MANU/SC/0147/2017

Equivalent Citation: AIR2017SC 1034, 2017(2)AJR353, 2017(3)ALD37, 2017 (122) ALR 46, 2017(2)C DR244(SC ), 2017(2) C HN (SC ) 1,
2017(3)C LJ(SC )89, 123(2017)C LT833, 2017(2)C TC 678, 2017(2)J.L.J.R.22, 2017-1-LW856, 2017(4)MhLj809, (2017)2MLJ404, 2017(3)MPLJ303,
2017(2)PLJR114, 2017(2)RC R(C ivil)1, 2017 135 RD811, 2017(2)SC ALE747, (2017)3SC C 702, 2017 (10) SC J 297, 2017 (2) SC J 575, 2017 (1)
WLN 118 (SC )

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2342 of 2017 (Arising out of SLP (C) No. 21587 of 2014)
Decided On: 10.02.2017
Appellants: Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust
Virudhunagar
Vs.
Respondent: Chandran and Ors.
Hon'ble Judges/Coram:
Ranjan Gogoi and Ashok Bhushan, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: A.T.M. Sampath, V. Balaji, Asai Thambi and Rakesh
K. Sharma, Advs.
For Respondents/Defendant: M. Yogesh Kanna, Nithya, T. Harish Kumar, C. Nagamani
and P. Balaji, Advs.
Case Category:
RELIGIOUS AND CHARITABLE ENDOWMENTS
Case Note:
Civil - Title and possession - Maintainability of suit - Respondent No.
1/Plaintiff filed suit for relief of declaration and mandatory injunction -
Both Trial Court and Appellate Court dismissed suit - However, High Court
reversed judgment of Trial Court and First Appellate Court and decreed suit
of Plaintiff - Hence, present appeal by Appellant/Defendant No. 1 - Whether
Plaintiff failed to proof his title and possession
Facts:
The Respondent No. 1/Plaintiff filed suit for the relief of declaration and
mandatory injunction. Plaintiff's case in the plaint was that by Sale Deed,
he purchased an area of 2 acres and 73 cents being part of Survey No. 188.
The entire Plot No. 188 was recorded in the name of Defendant No. 1.
Mandatory injunction was prayed to be issued, directing the Defendant Nos.
4 and 5 to correct the revenue records by entering the name of Plaintiff in
the suit property. The Plaintiff's case was that the suit property belonged to
one person who vide earlier Sale Deed transferred 2 acres 72 cents area
being part of Survey No. 188 in favour of one person who executed a
General Power of Attorney in favour of one last seller and it was that seller
who executed the Sale Deed in favour of the Plaintiff. The Trial Court held
that Survey No. 188 had been sub-divided into Survey No. 188/1, 188/2
and 188/3. The Trial Court further held that there was no explanation
submitted by the Plaintiff that how he had got amended the Survey No.
188/3 in the original suit and the description of the suit property was not
correct. The suit was also hit by non-joinder of a necessary party.

09-12-2019 (Page 1 of 10) www.manupatra.com Jishnu Saha

 The Plaintiff aggrieved by the judgment of the Trial Court filed an appeal.
The Appellate Court affirmed the findings recorded by the Trial Court that
Plaintiff was not the owner of the suit property. It was held that Plaintiff
was not entitled for declaration and mandatory injunction.
A second appeal was filed by the Plaintiff in the High Court. The High Court
allowed the second appeal by setting aside the decrees of the Trial Court
and Appellate Court respectively. The High Court although, set aside the
decree of Courts below and decreed the suit but directed the Defendant
Nos. 4 and 5 to include the name of the Plaintiff after excluding the extent
of property which stood in the name of the first Defendant. The High Court
in its judgment did not disturb the findings of the Courts below that
Defendant No. 1/Temple was the owner of 188/1 and 188/3. The High
Court held that total area of 188 being 7 acres and 84 cents, Plaintiff was
entitled for the remaining extent of plot No. 188. Aggrieved by the
judgment of the High Court, the present appeal was filed by the Defendant
No. 1.
Held, while allowing the appeal:
(i) The deeds on which the reliance was placed by the Plaintiff i.e. Sale
Deed, by which alleged erstwhile owner was said to have transferred the
property in favour of the last seller as well as General Power of Attorney
and Sale Deed in the name of Plaintiff, the suit property was not described
by sub division rather it was mentioned as part of Plot No. 188. Although,
Plaintiff got his plaint amended by amending part of Plot No. 188 as Survey
No. 188/3 but Sale Deed being not for Survey No. 188/3, both the Trial
Court and the Appellate Court rightly concluded that the Plaintiff failed to
correctly describe the suit property and it could not be accepted that deeds
claimed by him referred to the suit property. The Trial Court after
considering the relevant document held that Plaintiff failed to prove his
title. [22] and[23]
(ii) There was categorical finding by Trial Court and First Appellate Court
that Defendant No. 1 was the owner of Survey No. 188/1 (2 acres and 2
cents) and 188/3 (2 acres and 88 cents). In the documentary evidence,
filed by the Defendant both these sub divisions were recorded as the
Temple property. In the property records maintained by the Hindu Religious
& Charitable Endowment Department also Survey Nos. 188/1 and 188/3
were recorded in the name of Temple. Extract of the property registered
was produced before the courts below which was believed. [24]
(iii) In view of the statement of the Plaintiff himself that Survey No. 188/2
was in the name of another alleged owner, the observations of the High
Court that no documentary evidence was filed for the purpose of
establishing that Survey No. 188/2 stood in the name of another alleged
owner were erroneous and mis-placed. One of the issues framed, as to
whether the suit was bad for non-joinder of necessary party. The said issue
was answered against the Plaintiff and it was held that suit was bad for
non-joinder of another alleged owner, a necessary party, whose name was
recorded against Survey No. 188/2. Without adverting to the said findings
of the Trial Court and the Appellate Court, the High Court erroneously
decreed the suit of the Plaintiff. [29] and[30]

09-12-2019 (Page 2 of 10) www.manupatra.com Jishnu Saha

 (iv) The Plaintiff having been found not to be in possession and having only
sought for declaratory reliefs, the suit was clearly not maintainable and has
rightly been dismissed by the Trial Court. The Plaintiff, who was not in
possession, had in the suit claimed only declaratory relief along with
mandatory injunction. Plaintiff being out of possession, the relief of
recovery of possession was a further relief which ought to have been
claimed by the Plaintiff. The suit filed by the Plaintiff for a mere declaration
without relief of recovery of possession was clearly not maintainable and
the trial court has rightly dismissed the suit. The High Court neither
adverted to the finding of the Trial Court nor set aside the reasoning given
by the Trial Court for holding the suit as not maintainable. The High Court
could not have reversed the decree of the Courts below without holding
that the reasoning given by them was legally unsustainable. The High Court
committed error in decreeing the suit. The judgment of the High Court was
set aside and those of Trial Court and the First Appellate Court were
restored. [35],[36] and[38]
JUDGMENT
Ashok Bhushan, J.
1. Leave granted
2 . The Defendant has filed this appeal against judgment of the Madurai Bench of
Madras High Court dated 22.01.2013, by which judgment the High Court while
reversing the judgment of trial court and First Appellate Court, has decreed the suit
of the Plaintiff.
3. The brief facts of the case are:
The Respondent No. 1, who shall be hereinafter referred to as Plaintiff, filed
Original Suit No. 33 of 2008 for the relief of declaration and mandatory
injunction. Plaintiff's case in the plaint was that by Sale Deed dated
04.11.2007, he has purchased an area of 2 acres and 73 cents being part of
Survey No. 188. The entire Plot No. 188 (area 7 acres and 84 cents) is
recorded in the name of Defendant No. 1. Mandatory injunction was prayed
to be issued, directing the Defendant Nos. 4 and 5 to correct the revenue
records by entering the name of Plaintiff in the suit property. The Plaintiff's
case was that the suit property belonged to one R. Padmanabhan who vide
Sale Deed dated 28th August, 1992 on his behalf and on behalf of his minor
sons transferred 2 acres 72 cents area being part of Survey No. 188 in favour
of one Sanjay Ramasamy, correspondent of Annai Velankanni Women
Teacher Training School. Sanjay Ramasamy executed a General Power of
Attorney in favour of one Bhaskaran on 31.10.2007 and it was Bhaskaran
who executed the Sale Deed dated 04.11.2007 in favour of the Plaintiff.
Plaintiff, further stated that when he went to Revenue Tehsildar for issuance
of patta in his favour, he came to know that it is in the name of first
Defendant. Consequently, the suit was filed, seeking declaration and
mandatory injunction.
4 . A written statement was filed by the first Defendant, controverting the plaint
allegation. It was pleaded that Plaintiff or his predecessors in interest were never the
owner of the suit property. The Defendant No. 1, hereinafter referred to as Temple,
has been the owner in possession of the suit property whose name is also recorded

09-12-2019 (Page 3 of 10) www.manupatra.com Jishnu Saha

 in the revenue records. It was pleaded that there is no such Survey No. as 188 in the
whole village. The only available Survey Nos. as per the revenue records are 188/1,
188/2 and 188/3. The first Defendant is entitled to the Survey No. 188/1 and 188/3,
which are in possession and continuous enjoyment of Temple from the time
immemorial. The property register of the Temple, which is maintained by Special
Tehsildar, Hindu Religious & Charitable Endowment Department, records the Temple
as the owner of the property. Survey No. 188/2 is in the possession and enjoyment
of one Janaki Ammal, who being not a party, the suit is not maintainable and it is
bad for mis-joinder and non-joinder of necessary party. The Defendants numbers 2
to 4 have adopted the written statement of Defendant No. 1.
5 . Plaintiff, initially in the plaint, had claimed for the reliefs of declaration and
mandatory injunction for an area 2 acres 73 cents as part of Survey No. 188.
Subsequently, the plaint was got amended by the Plaintiff, mentioning the suit
property as Survey No. 188/3. The Plaintiff in support of his case filed documentary
as well as oral evidences of PW 1 to PW 5. The Defendant in support of his case has
also filed documentary as well as oral evidences of DW 1, Senior Accountant in
Defendant's temple.
6. Trial court framed the following five issues:
1. Whether the Plaintiff is entitled for the relief of declaration as prayed for?
2. Whether the Plaintiff is entitled for mandatory injunction as prayed for?
3. Whether the suit is bad for non joinder of necessary party?
4. To any other relief?
Additional issue framed on 17.08.2010:
1. Whether this suit is maintainable?
7. Trial court, while answering the issue No. 1 to 4 and additional issue No. 1 held
that Survey No. 188 further has been sub-divided into Survey No. 188/1, 188/2 and
188/3. The trial court further held that there is no explanation submitted by the
Plaintiff that how he has got amended the Survey No. 188/3 in the original suit. It
held that the description of the suit property is not correct. It was also held that
name of Padmanabhan was never recorded in the revenue records. Patta was never
transferred in the name of Sanjay Ramasamy, who had no right to execute a General
Power of Attorney in favour of Bhaskaran. It was held that no document has been
produced to prove that Padmanabhan was in possession and enjoyment of the suit
property. None of those persons, who claimed to be vendors have been examined.
Finding was returned that the Survey No. 188 was never in the name of
Padmanabhan.
8 . It was held that suit property belonged to Temple, which is in possession for a
long time continuously. The trial court further recorded a finding that Plaintiff had
failed to prove, that property belonged to the Plaintiff and it is in possession hence
declaratory reliefs cannot be granted to the Plaintiff and thereby suit is not
maintainable.
9. Answering the issue No. 6, trial court held that PW 1, the Plaintiff having deposed
in his cross-examination, that survey No. 188/2 is in the name of Janaki Ammal and
she had sold the property to some other persons. The Janaki Ammal being necessary
party who has not been impleaded in the suit, the suit is hit by non-joinder of a

09-12-2019 (Page 4 of 10) www.manupatra.com Jishnu Saha

 necessary party.
10. The Plaintiff aggrieved by the judgment of the trial court filed an appeal. The
Appellate Court vide its judgment dated 31.10.2011 after reappraising the entire
evidence on the record affirmed the findings recorded by the trial court that Plaintiff
is not the owner of the suit property. The Appellate Court further held that on the
date when Plaintiff purchased the property in 2007, Survey No. 188 was already sub-
divided in 188/1, 188/2 and 188/3. The vendors of the Plaintiff did not have patta,
chitta and adangal of the suit property.
11. The Appellate Court held that Survey No. 188/1 and 188/3 belong to Temple and
survey No. 188/2 belongs to Janaki Ammal who having not impleaded, the suit is bad
for mis-joinder and non-joinder of necessary party. It was held that Plaintiff was not
entitled for declaration and mandatory injunction.
12. Aggrieved by the judgment of the Appellate Court, second appeal was filed by
the Plaintiff in the High Court. The High Court vide its judgment and order dated
22.01.2013, allowed the second appeal by setting aside the decrees of the trial court
and Appellate Court respectively. The High Court although, set aside the decree of
courts below and decreed the suit but directed the Defendant Nos. 4 and 5 to include
the name of the Plaintiff after excluding the extent of property which stands in the
name of the first Defendant.
13. The High Court in its judgment did not disturb the findings of the courts below
that Temple is the owner of 188/1 and 188/3 total area of 5 acres and 10 cents of
land. The High Court, however, held that total area of 188 being 7 acres and 84
cents, Plaintiff was entitled for the remaining extent of plot No. 188. Aggrieved by the
judgment of the High Court, this appeal has been filed by the Defendant No. 1.
14. Learned Counsel for the Appellant in support of appeal contends that the High
Court in exercise of jurisdiction Under Section 100 Code of Civil Procedure has
interfered with the concurrent findings of the facts, recorded by Courts below that the
Plaintiff has failed to proof his title and possession.
15. It is submitted that Plaintiff having himself admitted that Survey No. 188/2 stood
in the name of Janaki Ammal and Janaki Ammal without having been impleaded, the
suit of Plaintiff was correctly dismissed by two courts below on the grounds of mis-
joinder and non-joinder of necessary party. Further, the description of the property in
the plaint was incorrect and in-spite of the amendment of the plaint, no correction
having been made in the sale deed, Plaintiff could not have been given any right on
Survey No. 188/3.
16. The Plaintiff came with the case that Padmanabhan acquired the property through
inheritance, but in his deposition, it is stated that property was purchased by
Padmanabhan. The property being never in the name of Padmanabhan in the records,
there was no title vested in the Plaintiff. Defendant proved that Survey No. 188/1 and
188/3 having been in the name of Temple, no right could have been granted to the
Plaintiff.
1 7 . Learned Counsel for the Respondent/Plaintiff submitted that High Court has
rightly set aside the judgment and decrees of the two courts below. Plaintiff had
proved his title to the suit property by virtue of Sale Deed dated 29.07.1974
Annexure Rule 1, Sale Deed dated 28.08.1992 and Sale Deed dated 04.11.2007. It is
contended that title of Padmanabhan was fully proved by Sale Deed dated
29.07.1974, which was executed by one Rajakambalam Sundara Rajan with regard to
part of Survey No. 188 area 2.79 acres.

09-12-2019 (Page 5 of 10) www.manupatra.com Jishnu Saha

 18. We have considered the submission of the learned Counsel for the parties and
perused the record. The trial court after considering the both oral and documentary
evidence brought on record, dismissed the suit of the Plaintiff by recording following
findings:
(i) Plaintiff has failed to prove by producing any document to show that
Padmanabhan had any right and possession over the suit property.
(ii) Survey No. 188/1 and 188/3 are in the name of Defendant No. 1, the
Temple.
(iii) The suit property belonged to Defendant No. 1 and it is in possession for
a long time continuously.
(iv) Plaintiff in his suit has prayed for the reliefs of declaration without
seeking the relief for the possession hence the suit was not legally
maintainable.
(v) Plaintiff cannot be granted the decree of the declaration and mandatory
injunction.
(vi) Survey No. 188/2 being in the name of Janaki Ammal, she having not
been made party to the suit, suit was hit by the principle of non joinder of
the necessary party.
1 9 . The Appellate Court, after adverting to documentary and oral evidence has
confirmed the above findings. Appellate Court has also rejected the application filed
by the Plaintiff, for amending the plaint for incorporating new pleadings. Appellate
Court held that by amendment, Plaintiff intends to fill up the gap and wanted to
change the entire nature of the case, which cannot be permitted.
20. The Plaintiff came with the case in the suit that R. Padmanabhan was the owner
of the property, who transferred it to in favour of Sanjay Ramasamy on whose
General Power of Attorney Bhaskaran has transferred the property to the Plaintiff by
Sale Deed dated 04.11.2007. Trial Court has categorically recorded a finding that R.
Padmanabhan was never a recorded owner of the property and no patta was issued in
his favour.
21. The Plaintiff initially in the plaint has prayed for decree for an area of 2.73 acres,
as part of Survey No. 188. Sale Deed dated 04.11.2007 also mentions the suit
property as part of Survey No. 188. Plaintiff himself has examined PW 4, A.
Murugesan, Surveyor at Virudhunagar District, Collectorate Office. PW 4 in the
statement has stated that he has brought the village revenue records for the year
1983 with regard to Survey No. 188/1, 188/2 & 188/3. It is useful to extract the
statement of PW 4, which was to the following effect:
I received summons from this Hon'ble court to depose witness.
I brought Chinnamoopanpatti Village's revenue records for the year 1983
with regard to S. No. 188/1, 188/2 & 188/3. I am producing 1914
settlement.
22. From the above, it is clear that Sub Divisions 188/1, 188/2 & 188/3 were in
existence at least since before 1983. The deeds on which the reliance has been
placed by the Plaintiff i.e. Sale Deed dated 28.08.1992, by which Padmanabhan is
said to have transferred the property in favour of Sanjay Ramasamy as well as
General Power of Attorney dated 31.10.2007 and Sale Deed dated 04.11.2007 in the

09-12-2019 (Page 6 of 10) www.manupatra.com Jishnu Saha

 name of Plaintiff, the suit property is not described by sub division rather it is
mentioned as part of Plot No. 188. Although, Plaintiff got his plaint amended by
amending part of Plot No. 188 as Survey No. 188/3 but Sale Deed being not for
Survey No. 188/3, both the trial court and the Appellate Court have rightly come to
the conclusion that the Plaintiff failed to correctly describe the suit property and it
cannot be accepted that deeds claimed by him referred to the suit property.
23. Learned Counsel for the Respondent has laid much emphasis on the Deed dated
29.7.1974 executed by Sundara Rajan in favour of Padmanabhan which has been
brought on the record of paper book at page No. 104. Learned Counsel submits that
said sale deed clearly proves the title of Padmanabhan over 2.79 acres of Survey No.
188. The said deed has been filed by the Plaintiff-Respondent as Exhibit A-14. The
Deed dated 29.7.1974 has been specifically considered by the trial court in para 9 of
the judgment. The trial court has in its judgment noticed that Plaintiff came with the
case in the plaint that suit property was inherited by Padmanabhan, however, he
relied on Exhibits A-12 to A-14 with regard to which there was no pleading in the
plaint. In his deposition, PW. 1 admitted that "it is correct to say that without
disclosing this deed in the plaint I filed Exhibits A-12 to A-15". When there was no
pleading in the plaint regarding title of Padmanabhan by any other earlier deed
except the claim of inheritance the trial court rightly discarded the Deed dated
29.7.1974. It is further relevant to note that Plaintiff's application made for
amendment of the plaint in the Appellate Court was considered and rejected by the
Appellate Court. The evidence, with regard of which there is no pleading, has rightly
been discarded by the trial court. Unless there is a pleading especially with regard to
the source of title, the Defendant of a suit has no opportunity to rebut such pleading
thus an evidence with regard to which there is no pleading cannot be relied by the
Plaintiff for setting up his title in a suit. Secondly, the deed dated 29.7.1974 referred
to part of Survey No. 188, whereas the suit was filed in 2007 by the Plaintiff by
which date the Survey No. 188 was sub-divided as 188/1, 188/2, 188/3. The deeds
through which Plaintiff claims title i.e. 28.8.1982, General Power of Attorney dated
31.10.2007 and sale deed dated 05.11.2007 do not refer to any sub-division. The
Plaintiff although amended the Schedule property from part of Plot No. 188 as Survey
No. 188/3 but he failed to prove his title over Plot No. 188/3. We, thus, do find that
the trial court after considering the document dated 29.7.1974 held that Plaintiff
failed to prove his title.
24. As noted above, there was categorical finding by trial court and First Appellate
Court that Defendant No. 1 is the owner of Survey No. 188/1 (2 acres and 2 cents)
and 188/3 (2 acres and 88 cents). In the documentary evidence, filed by the
Defendant both the aforesaid sub divisions i.e. Survey No. 188/1 and 188/3 were
recorded as the Temple property. In the property records maintained by the Hindu
Religious & Charitable Endowment Department also Survey Nos. 188/1 & 188/3 were
recorded in the name of Temple. Extract of the property registered was produced
before the courts below which was believed.
25. The High Court, in its judgment has also accepted that the Temple's name is
recorded for Survey Nos. 188/1 and 188/3. The High Court, in its judgment had held
that total extent of 188/1 and 188/3 is only 5 acres and 10 cents, whereas, plot No.
188 is 7 acres 84 cents, hence, the Plaintiff was entitled to the remaining extent.
Following observations have been made by the High Court in Para 16:
16. The first Defendant has put forth its right, title and interest over the suit
property by virtue of Exs. B1 to B3. In Exhibits B1 to B3, it has been clearly
stated that Sub Division Nos. 188/1 and 3 are standing in the name of the
first Defendant and its total extent is 5 acre 10 cents. It has already been

09-12-2019 (Page 7 of 10) www.manupatra.com Jishnu Saha

 pointed out that the total extent of original Survey No. 188 is 7 acre 84 cents.
By virtue of Exs. B1 to B3, the first Defendant is entitled to get only 5 acre 10
cents and in the remaining extent, the first Defendant cannot claim any right,
title and interest.
2 6 . Thus, the High court has also affirmed the findings of the courts below that
Temple is entitled for Survey No. 188/1 and 188/3 i.e. 5 acres and 10 cents land. In
spite of the aforesaid findings, the High Court proceeded to decree the suit on the
basis of its reasoning, as given in paragraphs 16 & 18 of the judgment. Para 18 of
the judgment of the High Court is as below:
18. Considering the fact that no document has been filed for the purpose of
establishing that Survey No. 188/2 stands in the name of Janaki Ammal and
also considering that the first Defendant is not the absolute owner of the
entire extent of old Survey No. 188 except 5 acre 10 cents of land, the Court
can very well declare that the Plaintiff is the owner of the suit property and
since it is seen from Ex. A30 that the entire extent of old Survey number
stands in the name of first Defendant, the ancillary relief of mandatory
injunction can also be granted in favour of the Plaintiff.
27. The High Court proceeded on the premise that no document has been filed for
purpose of establishing that Survey No. 188/2 stands in the name of Janaki Ammal
and further, the High Court proceeded that First Defendant being not absolute owner
of the old Survey No. 188 except 5 acres and 10 cents, the Plaintiff is the owner of
the rest of the property.
28. Thus virtually, the suit has been decreed by the High Court for Survey No. 188/2,
whereas, Survey No. 188/2 was admittedly recorded in the name of Janaki Ammal,
who was not impleaded in the suit nor any relief was claimed against the Janaki
Ammal or for Survey No. 188/2. In this context, it is useful to refer to the evidence of
Plaintiff himself i.e. PW 1. PW 1, in his deposition before the court, has admitted the
fact that Survey No. 188/2 is in the name of Janaki Ammal and he has not initiated
any action against her nor she was impleaded in the suit. Following statement was
made by the PW 1 in his statement:
It is correct to say that S. No. 188/2 stands in the name of Janaki Ammal.
Now the said Janaki Ammal sold that property to third person. I have not
initiated any action to include Janaki Ammal as a party to this suit.
29. In view of the statement of the Plaintiff himself that Survey No. 188/2 is in the
name of Janaki Ammal, the observations of the High Court that no documentary
evidence was filed for the purpose of establishing that Survey No. 188/2 stands in
the name of Janaki Ammal are erroneous and mis-placed. When Plaintiff himself
admitted that Survey No. 188/2 is recorded in the name of Janaki Ammal, there was
no basis for the High Court to come to conclusion that Plaintiff is entitled for the area
apart from 5 acres and 10 cents, which belonged to the Temple.
30. As noted above, one of the issues framed, as to whether the suit is bad for non-
joinder of necessary party. The said issue was answered against the Plaintiff and it
was held that suit is bad for non-joinder of Janaki Ammal a necessary party, whose
name was recorded against Survey No. 188/2. Without adverting to the said findings
of the trial court and the Appellate Court, the High Court has erroneously decreed the
suit of the Plaintiff.
31. There is one more reason due to which the judgment and the decree of the High
Court cannot be sustained. The trial court in its judgment has categorically recorded

09-12-2019 (Page 8 of 10) www.manupatra.com Jishnu Saha

 findings that the Defendant No. 1 is in possession of the suit property. In para 10
following findings have been recorded by the trial court:
From the oral depositions and exhibits produced on behalf of Defendant 1, it
is clearly found that the suit property belonged to Defendant 1 Arulmigu
Chokkanatha Swamy Temple and it is in its possession for a long time
continuously.
3 2 . One of the submissions made before the courts below, on behalf of the
Defendant, was that the suit for mere declaration when the Plaintiff was not in
possession of the property, was not maintainable and hit by Section 34 of The
Specific Reliefs Act, 1963, the Plaintiff having not sought for recovery of possession.
33. Trial court, after considering the aforesaid submissions, recorded its conclusions
in para 14 which is to the following effect:
From the facts of above cited suit, Plaintiff in this suit has prayed for the relief
of declaration without seeking the relief of recovery of possession and under
these circumstances, it is clearly seen that the Plaintiff is not entitled to get
such relief. Therefore, it is held that the suit is not maintainable legally.
34. Section 34 of the Specific Reliefs Act, 1963 provides as follows:
Section 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.
....
35. In the present case, the Plaintiff having been found not to be in possession and
having only sought for declaratory reliefs, the suit was clearly not maintainable and
has rightly been dismissed by the trial court. In this context the reference is made to
the judgment of this Court reported in Ram Saran and Anr. v. Smt. Ganga Devi
MANU/SC/0523/1972 : AIR 1972 SC 2685, wherein para 1 & 4 following was stated:
1. This is a Plaintiffs' appeal by special leave. Ram Saran and Raghubir Saran,
the Plaintiffs are brothers. They jointly owned suit property with Chhabili Kuer
widow of Lalita Prasad. After the death of Chhabili Kuer on February 8, 1971,
Ganga Devi the Defendant in the suit came forward as the legal representative
of Chhabili Kuer and got the mutation effected in her name in the place of the
deceased Chhabili Kuer. In 1958, the Plaintiffs brought this suit for a
declaration that they are the sole owners of the suit properties. They did not
claim possession either of the entire or even any portion of the suit
properties.
4. We are in agreement with the High Court that the suit is hit by Section 42
of the Specific Relief Act. As found by the fact-finding Courts, Ganga Devi is
in possession of some of the suit properties. The Plaintiffs have not sought
possession of those properties. They merely claimed a declaration that they

09-12-2019 (Page 9 of 10) www.manupatra.com Jishnu Saha

 are the owners of the suit properties. Hence the suit is not maintainable.
36. The Plaintiff, who was not in possession, had in the suit claimed only declaratory
relief along with mandatory injunction. Plaintiff being out of possession, the relief of
recovery of possession was a further relief which ought to have been claimed by the
Plaintiff. The suit filed by the Plaintiff for a mere declaration without relief of recovery
of possession was clearly not maintainable and the trial court has rightly dismissed
the suit. The High Court neither adverted to the above finding of the trial court nor
has set aside the above reasoning given by the trial court for holding the suit as not
maintainable. The High Court in exercise of its jurisdiction Under Section 100 Code of
Civil Procedure could not have reversed the decree of the courts below without
holding that the above reasoning given by the courts below was legally
unsustainable. We, thus, are of the view that the High Court committed error in
decreeing the suit.
37. The decree of the High Court is also contradictory. The High Court has affirmed
the findings that Defendant No. 1 is the owner of the Survey No. 188/1 and 188/3,
whereas, by decreeing the suit for declaration and mandatory injunction the name of
Defendant No. 1 is to be removed and replaced by Plaintiff which is clearly erroneous
and unsustainable.
38. In view of the above, judgment of the High Court cannot be sustained. The High
Court committed an error in reversing the judgments of the trial court and the First
Appellate Court. In result, the appeal is allowed and the judgment of the High Court
is set aside and those of trial court and the First Appellate Court are restored.
© Manupatra Information Solutions Pvt. Ltd.

09-12-2019 (Page 10 of 10) www.manupatra.com Jishnu Saha