Venkataraja & Ors. v. Vidyane Doureradjaperumal & Ors.

4. Per contra, Shri R. Balasubramaniam, learned senior counsel appearing for the respondents, has opposed the appeals contending that seeking consequential relief was necessary in order to maintain the suit for declaration as per the proviso to Section 34 of the Special Relief Act, 1963 (hereinafter referred to as the ‘Act 1963’). The pleadings taken by the parties suggest, that the respondents had been in physical possession of the property alongwith their tenants. They were in exclusive possession of the same. Therefore, as no consequential relief had been sought, the suit was not maintainable. More so, the question of limitation was very relevant and has rightly been dealt with by the High Court. The appeals lack merit, and are liable to be dismissed.

5. We have considered the rival submissions made by the learned counsel for the parties and perused the record.

6. Ramaraja claiming himself to be the reversioner, had filed a suit against the purchaser Vedavalliammalle, which was decided in 1965, Page 11 and the issue of nature of title, with respect to whether the interest of Thayanayagy Ammalle was merely usufructuary or absolute, was considered. The court had then come to the conclusion vide judgment and decree dated 29.11.1965, that the same was pre-mature, as the suit could not have been filed during the life time of Thayanayagy Ammalle. In the suit O.S. No. 58 of 1982, undoubtedly, the contesting respondents had also been shown as the residents of the suit property, and relief had been claimed only for declaration that the plaintiff was the legal heir of the deceased Kannussamy Row, the great grandson of Venkatachala Naicker, having title to the suit property, and further, for declaration that the sale deed dated 16.7.1959 was null and void. In para 4 of the written statement, it has been mentioned that the respondents/defendants were living in the suit property alongwith defendant Nos. 3 to 9, their tenants. In view of the pleadings taken by the parties, a large number of issues were framed by the trial court, including whether the plaintiff was the legal heir of the deceased Kannussamy Row; whether the sale deed dated 16.7.1959 was null and void; and whether the plaintiff was entitled for the declaration, as prayed for. Page 12

7. The trial court held, that Thayanayagy Ammalle had not acquired absolute right and that the plaintiff therein was thus, the reversioner. The sale deed dated 16.7.1959 was void. However, as the property was in the possession of the respondents/defendants, and consequential relief of delivery of possession was not asked for, the suit was not maintainable.

8. Being aggrieved, the parties filed cross appeal suit Nos. 198/83, 21/88 and 43/88. All the aforesaid appeal suits were disposed by a common judgment of the First Appellate Court, and the said court held, that Vedavalliammalle was not residing in the suit property as she was residing somewhere, and had rented the house to three different tenants, with a total strength of about 26 members. Therefore, defendant no.1 was not in possession of the suit property even as early as 1969, and therefore, defendant no.10 also did not have possession of the suit property. In view of the fact that the tenants could have been evicted subsequently by the appellant/plaintiff, resorting to the provisions of the Act 1980, which had been extended upto 31.3.1990, the suit was maintainable, and the trial court ought not to have dismissed the said Page 13 suit on the ground that appellant/plaintiff had not sought consequential relief of recovery of possession.

9. The High Court having considered various points involved therein held, that as per Article 2265 of the French Civil Code 1908, a person who had acquired an immovable property in good faith, and under an instrument which was on the face of it capable of conferring a title, would perfect his title by prescription to the land in ten years, in the district of the Court of Appeal, when the owner lives in the same district as that in which the land lies, and in twenty years if the true owner lives outside such district. Admittedly, the first defendant Vedavalliammalle had purchased the suit property from the absolute owner Thayanayagy Ammalle, as per sale deed dated 16.7.1959. Thus, she had become the rightful owner, said sale deed being not null and void.

10. These appeals have raised the questions regarding the interpretation of French Hindu Law, as to whether a Hindu widow having only a life estate, can be considered the absolute owner of a property, thus competent to transfer the said property; and secondly Page 14 whether the suit was maintainable as the appellant/plaintiff had not sought any consequential relief.

11. So far as the issue no.1 is concerned, undoubtedly, the Act 1956 was extended to the Union Territory of Pondicherry only, at a much later stage. Various judgments of the French courts and the Madras High Court dealing with the issue have been cited before us, but in view of the fact that Shri R. Bala Subramaniam, learned senior counsel appearing on behalf of the respondents, has fairly conceded that such a Hindu widow could not acquire the absolute title, there is no occasion for us to enter into that controversy. Even otherwise, the finding recorded by the High Court is not based on any evidence, and no reason has been given by it to reverse the findings recorded by the trial court as well as the First Appellate Court that Thayanayagy Ammalle was only the life estate holder. We hold that the High Court has erred in recording such a finding.

12. So far as the issue of adverse possession is concerned, in our humble opinion, the High Court had no occasion to deal with the same, in view of the earlier judgment of the trial court, wherein in 1965, it had been held that the suit filed by the appellant/plaintiff was Page 15 pre-mature, as he could not file the same during the life time of Thayanayagy Ammalle.

13. Thus, the only relevant issue on which the judgment hinges upon is, whether the suit was maintainable without seeking any consequential relief. In Deo Kuer & Anr. v. Sheo Prasad Singh & Ors. AIR 1966 SC 359, this Court dealt with a similar issue, and considered the provisions of Section 42 of the Specific Relief Act 1877, (analogous to Section 34 of the Act 1963), and held, that where the defendant was not in physical possession, and not in a position to deliver possession to the plaintiff, it was not necessary for the plaintiff in a suit for declaration of title to property, to claim the possession. While laying down such a proposition, this Court placed reliance upon the judgments of Privy Council in Sunder Singh Mallah Singh Sanatan Dharam High School Trust v. Managing Committee, Sunder Singh Mullah Singh Rajput High School, AIR 1938 PC 73; and Humayun Begam v. Shah Mohammad Khan, AIR 1943 PC 94.

14. In Vinay Krishna v. Keshav Chandra & Anr., AIR 1993 SC 957, this Court while dealing with a similar issue held: Page 16 “……It is also now evident that she was not in exclusive possession because admittedly Keshav Chandra and Jagdish Chandra were in possession. There were also other tenants in occupation. In such an event the relief of possession ought to have been asked for. The failure to do so undoubtedly bars the discretion of the Court in granting the decree for declaration.” (emphasis added)

15. The facts in the case of Deo Kuer (Supra) are quite distinguishable from the facts of this case, as in that case, the tenants were not before the court as parties. In the instant case, respondent nos. 3 to 10 are tenants, residing in the suit property. The said respondents were definitely in a position to deliver the possession. Therefore, to say that the appellants would be entitled to file an independent proceedings for their eviction under a different statute, would amount to defeating the provisions of Order II Rule 2 CPC as well as the proviso to Section 34 of the Act 1963. Thus, the First Appellate Court, as well as the High Court failed to consider this question of paramount importance.

16. The very purpose of the proviso to Section 34 of the Act 1963, is to avoid the multiplicity of the proceedings, and also the loss of revenue of court fees. When the Specific Relief Act, 1877 was in Page 17 force, the 9th Report of the Law Commission of India, 1958, had suggested certain amendments in the proviso, according to which, the plaintiff could seek declaratory relief without seeking any consequential relief, if he sought permission of the court to make his subsequent claim in another suit/proceedings. However, such an amendment was not accepted. There is no provision analogous to such suggestion in the Act 1963.

17. A mere declaratory decree remains non-executable in most cases generally. However, there is no prohibition upon a party from seeking an amendment in the plaint to include the unsought relief, provided that it is saved by limitation. However, it is obligatory on the part of the defendants to raise the issue at the earliest. (Vide: Parkash Chand Khurana etc. v. Harnam Singh & Ors., AIR 1973 SC 2065; and State of M.P. v. Mangilal Sharma, AIR 1998 SC 743). In Muni Lal v. The Oriental Fire & General Insurance Co. Ltd. & Anr., AIR 1996 SC 642, this Court dealt with declaratory decree, and observed that “mere declaration without consequential relief does not provide the needed relief in the suit; it would be for the Page 18 plaintiff to seek both reliefs. The omission thereof mandates the court to refuse the grant of declaratory relief.” In Shakuntla Devi v. Kamla & Ors., (2005) 5 SCC 390, this Court while dealing with the issue held: “……a declaratory decree simpliciter does not attain finality if it has to be used for obtaining any future decree like possession. In such cases, if suit for possession based on an earlier declaratory decree is filed, it is open to the defendant to establish that the declaratory decree on which the suit is based is not a lawful decree.”

18. In view of the above, it is evident that the suit filed by the appellants/plaintiffs was not maintainable, as they did not claim consequential relief. The respondent nos. 3 and 10 being admittedly in possession of the suit property, the appellants/plaintiffs had to necessarily claim the consequential relief of possession of the property. Such a plea was taken by the respondents/defendants while filing the written statement. The appellants/plaintiffs did not make any attempt to amend the plaint at this stage, or even at a later stage. The declaration sought by the appellants/plaintiffs was not in the nature of a relief. A worshipper may seek that a decree between the two parties is not binding on the deity, as mere declaration can protect Page 19 the interest of the deity. The relief sought herein, was for the benefit of the appellants/plaintiffs themselves. As a consequence, the appeals lack merit and, are accordingly dismissed. There is no order as to costs. ….…………………………… ................................... J. (Dr. B.S. CHAUHAN) …..…………………………… ................................... J. (FAKKIR MOHAMED IBRAHIM KALIFULLA) NEW DELHI; April 10, 2013.