15 Feb 2024 2:16 PM GMT
Recently, the Supreme Court reiterated the well-established position of law that under Section 34 of the Specific Relief Act of 1963, a suit for declaration of title without seeking recovery of possession is not maintainable when the plaintiff is not in possession. In this regard, the Court also stressed that a plaint could be amended at any suit stage, even at the second appellate stage.
The Division Bench of Justices Hrishikesh Roy and Sanjay Karol was deciding whether the suit for mere declaration of title was maintainable given Section 34 of the Act.
This provision talks about the discretion of the Court for the declaration of status or right. However, it is imperative to note that its proviso states: “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.” Thus, the proviso restricts the application of such discretion, which is not to be exercised when the complainant seeks only a declaration of title while further relief can be sought.
Based on this, the Appellant argued that the suit could not have been decreed. It was submitted that the Plaintiff sought mere declaration without the consequential relief of recovery of possession. However, this was met with opposition by the Plaintiff/ Respondent. It was averred on the Respondent's behalf he was not entitled to possession at the time of instituting the proceedings. This was because, at that time, the property was in possession of the limited heir, and it was only after her death that the recovery of possession could have been sought.
To adjudicate this point of law, the Court relied on several cases where it was observed that the suit could have been amended, even later, to seek consequential relief. For instance, in Venkataraja and Ors. v. Vidyane Doureradjaperumal (Dead) thr. LRs, (2014) 14 SCC 502. it was observed that the purpose behind including the proviso is to prevent a multiplicity of proceedings. A mere declaratory decree remains non-executable in most cases.
Further, in Union of India v. Ibrahim Uddin (2012) 8 SCC 148, it was observed:
“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.”
In Ram Saran v. Ganga Devi [(1973) 2 SCC 60], the Court had held that the suit seeking for declaration of title of ownership but where possession is not sought, is hit by the proviso of Section 34 of the Specific Relief Act, 1963 and, thus, not maintainable. In Vinay Krishna v. Keshav Chandra [1993 Supp (3) SCC 129], the 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 the Specific Relief Act. (See also Gian Kaur v. Raghubir Singh [(2011) 4 SCC 567)
In Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar v. Chandran and Others (2-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 suit on the basis that the plaintiff has filed a suit for a mere declaration without relief for recovery, which is clearly not maintainable.
Taking a cue from the ration decidendi laid down in these precedents, the Court opined that the plaintiff did not attempt to amend the plaint to seek the relief of recovery of possession. Thus, the Court dismissed the appeal while deciding this point of law in favor of the Appellant.
“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.,” the Court said.
Case Title: VASANTHA (DEAD) THR. LR v. RAJALAKSHMI @ RAJAM (DEAD) THR.LRs., CIVIL APPEAL NO. 3854 OF 2014
Citation : 2024 LiveLaw (SC) 117
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