High Court
Case Details
RSA 33/2003 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (ORAL) This appeal by the defendants is directed against the judgment and decree dated 3.7.2002 passed by the learned Civil Judge, (Sr Div) No. 1, Kamrup at Guwahati i n Title Appeal No. 56/1996 dismissing the appeal preferred by the defendants by affirming the judgment and decree dated 31.8.1996 passed by the learned Sadar M unsiff No. 1, Kamrup at Guwahati in Title Suit No. 285/1987, whereby and whereun der the suit of the plaintiffs has been decreed.
Legal Reasoning
2. The predecessor-in-interest of the present respondents namely, B ijoy Kr. Ganguly, as plaintiff instituted the aforesaid suit for declaration of right, title and interest over the land described in the schedule to the plaint, contending inter alia that the land measuring 18 bighas 3 kathas 2 lechas cover ed by KP patta No. 217 and 589 comprising various dags, originally belonging to one Bikalal, after whose death it devolved on his three sons Shew Narayan Chetri , Lakhi Narayan Chetri and Narayan Chetri, each of whom got 6 bighas 1 kathas 2- 2/3 lechas of land. It has further been pleaded that Shew Narayan Chetri out of his share of land sold 5 bighas 4 kathas 9-2/3 lechas by registered instrument dated 5.4.1950 (Ext. Gha) in favour of Kailash Sengupta and Snehamoyee Mitra. Ac cording to the plaintiff there was partition of the land between Kailash Sengupt a and Snehamoyee Mitra in equal proportion and Kailash Sengupta out of his land fell in his share sold 1 kathas 14 lechas vide registered sale deed dated 10.4.1 981 (Ext. 1) in favour of the original plaintiff namely Bijoy Kr. Ganguly. It is also the pleaded case of the plaintiff that he is possessing the land having re sidential houses and since the defendants without having any right, title and in terest over the suit land tried to mutate their names, he has filed the suit for declaration as aforesaid. It was also pleaded in the plaint that Kailash Sengup ta before transferring the land instituted a suit being Title Suit No. 24/1967 a nd obtained a decree on 18.9.1967 (Ext. 3) against Bijoy Kumar Ganguly namely th e plaintiff and Snehamoyee Mitra, as defendant and proforma defendant, respectiv ely, claiming that the suit land belongs to Kailash Sengupta and in respect of w hich Bijoy Kr Ganguly, the plaintiff, was the tenant. According to the plaintiff after the decree was passed the land was sold by Kailash Sengupta vide sale dee d dated 10.4.1981. 3. The main defendants, mainly the present appellants, contested th e suit by filing written statement contending inter alia that the defendant No. 1 purchased 1 katha 17 lechas of land by registered sale deed dated 15.7.1982 (E xt. Kha) from Snehamoyee Mitra who along with Kailash Sengupta purchased from th e original owner Shew Narayan Chetri. According to the defendants the suit land forms part of the land purchased by the defendant No. 1 by the aforesaid sale de ed dated 15.7.1987 (Ext. Kha) and by virtue of such purchase the mutation has be en granted as they were found to be in possession. The claim of the plaintiff th at he is in possession has also been denied in the written statement filed. The defendant also raised the question of maintainability of the suit under Section 34 of the Specific Relief Act. 4. Based on the pleadings of the parties the trial court framed the following issues for determination: - (cid:28)1. Whether the suit is maintainable? 2. Whether the suit is bad for non-joinder of necessary parties? 3. Whether there is cause of action for the suit? 4. Whether the suit has been properly valued and proper court fee has be en paid thereon? 5. Whether the plaintiff has right, title, interest and possession over the suit land? 6. Whether the plaintiff is entitled to declare as prayed for? 7. To what relief the parties may be entitled? (cid:29) 5. The trial court on the basis of the evidence, both oral and docu mentary, decreed the suit of the plaintiff declaring the right, title and intere st. The appeal preferred by the defendants has also been dismissed by the first appellate court. Hence the present appeal. 6. The original plaintiff Bijoy Kr. Ganguly, during pendency of the second appeal died and in his place the legal heirs, namely, the present respon dents have been substituted. 7. The appeal was admitted for hearing vide order dated 8.4.2003 on the following substantial questions of law: - 1. Whether the suit for declaration of title without praying for partiti on of the land is maintainable in law? 2. Whether the learned lower appellate court erred in law in holding tha t the suit is maintainable and not barred under section 34 of the Specific Relie f Act?
Legal Reasoning
8. I have heard Mr. D Das, learned senior counsel for the appellant s and Mr. BR Dey, learned senior counsel appearing for the respondent Nos. 1(a) to 1(c). The names of respondent Nos. 2 to 8 were struck off from the list of re spondents on the prayer made by the appellant vide order dated 31.1.2005. 9. The learned senior counsel appearing for the appellants has subm itted that though two substantial questions of law were formulated while admitti ng the appeal, the substantial question of law No. 2 i.e. whether the suit of th e plaintiff is not maintainable being barred under Section 34 of the Specific Re lief Act exist in the present appeal and hence the argument is confined to the s aid substantial question of law only. 10. Referring to the prayer made in the plaint, the learned senior c ounsel for the appellant has submitted that since the plaintiff has claimed decl aration of right, title and interest without praying for consequential relief, i .e. either confirmation of possession or recovery of khas possession, suit of th e plaintiff is barred under Section 34 of the Specific Relief Act. The learned s enior counsel submits that though the plaintiff in the plaint has claimed that h e is in possession of the suit property, it is evident from the evidence of defe ndants’ witnesses more particularly DW 2 as well as the report of the Amin Commi ssioner dated 8.2.1990 and the evidence of the Amin Commissioner, who has been e xamined as court witness, that the plaintiff is not in possession of the entire suit land but part of the suit land measuring more or less 15 lechas and hence t he suit of the plaintiff, in absence of the prayer for confirmation of possessio n or recovery of possession, is not maintainable. The learned senior counsel fur ther submits that in fact the land is in possession of the defendants which is e vident from the order of mutation granted by the Revenue authority, which has be en proved as Ext Jha, as the grant of mutation presupposes the possession of the party in whose favour the mutation is granted, though it may not confer right, title and interest. The learned senior counsel in support of his submission has placed reliance on the decision of the Apex Court in Vinay Krishna vs. Keshav Ch andra and anr. reported in AIR 1993 SC 957 and in Dulana Dei alias Dolena Dei vs . Balaram Sahu ors reported in AIR 1993 Orissa 59. 11. Mr. Dey, learned senior counsel appearing for the respondents/pl aintiffs on the other hand supporting the judgment and decree passed by the lear ned courts below has submitted that when the plaintiff is in possession of the s uit land it is not required to pray for consequential relief of confirmation of possession, while praying for a decree declaring the right, title and interest a nd hence the suit of the plaintiff is not hit by Section 34 of the Specific Reli ef Act. The learned senior counsel further submits that both the courts recorded the finding that the plaintiff is in possession of the suit land. Referring to the Amin Commission’s report dated 8.2.1996 as well as the evidence of the court witness i.e. the Amin Commissioner, it has also been submitted that it is appar ent therefrom that the plaintiff is in possession of the land including the land which is found to be vacant. The learned senior counsel, therefore, submits tha t the substantial questions of law as formulated do not exist in the case. 12. The plaintiff in the plaint has made categorical assertion that he is in possession of the land measuring 1 katha 14 lechas which, however, has been denied in the written statement filed by the defendants contending that the plaintiff never possessed the suit land. The plaintiff though has claimed decla ration of right, title and interest over the suit land no prayer for passing a d ecree either for confirmation of possession or recovery of khas possession has b een made. 13 Section 34 of the Specific Relief Act provides that any person e ntitled to any legal character, or to any right as to any property, may institut e a suit against any person denying or interested to deny, his title to such cha racter or right, and the Court may in its discretion made therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any furt her relief. The court, however, shall not make any such declaration where the pl aintiff, being able to seek further relief than a mere declaration of title, omi ts to do so. Hence the plaintiff, when he claims to be in possession of the s uit property, can maintain a suit for declaration of right, title and interest w ithout asking for confirmation of possession, he being already in possession. Bu t while doing so the plaintiff is taking the risk of dismissal of the suit, in v iew of the proviso to Section 34 of the Act, in the event, on the basis of the e vidence adduced by the parties it is found that he is not in possession of the s uit property and in that case, he will not be entitled to the declaration of tit le without claim of further relief of recovery khas possession. In the instant case, the plaintiff has claimed that he is in pos 14. session, which, as discussed above, has been denied by the defendant. Both the c ourts below have recorded the finding that the plaintiff is in possession. To as certain the dispute relating to the possession, the trial court in fact has pass ed the order for local inspection and accordingly the Circle Officer was appoint ed as Amin Commissioner who submitted his report dated 8.2.1990, which has been marked as Ext. X. The deposition of the Amin Commissioner was also recorded by t he trial court as court’s witness. It appears from the report of the Amin Commissioner that the sui 15. t land has houses which are in possession of the plaintiff and the remaining lan d is vacant. The Amin Commissioner in his evidence has also stated that the vaca nt land has been used by the plaintiff and his tenant. 16. From the aforesaid evidence as well as the Amin Commissioner’s r eport it, therefore, appears that the part of the suit land though was vacant, t he entire suit land was in possession of the plaintiff. The grant of mutation in favour of the defendant, which according to the learned senior counsel presuppo ses the possession of the defendant, therefore, would have no bearing on the fin ding relating to possession. There is no dispute to the proposition of law laid down in Dulan 17. a Dei alias Dolema Dei by the Orissa High Court that even in the absence of the pleadings in the written statement, relating to the maintainability of the suit on the ground of not seeking the consequential relief as required under Section 34 of the Specific Relief Act, the court can go into the said question. It has a lso been held that if the plaintiff is able to seek consequential relief of conf irmation or recovery of possession or permanent injunction and such relief is no t prayed, the suit is hit by Section 34 of the aforesaid Act. But, as discussed above, if the plaintiff claims to be in possession and his possession is found b y the court, his suit for declaration of right, title and interest cannot be dis missed for not claiming a decree confirming his possession. 18. The Apex Court in Vinay Krishna (supra) has held that if the pla intiff instituted the suit for declaration without praying for consequential rel ief of confirmation of possession contending that he in possession, he is taking a risk of dismissal of his suit, if it is found that he is not in possession of the suit property, as the suit would then be hit by Section 34 of the said Reli ef Act because of non seeking the consequential relief. As discussed above, in the instant case there is concurrent find 19. ing of fact relating to the possession of the plaintiff. The Amin Commissioner’s Report as well as the evidence adduced by the Amin Commissioner also support su ch finding recorded by the courts below relating to the possession of the plaint iff over the suit land. 20. That being the position, the plaintiff can maintains the suit fo r declaration of right, title and interest without praying for confirmation of p ossession or recovery of khas possession. The courts below have rightly passed t he judgments and decrees which do not require any interference in appeal. Hence the same is dismissed. 21. 22. The parties are directed to bear their own cost throughout. The Registry is directed to send down the records forthwith.