Shinder Pal Singh and anr. Vs. Karam Singh and ors. - Court Judgment

Excerpt:
property - suit for title - maintainability - appellants filed suit for declaration of title over suit property - appellants were not in possession of suit property at the time of filing suit - suit dismissed - appellant filed appeal - appeal dismissed on ground that suit is not maintainable due to non-inclusion of prayer for possession of suit property - hence, present appeal - whether suit is maintainable? - held, revenue record shows that suit property was sold in small chunks and possessed by other persons who were recorded as owners in possession - however, appellant was not shown as owner of suit property as well as he was not found in possession of same - respondents possession over suit property proved - in such circumstances, suit for declaration of title without further prayer for possession of suit property was not maintainable - accordingly, appeal dismissed and impugned order upheld - hindu law -- custom: [vijender jain, c.j., m.m. kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of ancestral property - punjab and haryana - held, in respect of state of punjab by virtue of punjab amendment act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. in punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by hindu law except to the extent it is regulated by sections 6 and 30 of the hindu succession act. in haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. parties can fall back upon hindu law in case they fail to establish that rule of decision is custom. therefore, in haryana both under hindu law and the customary law, the alienation would be open to challenge. custom was given precedent over uncodified hindu law presumably for reason that custom has been consistently replacing the hindu law. however, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst jats of punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. it was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. accordingly, the punjab custom (power to contest) act, 1920 (act no.2 of 1920) was enacted. the hindu succession act was extended to the state of punjab. act 2 of punjab act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. a further provision was made by section 3 that hindu succession act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. whereas section 4 declared that hindu succession act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the succession act was to come into force. in other words, act, no.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. it also preserved the rights of any alienation or appointment of an heir made by a family. after section 7 was inserted in act of 1920 by the punjab amendment act of 1973 right of contest being contrary to custom had been totally effaced and taken away. therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after january 23, 1973. in haryana, the situation as enunciated by act no.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to punjab as brought by amendment act of 1973, had been enacted although right to pre-emption has been substantially abolished in haryana also. no steps even have been taken in that regard. therefore, situation in haryana have to be regarded as it existed under act no. 2 of 1920. hindu succession act,1956[c.a.no.30/1956] -- sections 6 & 30: [vijender jain, c.j., m.m.kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of coparcenary property - law laid down by full bench in joginder singh kundha singh v kehar singh dasaundha singh [air 1965 punjab 407] and pritam singh v assistant controller of estate duty, patiala [1976 punj lr 342] -whether there is any conflict? - held, the basic controversy in the full bench decision of joginder singhs case was regarding constitutional validity of section 14 of hindu succession act and as to whether it infringes article 14 of constitution. it was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. the full bench held that section 14 of hindu succession act postulates that estate held by a hindu female before enforcement of succession act either by inheritance or otherwise, was enlarged and on date of enforcement of succession act, she became a full owner. likewise, if she has inherited any estate after the commencement of the act, she was to be regarded as absolute owner rather than a limited owner. consequently, the limitations on power of alienation automatically vanished. this was the necessary result of the provisions made in section 14 of the act. the full bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. however, it noticed section 30 and observed that it only deals with power of his share in coparcenary property by will, which prior to enforcement of the act, he had no right to do. the only provision made in respect of male proprietor regarding alienation of property was his power of alienation by will. in so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the act. likewise, other restriction on alienation other than disposal by will also continued. the full bench, thus, recognized the superior right of hindu females by virtue of section 14 and upheld the provision as intra vires. the argument that reversioners have ceased to exist after enactment of provisions of section 14 of succession act, was rejected as there was no provision pointed out to that effect. the proposition laid down by the full bench in pritam singhs case was that the hindu succession act has not abolished joint hindu family with respect to rights of those who were members of mitakshara coparcenary, except in the manner and to the extent mentioned in sections 6 and 30 of the act, this statement should also imply, though it does not say so expressly, the succession act to this extent does not affect the rights of the members governed by dayabhaga coparcenary. the full bench in pritam singh;s case expressly noticed the judgment of earlier full bench in joginder singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by customary law and constitutional validity of section 14 of hindu succession act. thus there is no real conflict between the two full bench judgments. both the full bench judgments have been delivered on the assumption that joginder singhs case dealt with question of alienation whereas pritam singhs case had decided the question concerning succession. even on fact in joginder singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in pritam singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. in pritam singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. therefore, there was no question of alienation in pritam singhs case. - 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. opd 4. whether the suit is bad for non-joinder for the necessary parties? his failure to do so vitiates his suit.ordermahesh 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 deed4. on the pleadings of the parties, the following issues were framed:1. whether the plaintiffs are entitled to declaration as prayed for?opp2. whether the suit is not maintainable in the present form?opd3. whether the suit is within time?opd4. whether the suit is bad for non-joinder for the necessary parties?opd5. whether the plaintiffs are estopped by their act and conduct to file the present suit?opd6. 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; and3. 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.

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.