Kashi Prasad Vs. Banshidhar and Others - Court Judgment

Excerpt:
- - the declaratory decrees can well be made by the courts under the general provisions of cpc as section 9 or order 7 rule 7 of code.r.b. dixit, j. 1. appellant/plaintiff had filed a civil suit no. 105-a/91, new no. 50-a/94, in the court of ist civil judge, class ii, morena for declaration, permanent injunction, mesne profit and possession to the effect that he was by virtue of temporary partition, already in possession of survey no. 522 situated in village imliya. the case of respondents/defendants was that this portion of land or the share of plaintiff, was surrendered to them and thus, they were in exclusive possession of the entire land and became it's absolute owner.2. the trial court vide judgment dated 2-3-1995, partly decreed the suit to the extent of 1/7th share and mesne profit at the rate of rs. 4000/- per annum and also ordered for delivery of possession. however, in first civil appeal no. 102-a/98 by the impugned judgment, the learned first appellate court reversed the findings and dismissed the suit of plaintiff, against which, this second appeal has been admitted on following substantial questions of law:whether, the suit of plaintiff can be dismissed on the technical ground of non seeking of specific share in the disputed property which can be allowed under order 7 rule 7 of cpc ?3. since both the courts below found that there was no partition between the parties, however, the averment of defendants regarding surrender of share by plaintiffs in their favour, was also not found proved and thus, there is concurrent finding regarding joint 1/7th share of plaintiff in the disputed land. in view of this concurrent finding, the learned counsel for the appellant has submitted that in the relief clause of the plaint, it was specifically pleaded that the court may grant any other relief to which, they are entitled. in the circumstances, their 1/7th share in the property should have been declared by the appellate court also. however, the appellate court declined to grant the relief on the basis that there is no pleading regarding declaration for 1/7th share in the property.4. it has been observed in division bench decision of this court in thecase of ramnarayan and another v. mangaram radheshyam, reported in 1979 jlj 51, that the court's power to grant declaratory decrees is not limited to the terms of section 34 of specific relief act. the declaratory decrees can well be made by the courts under the general provisions of cpc as section 9 or order 7 rule 7 of code. the exercise of jurisdiction to grant such declaratory reliefs beyond the terms of that section shall depend upon the facts of each case. such a declaration may be granted when it is essential as a step to a relief in some other case or when a declaration in itself is a substantial relief and has immediate coercive effect. the courts must exercise sound judgment while granting or refusing such reliefs. danger to involve the opponent in vexatious litigation should be carefully avoided.5. in the case of bhoniram v. rajubai, reported in 1979 mplj sn 14, where the plaintiffs had sued for declaration of exclusive title while the facts proved entitling the plaintiffs only to a share, it was pointed out that he could be granted declaration to the share by taking recourse to order 7 rule 7 of cpc.6. the learned counsel for the respondents on the other hand relied upon the decisions of this court in the case of sujan singh v. lal singh and others, reported in 1993 jlj 552 and dayaram v. kalicharan, reported in 1993 volume 2 mpwn 74, and submitted that since, the plaintiffs case was that of exclusive possession on the basis of previous partition while, this case was not proved and therefore, granting relief to the extent of his share, will amount to carving out a new case, in favour of plaintiff.7. i am of the considered opinion that where, both the courts below have recorded finding on the basis of evidence, available on record that plaintiff has 1/7th joint share in the property, the learned appellate court should not have refused the same on technical ground that it was not specifically sought for in the relief clause of plaint, particularly, in order to avoid further vexatious litigation between the parties, the first appellate court should have exercised discretion in the interest of justice.8. for the reasons aforesaid, this appeal is partly allowed and the judgment and decree of first appellate court is modified and it is declared that the plaintiff is entitled to 1/7th share in the disputed property.9. second appeal partly allowed.