Ashutosh Mohunta, J.
1. The appellant/plaintiff has filed the present appeal against the judgments of the Sub Judge, 1st Class, Gurdaspur, dated 17.11.1978 as well as the judgment of the Additional District Judge, Gurdaspur, dated 29.2.1980 by which his suit as well as the appeal were dismissed.
2. Briefly the facts of the case are that the plaintiff filed a suit for declaration to the effect that she is a mortgagee of land measuring 19 kanals and that as the mortgage has not been redeemed and that mutation No. 1230 dated 19.2.1974 regarding the redemption of suit land is illegal and is not binding upon the mortgagee rights of the plaintiff The trial Court held that as the plaintiff was not in possession of the suit land, therefore, mere suit for declaration without filing a suit for claiming consequential relief of possession was not maintainable and, accordingly, dismissed the suit. The Appellate Court also returned the same findings and upheld the judgment of the trial Court.
3. Mr. Kuldeep Sanwal, counsel for the appellant, has contended that the suit land was mortgaged by the predecessors-in-interest of the defendants/respondents in favour of Haria and Fauja. Upon their death, their legal representatives including one Jagir Singh held the mortgagee rights of the suit land. The appellant purchased the mortgagee rights from Jagir Singh on 9.7.1970 vide Ex.P1. It is submitted by the counsel for the appellant that while purchasing the mortgagee rights from Jagir Singh, possession had also been taken by the appellant. In support of his contention he has relied upon an order passed by the Naib Tehsildar, Gurdaspur, dated 11.9.1973 by which the Girdawaris were corrected in favour of the appellant from 12.10.1971 to 25.7.1976. The order passed by the Naib Tehsildar was upheld by the Collector. On the basis of the above, learned Counsel contends that the appellant was already in possession of the suit land and, therefore, consequential relief of possession need not have been claimed by the appellant.
4. However, on the other hand, Mr. Rajinder Goyal, counsel for the respondents/defendants has argued that Jagir Singh DW6 has deposed in Court that he had never handed over the possession of the suit land to the appellant. It has further been deposed by DW6 that in fact he was never in possession of the suit land which had already been taken by the respondents. Learned Counsel has also referred to the revenue entry Ex.D3 by which the possession of the respondents has been shown from 12.10.1976 to 19.10.1977 whereas the suit was filed on 21.10.1976. On the basis of the above, learned Counsel submits that the appellant was not in possession of the suit land. Learned Counsel has also drawn my attention to the fact that the appellant had filed an application for amendment of the suit wherein he had prayed for the relief of consequential relief of possession.
5. On the basis of the above facts, the questions of law that arises for consideration in the present case are:
1. Where in a case the possession is not with the plaintiff, then whether a suit for declaration is maintainable without seeking the consequential relief of possession?
2. Whether the plaintiff was in possession of the suit land on the date of filing of the suit?
6. A perusal of the impugned judgments clearly shows that the appellant was never in possession of the suit land on the date of filing of the suit. In this regard, a perusal of the statement of Jagir Singh from whom the appellant is stated to have purchased the mortgagee rights shows that the possession was never delivered to the appellant. Jagir Singh has categorically stated that he himself was never in possession of the suit land and, therefore, he could not deliver the same to Jeeto-plaintiff. Apart from the above, the application filed by the appellant for amendment of the suit wherein it was prayed that the consequential relief of possession be allowed to be incorporated in the suit also shows that the appellant was not in possession of the suit land. Thus, it has been established from the record that the appellant was not in possession of the suit land on the date of filing of the suit land, therefore, the mere suit for declaration without claiming the consequential relief of possession was not maintainable in view of the provision of Section 34 of the Specific Relief Act, 1963 which reads as under:
34. Discretion of Court as to declaration of status of 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.
7. A perusal of the proviso to Section 34 of the Specific Relief Act, 1963 clearly lays down that where the plaintiff has not sought the consequential relief of possession in a suit for declaration then such a declaration shall not be granted to the plaintiff.
8. In the present case the plaintiff/appellant has not sought the consequential relief of possession and, hence, a mere suit for declaration is not maintainable. As per the evidence led by the parties it is also clear that the possession of the suit land was not with the plaintiff on the date of filing of the suit.
In view of the above, the questions posed in the present appeal are answered against the appellant. Resultantly, the appeal fails and the same is dismissed.