was in adopted family. The fact that the plaintiff had
purchased one of the suit schedule properties in the year 1966
(though it was wrongly pleaded in the plaint that it was
purchased in 1964) and another property was granted to him by
the Land Tribunal as he established that he was the tenant, the
error in the plaint that the property was purchased in the year
1964 was sought to be rectified by way of an amendment and
the said application was dismissed. In the said application itself,
the plaintiff had sought for amendment of the prayer column of
the plaint by incorporating an alternative prayer that if he is
found to be not in possession of the property, he may be granted
the relief of possession. The perusal of the records would reveal
that the application (I.A.No.VII) filed by the plaintiff was
(2009) 13 SCC 229
2007 SCC OnLine KAR 113
- 15 -
NC: 2025:KHC-D:14590
HC-KAR
dismissed by order dated 26.09.2002. The Trial Court had held
that the trial had already begun and therefore, the application
would not be maintainable. The records also revealed that the
plaintiff had approached this Court in writ petition
No.40181/2002 and it was also dismissed by this Court. It is
relevant to note that while dismissing the writ petition, this Court
had observed that in exercise of writ jurisdiction and particularly
under Article 226 of the Constitution of India, Court will not
interfere with such an order until and unless the order has
resulted in a gross miscarriage of justice or one with errors
appearing on the face of record.
15. These facts are not in dispute between the parties,
which are as borne out from the records.
16. It is pertinent to note that the First Appellate Court
has observed that when the plaintiff was given in adoption during
his childhood and he had acquired the property in the adopted
family, the question of a family settlement between the adoptive
family of the plaintiff and his genitive family would not arise.
Therefore, it was held that the transfer of the property by way of
mutation entry in favour of the defendants does not transfer the
- 16 -
NC: 2025:KHC-D:14590
HC-KAR
title. It also observed that at no point of time, the plaintiff had
relinquished his rights over the suit schedule property in favour
of the defendants under any of the modes known to law. It is
worth to note that, when the plaintiff was not at all the member
of his genitive family, the grant being in his adoptive name, such
purchase by plaintiff or grant in favour of the plaintiff would not
in any way enure to the benefit of the genitive family. This
observation cannot be interfered with as the adoption is an
admitted fact. It is also settled position of law that mutation
entry of a property in revenue record does not create or
extinguish title nor it has any presumptive value on title. In this
regard, the First Appellate Court has placed reliance on a catena
of decisions which has got approval of the Hon'ble Apex Court in
several decisions.
17. The next aspect to be considered by this Court is
whether the provisions of Section 34 of the Specific Relief Act
create any bar in maintainability of the suit. The provisions of
Section 34 of the Act read as below:
"34. Discretion of court as to declaration of status
or right. -- Any person entitled to any legal character,
- 17 -
NC: 2025:KHC-D:14590
HC-KAR
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."
18. It is pertinent to note that the proviso to Section 34
says that, when such a declaration alone is sought and the
plaintiff being able to seek further relief than a mere declaration
of title, no Court shall make such a declaration. The judgment of
the Hon'be Apex Court in the case of Vasantha (dead) Thr.LR
vs. Rajalakshmi @ Rajam (dead) Thr.Lrs. referred (supra),
while considering issue No.2, notices various decisions in this
regard and comes to the conclusion as below:
"33. 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. Plaintiff himself has
- 18 -
NC: 2025:KHC-D:14590
HC-KAR
stated that defendant no. 1 was in possession of the
subject property and had sought to transfer possession
of the same to defendant no.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, even at the second appellate stage."
19. It is worth to note while coming to such conclusion, it
refers to the judgment in the case of Akkamma and others vs.
Vemavathi and others referred (supra). It is pertinent to note
that it was a case wherein the plaintiff was aware that the
appellant therein was in possession of the suit property and
therefore, it was observed that it was incumbent upon the
plaintiff to seek the relief which follows the declaration. It is not
known, whether any consequential relief of injunction was
prayed or not.
20. The second judgment relied by the learned counsel
for the appellant in the case of Somayya Belchada vs.
- 19 -
NC: 2025:KHC-D:14590
HC-KAR
Santhosh and others (supra) was rendered by a co-ordinate
bench of this Court wherein it referred to the judgment of
Vasantha (dead) Thr.LR vs. Rajalakshmi @ Rajam (dead)
Thr.Lrs. referred (supra) and then came to the conclusion that
when the Hon'ble Apex Court is 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, a suit for
declaration simpliciter is not maintainable.
21. The judgment of the Hon'ble Apex Court in the case
of Gian Kaur vs. Raghubir Singh (Supra), it was noticed that
apart from making a prayer for declaration, there is also a
consequential prayer for decree of permanent injunction and in
such case, the proviso to Section 34 is inapplicable. The
judgment of the Hon'ble Apex Court in the case of Akkamma
and others vs. Vemavathi and others referred (supra) also
had an occasion to deal with the matter when the prayer of
injunction was sought along with the declaration of title, but it
was found that the plaintiff was not in possession and therefore,
it came to the conclusion that a decree for declaration could be
granted in favour of the plaintiff. It is relevant to note the
- 20 -
NC: 2025:KHC-D:14590
HC-KAR
observations of this Court as stated in paragraph 15 and 16 of
the Judgment which reads as below:
"15. We agree with that part of the decision of
the High Court in which it has been held that
possession of the suit property was not
established by the plaintiffs and hence injunctive
relief could not be granted. As we have already
recorded, we are also in agreement with the
High Court's reasoning for rejecting the plea for
amendment. But we do not agree fully with the
entire reasoning of the High Court for dismissal of
the appeal as spelt out in the said judgment. The
bar contained in proviso to Section 34 of the
1963 Act, in our opinion, could not be applied in
the case of the plaintiffs as consequential relief
for injunction from interference with the suit-land
was claimed. The prohibition contained in the
proviso to Section 34 would operate only if the
sole relief is for declaration without any
consequential relief. In the plaint of the 1987
suit, relief for injunction was asked for. Such
dual relief would protect the suit from being
dismissed on maintainability ground. It is a fact
that the plaintiff ought to have had asked for
recovery of possession, given the factual
background of this case, but the plaint as it
was originally framed reflected that the
- 21 -
NC: 2025:KHC-D:14590
HC-KAR
original plaintiff was in possession of the suit
land. Such plea rightly failed before the Trial
Court and the First Appellate Court.
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:-
"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
- 22 -
NC: 2025:KHC-D:14590
HC-KAR
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".
(emphasis supplied)
22. From perusal of the above judgments, it is clear that
the proviso to Section 34 of the Specific Relief Act will apply only
when a declaration of title simpliciter is sought. When such
declaration alone is sought, despite the plaintiff proving his title,
the suit cannot be decreed if the consequential relief is not
sought for. If a consequential relief of injunction had been sought
but during the trial it came to light that the plaintiff was not in
possession of the property, then without an amendment being
brought to the plaint seeking the relief of possession, the relief of
- 23 -
NC: 2025:KHC-D:14590
HC-KAR
declaration and possession cannot be granted. However, there
being a consequential relief of injunction having been sought in
the plaint, it would insulate the plaintiff from being non-suited
and He would be entitled for the relief of declaration only. This
position of law as observed by the Hon'ble Apex Court in the
case of Akkamma and others vs. Vemavathi and others
referred (supra) would aptly be applicable to the case on hand.
23. A perusal of the records as noted supra would show
that the plaintiff had made his effort to seek consequential relief
of possession. Such an effort was thwarted by the defendants
and with some reservation, this Court had upheld the rejection of
such interim application for amendment of the plaint.
24. The First Appellate Court in the impugned judgment
while deciding point No.3, observes that the suit was filed for
declaration and consequential relief of injunction. But since the
defendants disputed the possession over the suit property during
the course of trial, the plaintiff's application having been filed
,came to be rejected and therefore, if there was no rejection of
the application under Order VI Rule 17 Of CPC, it would have
enured for the benefit of the plaintiff. It also notes the
- 24 -
NC: 2025:KHC-D:14590
HC-KAR
observation made by this Court in the order made in WP
No.40181/2002. It observes that to prevent the multiplicity of
the proceedings, the plaintiff is entitled for the relief. It also
notices that in one of the judgments of this Court, it was
observed that in a suit for declaration and injunction, filed
against alleging encroachment, the Court granted a decree for
possession and it was held that the Courts have power to grant
such relief notwithstanding absence of pleadings. It is settled
proposition of law that the relief can be moulded, if the plaintiff
was unjustifiably denied of his right in claiming such relief. In the
case on hand, the plaintiff has made his effort to incorporate the
prayer for the relief of possession and such prayer was rejected.
Therefore, by way of moulding the relief, definitely the First
Appellate Court has held that the plaintiff is entitled for the
possession. In that view of the matter, The position of law
having clarified by the judgment of the Hon'ble Apex Court in the
case of Akkamma and others vs. Vemavathi and others
referred (supra), which is applicable to the case on hand on all
its fours, this Court finds no merit in this appeal. Consequently,
the substantial question of law raised by this Court is answered
in negative. In the result, the following order is passed:
- 25 -
NC: 2025:KHC-D:14590
HC-KAR
ORDER
(i) The appeal is dismissed with costs.
(ii) In view of the disposal of the appeal, pending
interlocutory applications, if any, do not
survive for consideration and are disposed of
accordingly.
SD/-
(C M JOSHI)
JUDGE
SSP
Ct:pa
