Madhya Pradesh High Court

Anand Kumar Jain vs Madhu Jain on 11 May, 2023

Author: Dwarka Dhish Bansal

IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR

BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

ON THE 11th OF MAY, 2023

CIVIL REVISION No. 578 of 2022

BETWEEN:-

ANAND KUMAR JAIN S/O LATE NARENDRA KUMAR
JAIN, AGED ABOUT 37 YEARS, R/O FLAT NO. 6
SECOND FLOOR VIDYA SAGAR COMPLEX TILAK
BHOOMI TALIYA ANDHERDEO JABALPUR
(MADHYA PRADESH)

.....APPLICANT

(BY SHRI A.K. JAIN-ADVOCATE)

AND

1. MADHU JAIN W/O SHRI SUDHIR JAIN,
AGED ABOUT 40 YEARS, H.N. 140 STATE
BANK COLONY SINGLE STORY CHERITAL
WARD JABALPUR (MADHYA PRADESH)

2. SMT. RAJKUMARI JAIN W/O LATE
NARENDRA KUMAR JAIN, AGED ABOUT 37
YEARS, FLAT NO. 6 SECOND FLOOR
VIDYA SAGAR COMPLEX TILAK BHOOMI
TALIYA ANDHERDEO (MADHYA PRADESH)
2

3. SMT. MANJU JAIN W/O LATE MRIDUL
KUMAR JAIN, AGED ABOUT 57 YEARS,
MADHULIKA ENTERPRISE NEAR SHRE
TALKIES GOTIYA (MAHARASHTRA)

4. SMT. SHOBHA JAIN W/O SANJAY KUMAR
JAIN, AGED ABOUT 48 YEARS, 757 NEXT
TO MAHARISHI SCHOOL NAPIER TOWN
(MADHYA PRADESH)

5. SMT. SARIKA JAIN W/O SUDHIR KUMAR
GOYAL, AGED ABOUT 45 YEARS, ASHOK
COMPLEX FLAT NO. 311 NEAR APSARA
TALKIES (MADHYA PRADESH)

6. SMT. SONIYA JAIN W/O ANAND KUMAR
JAIN, AGED ABOUT 35 YEARS, FLAT NO. 6
SECOND FLOOR VIDYA SAGAR COMPLEX
TILAK BHOOMI TALIYA ANDHERDEO
(MADHYA PRADESH)

7. STATE OF M.P. THROUGH COLLECTOR
DISTT. JABALPUR (MADHYA PRADESH)

.....RESPONDENTS

(NONE)
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This revision coming on for admission this day, the Court passed
the following:

ORDER

This civil revision has been preferred by the petitioner/defendant 1

challenging the order dated 15.01.2020 (Annexure P/4) passed by 15 th Civil

Judge Class-I, Jabalpur in civil suit No.301-A/17, whereby learned court

below has dismissed the defendant 1's application under Order 7 Rule 11

CPC.

2. Learned counsel for the petitioner submits that despite the fact that

plaintiff is out of possession and is in a position to seek the relief of

possession and partition, has filed the suit simplicitor for declaration of her

1/6th share and permanent injunction. As such he submits that the suit as

filed is not maintainable in the light of section 34 of the Specific Relief Act.

He further submits that the plaintiff without any basis, has valued the suit for

Rs.50 lacs and has paid fixed court fees, which cannot be said to be proper.

3. Heard learned counsel for the petitioner and perused the record.

4. From perusal of the plaint it is clear that the plaintiff has filed the suit

claiming her 1/6th share in the house property, as well as for permanent

injunction valuing the suit for declaration at Rs.50 Lacs and for permanent

injunction the suit has been valued at Rs.1,000/-. For declaration the plaintiff

has paid fixed court fees of Rs.1,000/- and on the valuation of permanent

injunction the court fees of Rs.120/- has been paid.

5. In the case of Akkamma and Ors. vs. Vemavathi and Ors. (2022) 2

Supreme 7 = (2021) 14 SCALE 293 the Supreme Court has held as under :

"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 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 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 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 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.

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 non-executable 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."

6. Further in the case of Jamna Devi vs. Rajendra Prasad Ji ILR 2013 MP

1004, co-ordinate Bench of this court has held as under :

"7. So far the question raised by the respondent's counsel that in view of the proviso of section 34 of the Specific Relief Act in the absence of the consequential relief of separate possession, the impugned suit could not be entertained and adjudicated by the trial court as such the same could neither entertained nor decreed.

8. In the available scenario of the matter, such argument has not appealed me because as per the settled position, the person like the petitioner could not be insisted to file the suit for separate possession if she wants to keep the disputed property in joint ownership to maintain the unity of the family and on arising the occasion, subject to decree of the impugned suit for which the same has been filed, the petitioner may file the separate suit for possession of her share after declaring her rights in the present suit. So, in such premises, it is held that even in the absence of prayer for partition and separate possession of the disputed property, the suit could be entertained and adjudicated in accordance with the procedure prescribed under the law. So, in such premises, the findings of the trial court holding that the impugned suit in the lack of consequential available relief of partition and separate possession, is not entertainable or the decree which may be passed in the suit could not be executed, is hereby set aside."

7. In the light of said decisions in the case of Akkamma and Ors (supra)

and Jamna Devi (supra) and in view of the fact that the plaintiff has filed the

suit for declaration of 1/6th share and for permanent injunction, at the present

stage of suit, it cannot be said to be not maintainable in view of section 34 of

the Specific Relief Act, 1963.

8. As regards the objection in respect of the valuation and payment of

court fees, the plaintiff has valued the suit for declaration at Rs.50 lacs, on

which fixed court fees has been paid and for the purpose of permanent

injunction, the plaintiff has valued the suit for Rs.1,000/- and paid court fees

of Rs.120/-, which cannot be said to be improper at the present stage of the

suit. However, the defendant is free to take objections at the appropriate stage

of the suit in respect of the maintainability and over or under valuation of the