Second appeal over a suit seeking declaration of title and injunction over vacant sites. The court held that a plaintiff admittedly out of possession cannot obtain bare declaration without seeking recovery of possession under proviso to Section 34 Specific Relief Act, found no substantial question of law, and dismissed the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2024 BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO. 920 OF 2012 (DEC/INJ)
BETWEEN:
Digitally signed by ANUSHA V Location: High Court Of Karnataka
ALL ARE R/A NANDI VILLAGE, LINGADAHALLI HOBLI, TARIKERE TALUK.
…APPELLANTS
[BY SRI R.C. NAGARAJ, ADVOCATE (PH)]
AND:
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BOTH ARE R/A NANDI VILLAGE, LINGADAHALLI HOBLI, TARIKERE TALUK.
BOTH ARE AGRICULTURIST, R/O NANDI VILLAGE, LINGADAHALLI HOBLI, TARIKERE TALUK - 577 548.
RESPONDENTS NO.3 TO 8 ARE R/O NANDI VILLAGE, LINGADAHALLI HOBLI, TARIKERE TALUK.
…RESPONDENTS
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THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 13.03.2012 PASSED IN R.A.NO.48/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE & PRL. JMFC., TARIKERE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 16.09.2006 PASSED IN O.S.NO.157/1999 ON THE FILE OF THE CIVIL JUDGE (JR.DN) & ADDL. JMFC., TARIKERE.
THIS APPEAL IS COMING ON FOR ADMISSION , THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
ORAL JUDGMENT
Challenging judgment and decree dated 13.02.2012
passed by Senior Civil Judge and Principal JMFC, Tarikere, allowing R.A.no.48/2006 as well as dismissing Cross-Appeal filed against judgment and decree dated 16.09.2006 passed by Civil Judge (Jr.Dn.) and Additional JMFC, Tarikere, in O.S.no.157/1999, this appeal is filed.
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in possession of suit property and consequential relief of permanent injunction restraining defendants, etc., from interfering with plaintiff's peaceful possession and enjoyment of suit property. In plaint, it was stated, suit property was purchased by plaintiff under registered Sale Deed dated 23.04.1956 from Vallanna S/o Eranna for valuable consideration of Rs.400/- and plaintiff was put in possession. It was stated that original Sale Deed was later lost/misplaced. It was further stated, plaintiff was unable to construct houses in sites. Hence, they were used for agriculture. And when he applied for khanesumari extracts, he was issued with an endorsement that records were not available. It was stated that at time of suit, plaintiff had grown sunflower, chilly, tingalavurali, peas, maize and urad, etc.
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claiming title in respect of entire Gollarahalli village by showing
its measurement as East-West 500 feet and North-South 300 feet which would be 15 guntas. It was specifically stated that defendants no.3 to 6 were in possession of extent of 30 ft. X 30 ft. in 3.17 Acres of Gollarahalli village by constructing Mangaluru tiled house and residing there since fifteen years. It was stated that plaintiff had sought to dispossess defendants with help of police on basis of order of temporary injunction. Alleging that suit was frivolous and vexatious, sought for its dismissal. Defendants no.4 to 8 filed memo adopting written statement of defendant no.3.
were framed:
Issues:
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Additional Issues:
got marked Exs.P1 to P5, while defendants no.1 and 3 examined themselves as DWs-1 and 2 and got marked Exs.D1 to D12.
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finding that plaintiff had better title to suit property than defendants was without examining title of plaintiff’s vendor. That, trial Court erred in its conclusion about Gollarahalli being included in Nandi village. It was also contended that Ex.P1 – title deed of plaintiff did not contain any measurement. Therefore, trial Court erred in granting declaration of title in respect of property measuring 300 ft. X 500 ft.
following:
Points
- Whether the findings and reasons recorded on issued no.1 and additional issue no.1 & 2 holding that the plaintiff has proved his title to the suit schedule property required to be interfered?
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filed by defendants, but also dismissing Cross-Appeal filed by plaintiff. It was submitted, whereas plaintiff was seeking relief of declaration of title and for permanent injunction against interference by defendants. To substantiate title, plaintiff had produced certified copy of registered sale deed dated 23.04.1956 as Ex.P1. Defendants did not produce any records to contradict plaintiff’s title. They also failed to produce any record to establish that they had put up construction or were in possession of any portion of suit property. Such being case, trial Court had rightly granted decree of declaration of title, but, erroneously denied relief of injunction. Though in Cross-Appeal, plaintiff had challenged refusal of relief of permanent injunction by trial Court, first appellate Court had only considered appeal filed by defendants and at time of allowing appeal consequentially dismissed Cross-Appeal without proper consideration. It was submitted, judgment and decree passed by first appellate Court was contrary to settled legal principle that possession follows title and therefore, submitted following substantial questions of law would arise for consideration:
- Whether first appellate Court was justified in its conclusion that reasons and findings of Trial Court while granting declaration of title called for interference?
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on following observations by High Court of Madras in case of
Arulmigu Velukkai Sri Azhagiya Singaperumal Devasthanam v. G.K. Kannan , reported in 2020 SCC
OnLine Mad 28257 :
“33. A denial of the plaintiffs title in the written statement is merely a pleading of the defendant. It is part of his strategy, and is fundamentally self-serving. Can therefore, a denial of plaintiffs title without anything more, be adequate enough to conclude that the title of the plaintiff has come under a cloud? For instance, in the present case, Andalammal had purchased two items of properties (of which one is the suit property), sometime in 1892 and 1893, and endowed them for religious charity under Ext.A-5 in 1907, and the plaintiff has produced documents up to couple of years next before the institution of the present suit for proving the character of the suit property. So far as the plaintiff-temple is concerned, the initial burden cast on it to prove its case has been discharged. The law on shifting of burden of proof informs that the burden shifts to the defendant only after the plaintiff has discharged his burden, which in other words would mean that when the evidence produced by the plaintiff is found to be capable of producing a certain prima facie conclusion in support of the latter's case. Now, can the prima facie conclusion on the plaintiffs title based on his evidence, be stated to have been adequately defended by a mere denial of plaintiffs title in the written statement, or its inadequate proof?
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34. If a mere denial in the pleading of the defendant is considered adequate, it instantly dispenses him of his burden to prove his plea of denial of plaintiffs title, which then will automatically elevate the defendant's pleading on a disputed fact (and not law) to the status of its proof. This would give an unfair procedural advantage to the defendant. Viewing it from another angle, if only a denial of plaintiff's title in the written statement without anything more, can be a ground to non-suit the plaintiff for not seeking a declaratory relief, then that could have been made the ground to dismiss the suit on a preliminary issue, but Order XIV Rule 2 CPC, does not provide for this course. It cannot be ignored that, notwithstanding the nature of action, and irrespective of whether the relief sought is one under the common law, or a discretionary relief in equity, the procedure which the Courts adopt for trial of the case and the law on burden of proof that govern the trial remain the same for both.
35. It can now be deduced that, to constitute a cloud on plaintiffs title, there must be evidence for the Court to conclude prima facie that the plaintiffs assertion of title to a legal character, or to a right over a property has come under the cloud. Let it not be forgotten, that life's experience in this country, which both the Courts and the legal practitioners would vouchsafe, that not every litigant makes a bonafide denial of plaintiffs title. While, a bonafide denial of plaintiff title with some evidence may merit consideration, to non-suit the plaintiff with a colorable denial of former's title will be unconscionable, if only it is acknowledged that fairness is integral to our adversarial jurisprudence.
36. Hence, it is necessary for the Court to weigh:
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suit has the title, or, if he traces his title to the same source from which plaintiff also derives title, or if the defendant relies on an independent source of title to some other source;
• If the evidence produced by the defendant to prove his plea of denial of the plaintiffs title covers the same period for which the plaintiff has produced the evidence, or whether such evidence as produced by both the plaintiff and the defendant are separated by a clear time-line;
• If any adverse inference is required to be drawn against any of the parties for not producing the evidence which is in their capacity to produce, and evaluate the relative quality of the evidence made available before it. (What is indicated here is not exhaustive since every case has its own character. When the rule of probability determines the nature of the decision to be made, it can never be exhaustive too.). This precisely is the exercise what the Court engages in it is required to enter a finding on a disputed title incidentally in a suit for bare injunction.
37. Ideally, the Court may engage in a certain process to achieve a certain degree of balance between a bonafide denial of title and a colorable denial of title:
• Firstly, it may independently evaluate the plaintiff's title based on the evidence he produces, and then evaluate the resistance to it in terms of the defendant's case. Then it may try viewing the conclusion arrived on the plaintiffs case through the conclusion arrived in defendants case (something like holding a glass in between the eye and the object).
• If the vision to the plaintiffs title is not obstructed or blurred, then there is no cloud on plaintiffs title, and if it is not, then there is one (though in actual working, the mind
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works faster and enables an understanding instantaneously).
• And if after this process, the Court holds that the suit is maintainable without a relief of declaration, then subject to the rule of res judicata, the defendant may institute a suit to establish his title.
38. The above course, in the estimate of this Court, will infuse a certain degree of processual fairness to the whole discourse relating to ‘cloud on title’, and non-suiting the plaintiff for not seeking a declaratory relief If it were to be understood differently, then a person with a settled title and possession for a long period can face a threat to such title at anytime of the defendant's choice, who may emerge from nowhere, with mere denial of the plaintiffs title on his lip. And the defendant will be under no burden to prove his case, since the defendant in our legal system can recline on the comfort of the procedural law, and wait for the plaintiff to prove his title. And, in the process, he may count every shades of weakness in the plaintiffs case, the advantage of which the plaintiff does not have, since the law on burden of proof does not permit the plaintiff to rely on the weakness of the defendant's case.
39. If fairness has to reign supreme in our processual jurisprudence, it is necessary to eliminate a seeming opportunity available to the defendant to steal an unfair procedural advantage over the plaintiff. It then becomes indispensable for Courts of facts to realize their responsibility, assert their role as fair arbiters within the bounds of available procedure, and ascertain if the denial of the plaintiff's title by the defendant is bonafide, or hollow and colorable.”
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submitted, while passing impugned judgment and decree, first appellate Court has re-appreciated entire material on record and had given findings not only on question of title, but, also about possession over suit property. It had concluded that plaintiff failed to establish either title or possession over suit property. On said finding of fact arrived after consideration of entire material on record, it had allowed defendants appeal and dismissed plaintiff’s Cross-Appeal. Therefore, no substantial questions of law as proposed arose for consideration. It was submitted, though there was declaration of title by trial Court, it had denied relief of permanent injunction taking note of evidence about suit property being in possession of defendants. Since plaintiff had not sought for relief of possession, nor preferred appeal against rejection of prayer for permanent injunction, first appellate Court had rightly allowed appeal. It was submitted, prayer for declaration without consequential prayer for possession, when plaintiff was out of possession would be fatal and in accordance with settled legal principles. On above grounds, sought for dismissal of appeal.
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plaintiff’s vendor over suit property and also disputed correctness of measurements and boundaries of suit property which they alleged to be measurement of entire village. They claimed to be in possession of portions of suit property by constructing houses and residing therein since ten to fifteen years. They claim to have applied for grant of sites, which were pending before Panchayath. Therefore, suit was bad for nonjoinder of necessary parties.
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NC: 2024:KHC:43793 RSA No. 920 of 2012
village. On said reasoning, it concludes dispute about improper description of suit property as unsubstantiated. Insofar as dispute regarding measurement of suit property, it concludes, in case measurement of immovable property not being clear, recitals in boundary description would prevail by referring to case law. Thereafter, by invoking presumption available under Section 90 of Indian Evidence Act to Ex.P1 – sale deed and taking note of conduct of defendants in merely denying plaintiff’s title without producing any contrary material to hold plaintiff’s title to suit property as established. But, taking note of fact that defendants established their possession, as plaintiff himself had impleaded defendants no.3 to 8 on ground that they had encroached suit property during pendency of suit, it held plaintiff was not entitled for relief of permanent injunction. It also observes, when plaintiff admitted defendants being in possession, it would not be necessary to determine whether such possession was lawful or otherwise.
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name of vendor while rest of them stood in name of different
persons namely, Chikkanna S/o Doddathamma, Eranna S/o Chikkanna and Sanna Eranna. It also noted absence of measurement of demised property in Ex.P1. It referred to admission by PW.1 that measurement of suit property was furnished on basis of his imagination and lack of records as per Ex.P2 – Endorsement, to conclude that plaintiff failed to establish his vendor’s title to property purchased by plaintiff. It also concluded, when recitals in Ex.P1 – sale deed disclose that only one amongst demised properties stood in name of vendor, adverse inference drawn against defendants for not producing any documents to establish better title in their favour was also contrary to law.
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and specifically to admission about intention behind filing of suit for eviction of defendants from suit property in addition to clear assertion in I.A.no.10 that defendants no.3 to 8 had put up thatched huts in suit property, to confirm finding of trial Court about plaintiff being out of possession. Applying principle of law that mere prayer for declaration of title, when plaintiff was not in possession would not be maintainable and taking note of fact that plaintiff had not sought prayer for possession, concluded that decree of declaration of title would be wholly untenable. On said reasoning, first appellate Court held that there was improper consideration of material on record by trial Court and that its conclusions were erroneous. On said findings, it allowed appeal.
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had entered suit property, would substantiate findings of both Courts.
for declaration of title and for permanent injunction restraining defendants from interfering with plaintiff’s lawful possession. When plaintiff is admittedly out of possession, suit for bare declaration of title without consequential prayer for being put back in possession would fall foul of proviso to Section 34 of Specific Relief Act, 1963, which reads as follows:
“ 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.”
v. Rajalakshmi , reported in (2024) 5 SCC 282 as follows:
“49. We now proceed to examine the law on this issue. As submitted by the learned Senior Counsel for the appellant, in Vinay
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Krishna v. Keshav Chandra [Vinay Krishna v. Keshav Chandra, 1993 Supp (3) SCC 129] (two-Judge Bench), this Court while considering Section 42 of the erstwhile Specific Relief Act, 1877 to be pari materia with Section 34 of SRA, 1963 observed that the plaintiff's not being in possession of the property in that case ought to have amended the plaint for the relief of recovery of possession in view of the bar included by the proviso.
50. This position has been followed by this Court in Union of India v. Ibrahim Uddin (two-Judge Bench), elaborated the position of a suit filed without the consequential relief. It was observed: (SCC p. 173, paras 55-58)
“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.
56. In Ram Saran v. Ganga Devi [Ram Saran v. Ganga Devi, (1973) 2 SCC 60] this Court had categorically held that the suit seeking for declaration of title of ownership but where possession is not sought, is hit by the proviso to Section 34 of the Specific Relief Act, 1963 and, thus, not maintainable. In Vinay Krishna v. Keshav Chandra [Vinay Krishna v. Keshav Chandra, 1993 Supp (3) SCC 129] this 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 Specific Relief Act. (See also Gian Kaur v. Raghubir Singh [Gian Kaur v. Raghubir Singh, (2011) 4 SCC 567: (2011) 2 SCC (Civ) 366].)
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57. In view of the above, the law becomes crystal clear that it is not permissible to claim the relief of declaration without seeking consequential relief.
58. In the instant case, the suit for declaration of title of ownership had been filed, though Respondent 1-plaintiff was admittedly not in possession of the suit property. Thus, the suit was barred by the provisions of Section 34 of the Specific Relief Act and, therefore, ought to have been dismissed solely on this ground. The High Court though framed a substantial question on this point but for unknown reasons did not consider it proper to decide the same.”
51. In Venkataraja v. Vidyane Doureradjaperumal [Venkataraja v. Vidyane Doureradjaperumal, (2014) 14 SCC 502 : (2015) 1 SCC (Civ) 360] (two-Judge Bench), the purpose behind Section 34 was elucidated by this Court. It was observed that the purpose behind the inclusion of the proviso is to prevent multiplicity of proceedings. It was further expounded that a mere declaratory decree remains non-executable in most cases. This Court noted that the suit was never amended, even at a later stage to seek the consequential relief and therefore, it was held to be not maintainable. This position of law has been reiterated recently in Akkamma v. Vemavathi [Akkamma v. Vemavathi, (2021) 18 SCC 371] (two-Judge Bench).
52. This Court in Arulmigu Chokkanatha Swamy Koil Trust v. Chandran [Arulmigu Chokkanatha Swamy Koil Trust v. Chandran, (2017) 3 SCC 702 : (2017) 2 SCC (Civ) 334] (two-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
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suit on the basis that the plaintiff has filed a suit for a mere declaration without relief for recovery, which is clearly not maintainable.
53. That apart, it is now well settled that the lapse of limitation bars only the remedy but does not extinguish the title. Reference may be made to Section 27 of the Limitation Act. This aspect was overlooked entirely by the High Court in reversing the findings of the courts below. It was not justified for it to have overlooked the aspect of limitation, particularly when deciding a dispute purely civil in nature.
[ 54. 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. The plaintiff himself has stated that Defendant 1 was in possession of the subject property and had sought to transfer possession of the same to Defendant 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 [Harcharan v. State of Haryana, (1982) 3 SCC 408 (two-Judge Bench)], even at the second appellate stage [Rajendra Prasad v. Kayastha Pathshala, 1981 Supp SCC 56 (1) (two-Judge Bench)].”
Cross-Appeal was only for dismissal of appeal filed by defendants. There was no specific prayer for reversing finding
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of trial Court insofar as possession and relief of permanent injunction. In any case, said contention would pale into insignificance in view of above legal position.
ORDER
Appeal is dismissed with cost throughout.
Sd/(RAVI V HOSMANI) JUDGE
AV/GRD List No.: 1 Sl No.: 30
2 issues framed by the court
Whether a bare declaration of title is maintainable when the plaintiff is out of possession and seeks no consequential relief of possession?
Whether any substantial question of law arose justifying interference with the first appellate Court's findings?
Colour shows how this judgement treated each authority
Arulmigu Velukkai Sri Azhagiya Singaperumal Devasthanam v. G.K. KannanDistinguished¶30
2020 SCC OnLine Mad 28257 · Who else cites this
Vasantha v. RajalakshmiRelied on¶28
(2024) 5 SCC 282 · Who else cites this
2 provisions across 2 enactments
Nanjundappa (since dead, represented by LRs Nanjundamma, Chandrashekarappa, Basavarajappa N., Mallikarjuna N.)
Channabasappa (since dead, represented by LRs Yathish N.C., Prasanna N.C.)
Rajappa
Manjappa
Basavarajappa
Revanasiddappa
Ravi V Hosmani
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
