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SA/81/1991 9/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 81 of 1991
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
SHRIMATI
KAXMIBEN LALJI WD/O SOLANKI LALJI HADHU & 2
Versus
SMT.
RATANBA VAGHI SOLANKI WIDOW
=========================================
Appearance
:
MR YS MANKAD for Appellants
MR
CH VORA for Respondent
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 21/12/2010
ORAL
JUDGMENT
[1] In
present Second Appeal, following substantial question of law is
raised and involved which is as under:-
“2(A) Whether
on facts and circumstances of case suit as for declaration and
injunction is maintainable ?
[2] Civil
Suit No.30 of 1980 filed by Solanki Lalji Hathubhai before Civil
Judge (J.D.), Mundra at Kutch with a prayer of declaration and
permanent injunction is to be granted against original defendant,
respondent herein. The suit filed by the plaintiff was allowed vide
judgment and decree dated 24.04.1984 by Civil Judge (J.D.), Mundra at
Kutch with a direction to respondent and their agent and heirs not to
disturb the possession and occupancy of plaintiff by defendant in
suit land. Against which Regular Civil Appeal was preferred by
respondent – Solanki Vaghji Tejmal registered as No.76 of 1984
which has been decided issue whether in present nature of merely
relief of declaration and permanent injunction, suit is maintainable
or not. While deciding issue Nos.3 and 4, the Appellate Court has
come to conclusion that original plaintiff, appellant herein was not
in possession of suit land, but on the contrary, defendant –
appellant before lower Appellate Court who is in actual possession of
suit land. These discussions made in paragraph Nos.12 and 13 are
relevant, therefore, quoted as under:
“12. The
plaintiff has filed suit for declaration and injunction he prayed for
declaration that he is owner and possessor of suit fields and suit
Vadi and they are in their personal cultivation. He also prayed for
permanent injunction restraining defendant from interfering or
obstructing or dispossessing him from suit fields and suit Vadi. So
deceased plaintiff has prayed for relief of declaration as well as
permanent injunction alleging that he is having possession of suit
fields and suit Vadi but when it is found that actual and physical
possession of suit fields & Vadi are not with plaintiff and it is
with defendant, plaintiff should have prayed for further relief of
possession in suit. In view of provisions of Sec.34 of the Specific
Relief Act, it is settled principle that injunction is a
discretionary relief and it cannot be claimed by plaintiff when he is
out of possession, he does not ask for possession against defendant
who is actually in possession.
13. The
Supreme Court in case of Ram Saran and another Vs. Smt. Ganga Devi,
AIR 1972 Supreme Court 2085, the Supreme Court held that “plaintiff
can make a suit for possession but plaintiff may ask for recovery of
possession, if defendant is in possession. But plaintiff’s suit for
declaration only without a prayer of recovery of possession shall be
bad if defendant is in possession of some of suit properties.
Therefore, it appears that suit of the plaintiff is bad and without
relief for possession. The plaintiff’s suit is for mere declaration
of his title. The plaintiff who is oustered possession if institute a
suit against defendant who is in possession for declaration of title
with a prayer for injunction, the Court in exercises of its
discretion will not grant to plaintiff his prayer for injunction
even if injunction could be considered during further relief of
within the meaning of proviso to Sec.34 of the Specific Relief Act as
he could have prayed for recovery of possession. This view is
supported by the decision of Calcutta High Court in case of reported
in A.I.R. 1942, Calcutta 245. Therefore, ti clearly appears to me
that relief of injunction against defendant cannot be granted in the
suit and suit and trial Court has committed an error in granting
relief of injunction in favour of plaintiff. Miss B. G. Bhanshali,
has relied on M. Kallappa Setty V. M. Lakhminarayan Rao, AIR 1972
S.C. 2299. In that case Supreme Court held that :-
“The
plaintiff can on the strength of his possession resist interference
from persons who have no better title than himself to suit property.
Once it is accepted, as trial Court and first appellate court have
done that plaintiff was in possession of the property every since
1947 then his possession has to be protected as against interference
by some one who is not proved to have a better title than himself to
the suit property. On findings arrived at by fact finding Courts as
regards possession, plaintiff was entitled to the second relief
asked for by him even if he has failed to prove his title
satisfactorily. Therefore, in our opinion, the High Court was not
right in interfering with judgment of trial court as affirmed by
first appellate court regarding relief No.2.”
In that
case second relief was to effect that granting permanent injunction
restraining defendant from entering in suit properties and
disturbing plaintiff’s possession and also from constructing house
by unlawful obtaining a licence from Municipality. This ruling of
Supreme Court is not helpful to plaintiff in this case. The
plaintiff in that case was in possession of property and defendant
was disturbing his possession, it is not so in this case. In this
case, defendant is alleged to be in exclusive possession of suit
field and Vadi since before filing of the suit. The Delhi High Court
in case of Phirayalal Kapur Vs. Jia Rani and another, AIR 1973 Delhi
186 held that :- ” a possessory title is good against every on
who does not have a better one. Possession is a heritable and
transferable right”. So, possessory title is good against
every one who does not have a better title. In this case, it is
admitted fact that on the date of suit, defendant was in possession
of suit and it is categorical admission on behalf of deceased
plaintiff – Lalji Hadhu. Therefore, I hold that relief for
injunction against defendant could not be granted in favour of
plaintiff in this suit and therefore held that plaintiff is entitled
for relief of permanent injunction to that effect decree is required
to be modified. Therefore, I hold that suit is not maintainable
because Sec.34 of the Specific Relief Act forbids to grant
declaration in event of commission i.e. suit for bare declaration
without further relief for possession or other consequential relief
is not tenable and, therefore, suit is liable to be dismissed and
plaintiff cannot be granted any relief to him in the suit. Therefore,
I answer issue Nos.3 and 4 in negative.”
[3] In
view of aforesaid reasoning given by Appellate Court that merely suit
for grant of declaration and permanent injunction in absence of
possession of suit land and also without further relief for
possession or other consequential relief is not tenable. Therefore,
appeal has been allowed and judgment and decree passed by trial
Court has been set aside and accordingly in result suit, has been
dismissed with cost vide judgment and decree dated 24.01.1991. In the
present appeal filed by the appellant – original plaintiff
where aforesaid substantial question of law formulated by this Court
at the time of admitting Second Appeal.
[4] Learned
advocate Mr.C. H. Vora appearing on behalf of respondent brought to
notice of this Court order passed by this Court in Civil Application
No.896 of 1991 in Second Appeal No.81 of 1991 on 28.11.1991 [Coram :
Hon’ble Mr.Justice N. B. Patel] which is relevant, therefore, quoted
as under:
“The
judgment of the appellate court shows that said court recorded a
clear finding that the plaintiffs were not in actual possession of
the suit land on the date of the filing of the suit. Despite this
position, if it is correct, the plaintiffs filed the suit for a
prohibitory injunction and obtained a temporary injunction. The
plaintiffs earned a decree from the trial court, but that decree is
reversed by the first appellate court.
As an
interim measure, the first appellate court had directed the parties
to maintain status quo as to the possession of the suit lands. The
plaintiffs, who have lost in the first appellate court, have filed
the present appeal and they again seek a temporary injunction to
ensure till the disposal of the appeal. It is, therefore, prima facie
required to be considered whether the plaintiffs were in possession
of the suit lands on the date of the suit and unless it can be prima
facie found that they were in possession of the suit land on the date
of the suit, they cannot be granted temporary injunction. If the
plaintiffs were not in actual possession of the suit and they had
obtained possession or prevented the defendant from entering the suit
land under the guise of the temporary injunction obtained by them on
a misrepresentation of fact, they cannot again be granted temporary
injunction merely because their appeal is admitted. The judgment of
the appellate court shows that in the notice, which the plaintiffs
had given prior to the filing of the suit, they had made a clear
averment that the defendant was appropriating all the produce from
the agricultural land since quite some time prior to the filing of
the suit and was even not permitting them to enter the suit land.
Prima facie, therefore, the finding of the appellate court that even
though the plaintiffs may have title to the suit property, they were
not in actual possession of the suit lands on the date of the filing
of the suit cannot be ignored. In the circumstances, therefore, the
plaintiffs’ prayer for temporary injunction is rejected, even though
their appeal is admitted. Rule discharged. Ad-interim relief vacated.
No order as to costs.”
[5] In
view of aforesaid interim order passed by this Court prima facie this
Court has observed that plaintiffs may have title to suit property,
but they were not in actual possession of suit land on the date of
filing of suit cannot be ignored.
[6] Learned
advocate Mr.C. H. Vora has submitted that recently also, this aspect
has been examined by Apex Court in case of Mehar Chand Das Vs. Lal
Babu Siddique and others,
reported in AIR 2007 S.C. 1499.
The relevant discussions in paragraph Nos.9 to 12 are quoted as
under:-
9. Section
34 of the Specific Relief Act, 1963 reads as under :
“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.”
10. In this
case, it stands admitted that the appellant was treated to be a
tenant by the respondents. The suit property, according to the
respondents, was a tenanted one. The possession of the appellant,
therefore, was denied and disputed. It is furthermore admitted that
the suit for eviction which was filed by him, was as noticed
hereinbefore, dismissed by the Civil Court on 27.5.1977.
11. The
defendant-appellant, therefore, had been in possession of the suit
property. In that view of the matter the plaintiffs-respondents could
seek for further relief other than for a decree of mere declaration
of title.
12. The
High Court, in our opinion, committed a manifest error in not relying
upon the decision of this Court in Vinay Krishna (supra). The said
decision categorically lays down the law that if the plaintiff had
been in possession, then a suit for mere declaration would be
maintainable: the logical corollary whereof would be that if the
plaintiff is not in possession, a suit for mere declaration would not
be maintainable.”
[7] In
view of aforesaid decision of Apex Court and also considering facts
as referred to by this Court in aforesaid interim order that
plaintiff may have title upon suit land but plaintiff is not in
possession of suit land on the date of filing suit. On the contrary,
defendant was in possession of suit land. It is also necessary to
note that no consequential relief of recovering possession and other
benefits has been claimed by plaintiff before trial Court, while
filing Civil Suit, except that declaration and permanent injunction.
Therefore, such a nature of suit under Section 34 of Specific Relief
Act is also not maintainable. Therefore, according to my opinion,
contentions raised by learned advocate Mr.Y. S. Mankad appearing on
behalf of appellant cannot be accepted and lower Appellate Court has
not committed any error while allowing appeal and dismissing Civil
Suit filed by plaintiff on the ground that possession of suit land is
with original defendant and not with plaintiff. Therefore, question
of law which has been formulated by this Court is answered
accordingly. There is no substance in Second Appeal and, therefore,
Second Appeal is dismissed. No order as to costs. Interim relief, if
any, granted earlier stands vacated.
[
H. K. RATHOD, J. ]
vijay
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