Judgment:
ORDER
Mahesh Grover, J.
1. This Regular Second Appeal is directed against judgments and decrees dated 18.9.2001 and 10.11.2003 passed respectively by the Civil Judge (Junior Division), Kapurthala (referred to hereinafter as 'the trial Court') and the Additional District Judge, Kapurthala (hereinafter described as 'the First Appellate Court') whereby the suit and the appeal of the plaintiffs-appellants and pro forma respondent Nos. 3 to 5 were dismissed.
2. Briefly stated the facts of the case are that the present appellants and pro forma respondent Nos. 3 to 5 had filed a suit for declaration against defendants-respondent Nos. 1 & 2. It was pleaded that appellant No. I and his brother-Gurcharan Singh, father of appellant No. 2 and pro forma respondent Nos. 3 to 5 purchased the suit land from respondent Nos. 1 and 2 on 4.2.1982 for a total consideration of Rs. 4000/-. It was further pleaded that a sale deed was executed and got registered on the very same day and they were in possession of the suit property ever since and have constructed house thereon in which they were residing. Mutation No. 1212 regarding the suit property was stated to have been entered in the revenue records, but when the appellants and pro forma respondent Nos. 3 to 5 approached the Halqa Patwari to get a copy of jamabandi for obtaining some loan, then they came to know that mutation No. 1212 relating to the suit property was not sanctioned in their favour. They requested the revenue officials to get mutated the property in their favour, but they refused to do so. They, therefore, filed the instant suit for declaration that they were owner in possession of the land measuring 19 marlas as detailed in the headnote of the plaint.
3. Upon notice, respondent Nos. 1 & 2 appeared and contested the suit and pleaded that they along with Resham Singh son of Banta Singh, Amar Kaur widow of Sital Singh, Jasvir Singh, Hira Singh and Smt. Seebo widow of Santa Singh were in possession of the suit property as owners. They further pleaded that other co-sharers of the suit property had not been impleaded as party to the suit and, therefore, it was bad for non-joinder of necessary parties. It was further pleaded that they never sold the suit property in favour of appellant No. 1 and his brother-Gurcharan Singh and that the sale deed dated 4.2.1982 was never executed by them. Fraud and forgery were also pleaded qua the sale deed
4. On the pleadings of the parties, the following issues were framed:
1. Whether the plaintiffs are entitled to declaration as prayed for?OPP
2. Whether the suit is not maintainable in the present form?OPD
3. Whether the suit is within time?OPD
4. Whether the suit is bad for non-joinder for the necessary parties?OPD
5. Whether the plaintiffs are estopped by their act and conduct to file the present suit?OPD
6. Relief.
5. After appraisal of the entire evidence on record, Civil Judge (Junior Division), Kapurthala (referred to hereinafter as 'the trial Court') dismissed the suit by holding that the sale deed was not proved and that it was barred by limitation and also by holding that the appellants and pro forma respondent Nos. 3 to 5 were not in possession of the suit property.
6. On appeal, the First Appellate Court concluded that the sale deed was valid and was proved. It also held, the suit to be within limitation and declared the appellants and pro forma respondent Nos. 3 to 5 to be the owners of the suit property, but, insofar as possession was concerned, it found that respondent Nos. 1 and 2 were in possession of the suit property and held that since the suit was for mere declaration and not for possession, it declined to decree the suit which has resulted in filing of the present Regular Second Appeal.
7. Learned Counsel for the appellants contended that once the validity of the sale deed was established and all other issues regarding the suit being within limitation and the appellants being owners of the land in dispute were determined in their favour, then in such an eventuality, the relief of possession ought to have been granted to them. It was further contended that in any eventuality, an opportunity should have been granted to the appellants to amend their plaint and incorporate the prayer for possession therein. Reliance was placed on paragraphs 5 and 6 of the judgment in D.A.V. College, Hoshiarpur Society v. Sarvada Nand Anglo Sanskrit Higher Secondary School, Managing Committee, Bassi Kalian, reported as : AIR 1967 Punjab 501, which are reproduced below:
5. The learned Counsel for the respondent on the other hand relied on Kandaswami Thambiran v. Vagheesam Pillai AIR 1941 Mad 822 (FB), where it was observed:
The plaintiff who is asking for a declaration of his title to the office of a mahant and who is not in possession of its properties must by reason of Section 42 ask for possession. His failure to do so vitiates his suit.He also referred to the case of M. Masjid Shahid Gani v. Shiromani Gurdwara Parbhandak Committee, Amritsar AIR 1938 Lah 369 (FB) which laid down:
Where a suit is filed on behalf of the Mahommedan community which could have sued for possession of a mosque in possession of non-Muslims even though the individuals of that community cannot sue for such relief, the relief asked for is only for a mere declaration and injunction, the suit is not maintainable.The third case relied upon by him, Sunder Singh Mallah Singh Santan Dharam High School Trust, Indaura v. Managing Committee Sunder Singh Mallah Singh, Rajput High School, Indaura AIR 1938 PC 78, laid down as follows:
Where the plaintiff claims to be a trustee and administrator of certain institution of which neither he nor defendant is in possession or control of the management, a suit for mere declaration under Section 42 is maintainable; and where it is not open to the plaintiff to pray for possession also as against the defendant, injunction against the defendant is further relief within the meaning of the proviso to Section 42.In the present case, as already observed, the plaintiff-society is not in possession of the School building or in control of the management of the School and on the other hand the defendant-Committee is in control of the management of the School and is also in possession of the School building. The suit, as conceived by the plaintiff-society, according to the rule laid down by the Privy Council is not maintainable because it could legitimately pray for possession also as against the defendant-Committee. The other two cases relied upon by the learned Counsel for the respondent also support this view. Therefore, the learned District Judge was correct in holding as he did that the suit in the present form was not maintainable for the reasons that the plaintiff-society had not asked for possession of the management of the School. I would add that the plaintiff-society should have also prayed for possession of the School building because it claimed ownership thereof and the possession of the same was not with it but with the defendant.
6. The learned Counsel for the appellant finally urged that the learned Additional District Judge should not have dismissed the suit after coming to the conclusion that it was not maintainable in the present form but should have remanded the same to the trial Court with a direction that the plaintiff should be given an opportunity to amend the plaint so as to bring it in the proper form. In this connection he relied on the cases of Mst. Rukhmabai v. Laxminarayan : AIR 1960 SC 335 and Bhagat Singh v. Stanam Transport Co. Ltd. : 1960-62 PunLR 924 : AIR 1961 Punjab 278, which no doubt support his viewpoint. The learned Counsel for the respondent had nothing to urge against this part of his prayer. I also feel that the learned Additional District Judge instead of dismissing the plaintiffs suit straightway should have remanded it to the trial Judge with the necessary directions.
8. On the other hand, learned Counsel for respondent Nos. 1 & 2 contended that the suit of the appellants could not have been decreed and the findings of the First Appellate Court are correct for the reason that a mere suit for declaration was not maintainable. No relief of possession was sought and in the absence of such a prayer, the suit could not have been decreed. Reliance was placed on a judgment of the Supreme Court in Mehar Chand Das v. Lal Babu Siddique and Ors. : 2007 (2) RCR (Civil) 628 : AIR 2007 SC 1499 (SC).
9. I have thoughtfully considered the rival contentions and have perused the record.
10. The learned First Appellate Court determined the following questions in favour of the appellants:
1. regarding ownership of the suit property;
2. regarding limitation; and
3. regarding validity of the sale deed.
11. However, it came to the conclusion that the appellants were not in possession of the suit property. Respondent Nos. 1 and 2 have not challenged the judgment of the First Appellate Court and, therefore, the findings on the aforementioned aspects of the matter qua the parties have become conclusive. The appellants are merely aggrieved by the dismissal of their suit on the ground that the relief of possession not sought by them in the suit which was for mere declaration of ownership, should have been granted to them by permitting them to amend the plaint.
12. Section 34 of the Specific Relief Act, 1963 (for short, 'the Act') reads as under:
Direction 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.
13. A perusal of the afore-quoted provisions makes it abundantly clear that any person, who is entitled to any legal character or any right to any property, which is sought to be denied by the other party, may institute a suit for declaration and the Court may grant such relief, but the proviso to Section 34 of the Act further lays down that no such declaration shall be granted where such a person approaches the Court being able to seek further relief than a mere declaration of title, omits to do so.
14. Their Lordships of the Supreme Court in Mehar Chand Das v. Lal Babu Siddique and Ors. AIR 2002 SC 1499 (supra), while further relying upon an earlier judgment in Vinay Krishna v. Keshav Chandra and Anr. AIR 1993 S.C. 957, held that 'if the plaintiff had been in possession, then the suit for mere declaration would be maintainable; the legal corollary whereof would be that if the plaintiff is not in possession, the suit for mere declaration would not be maintainable.'
15. Consequently, the plea of the appellants deserves to be rejected and it has to be held that in the suit for mere declaration, relief of possession could not have been granted, rather, the same was not maintainable.
16. The appellants, at this stage, tried to assail the finding of possession which was recorded against them by the learned First Appellate Court. However, the revenue record shows that the suit property had been sold in small chunks and various other persons were recorded as owners in possession, but nowhere the appellants were shown in possession thereof. Except for the bald statement of appellant No. 1 who appeared as FW1, there is no other evidence to show the factum of possession in their favour. In this view of the matter, I am of the considered opinion that for the reasons that a pure finding of fact regarding possession has been returned by the learned First Appellate Court which is not unjustified and further since the appellants had not been able to show any material either before the First Appellate Court or before this Court that they were in possession of the suit property, the finding determined by the First Appellate Court does not warrant any interference and in view of the fact that the possession has been established to be that of respondent Nos. 1 & 2 and the suit of the appellants was for mere declaration, the First Appellate Court rightly concluded that the mere suit for declaration without further prayer for possession was not maintainable.
17. The question of law which arises for determination by this Court is as to 'whether suit for declaration simpliciter is maintainable, when a person is not in possession and in which suit, the possession has not been prayed for?'
18. The question has been answered in the negative for the reasons mentioned above.
19. The appeal is dismissed being without any merit.