JUDGMENT [ENTITY], J.
Introduction:
1. In this regular appeal filed against the judgment and decree in [CASE NUMBER], dated 10-7-1984 passed by the Court of the Additional Chief Judge-cum-I Additional Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad, the plaintiffs are the appellants. The suit was filed for declaration and injunction in relation to the open land admeasuring Acs.5.00 with compound wall known as Narayan Bagh bearing Municipal No. 18-9-30, Chandrayana Gutta, Keshavagiri, Bandlaguda Village. The suit was disposed of by the Trial Court observing that the suit as laid for declaration and injunction is not maintainable and that the plaintiffs ought to have filed the suit for declaration of their title to the suit property.
2. The appeal raises two questions: (1) Whether the suit for negative declaration that Defendants 1 and 2 (Respondents 1 and 2 herein) have no interest, claim or right either joint or otherwise as to ownership and/or possession of the suit schedule property? and (2) Whether the earlier litigation between the parties as well as litigation in relation to the property is conclusive that Defendants 1 and 2 have no right joint or otherwise as to ownership and/or possession over the suit schedule property? These questions can be considered after briefly referring to the pleadings, evidence on record and the judgment of the Trial Court.
Facts in brief
3. The parties are referred to herein by their status in the suit. The ancestor of the plaintiffs is one [ENTITY] who died in 1878 A.D. He had lot of properties given to him as a Crown grant as well as other family properties which were not Crown grant. He had two sons, [ENTITY] and [ENTITY]. The first son of [ENTITY] died in 1896 A.D. leaving behind three sons. The other son of [ENTITY] had four sons. The genealogy chart below will reveal the relationship between the parties.
4. As seen from above, Plaintiffs 1 to 8 and Defendants 3 and 4 belong to the branch of [ENTITY] ([ENTITY]) and Defendants 1 and 2 allegedly belong to the branch of [ENTITY], the other son of [ENTITY]. The plaintiffs alleged that Defendant No. 1 who claims to be the daughter of [ENTITY] is not her daughter, because, according to them, Sri [ENTITY], the third son of [ENTITY] though married to [ENTITY] died issueless. Be that as it may, as we proceed with the narration, whether or not Defendants 1 and 2 can claim lineage to [ENTITY] branch is not a contentious issue.
5. The Crown grant properties of [ENTITY] are not joint family properties nor ancestral properties. A Crown grant stands revoked on the death of the grantee and even if there is a fresh grant in favour of the legal heir of the original grantee, the same in law is a fresh grant and no succession arises on the death of original grantee. After the death of [ENTITY], [ENTITY] was given a Crown grant. But the case in the plaint pertains to only, the family properties owned by [ENTITY] and it is not concerned with the Crown grant properties given to [ENTITY] after the death of [ENTITY]. It is also to be noted that, as alleged by the plaintiffs, [ENTITY], the other son of the original ancestor pre-deceased [ENTITY] (who lived up to 85 years) and all the four sons of [ENTITY] were issueless. In view of this, all the properties which fell to the share of [ENTITY] and his sons were shared by the plaintiffs and Defendants 3 and 4, who belong to the branch of [ENTITY]. Defendants 1 and 2 have no relation with Sri [ENTITY] and [ENTITY] and, therefore, they cannot claim to belong to [ENTITY]'s branch.
6. It was alleged that Archaka of Sri [ENTITY] filed a suit under [SECTION] of the [ACT] ('[ACT]' for brevity) for framing a scheme in relation to the properties of the temple as well as other properties belonging to [ENTITY], which the Archaka claimed to belong to the temple. The suit which was originally filed in this Court, but later, on transfer, was tried by the Court of the II Additional Judge, City Civil Court, Hyderabad, as [CASE NUMBER]. Pending the suit, an Advocate Commissioner appointed to take possession of the open land of Narayan Bagh property, allegedly took physical possession of the property and filed a report in the Civil Court. A preliminary decree was passed in the scheme suit by the Court of the n Additional Judge. Aggrieved by the same, Plaintiffs 1, 2, 6 to 8 and others filed an appeal before this Court being [CASE NUMBER]. The same was allowed by judgment dated 18-7-1968 by a Division Bench of this Court (comprising their Lordships [ENTITY] and [ENTITY], JJ; as their Lordships then were). The decree of the Trial Court in [CASE NUMBER] insofar as it inter alia relates to 40 Bighas of land (the land in the present suit) and other lands was set aside. The Court also observed, the land which was excluded from the preliminary decree in the scheme suit shall be ascertained in the final decree proceedings.
7. After disposal of [CASE NUMBER] by this Court, Defendants 1 and 2 herein initiated pro inter se suo proceedings by filing [CASE NUMBER] in [CASE NUMBER] seeking restoration of possession which was allegedly taken by the Advocate-Commissioner on 29-2-1963. The Trial Court allowed the said application on 31-3-1981. Aggrieved by the same, the plaintiffs herein filed a civil revision petition being [CASE NUMBER]. This Court by an order dated 30-10-1981 dismissed the revision petition directing restoration of possession of 40 Bighas to Defendants 1 and 2 to be enjoyed by them jointly with the plaintiffs, subject to rights of each party being adjudicated in an appropriate suit.
8. The other suit being [CASE NUMBER] filed by Defendants 1 and 2 for partition of the family properties of [ENTITY]. The suit was in relation to the various properties which were allegedly owned by [ENTITY] and [ENTITY]. Narayan Bagh property was not subject-matter of the suit. The suit was opposed by the plaintiffs inter alia alleging that Defendants 1 and 2 have no relationship with Sri [ENTITY] and his wife [ENTITY], that Sri [ENTITY] had no daughter by name [ENTITY], that the properties are Crown grant of [ENTITY] and, therefore, [ENTITY] could not have claimed the properties. The suit was dismissed by the Trial Court holding that [ENTITY] was not the daughter of late Sri [ENTITY] and [ENTITY] and that Defendants 1 and 2 (plaintiffs in [CASE NUMBER]) cannot set up any claim to the property.
9. The judgment and decree in [CASE NUMBER] dated 8-8-1972 dismissing the partition suit of Defendants 1 and 2 was subject-matter of an appeal in [CASE NUMBER] before this Court. This Court reversed the finding of the Trial Court that [ENTITY] is not the daughter of Sri [ENTITY] and [ENTITY], but ultimately affirmed the judgment and decree of the Trial Court in [CASE NUMBER] holding that Defendants 1 and 2 are not entitled to any share in the suit properties nor they can claim partition. Defendants 1 and 2 carried the matter to the Supreme Court by way of Appeal being [CASE NUMBER]. The matter was compromised before the Apex Court and the Civil Appeal was disposed of in terms of the compromise.
10. After disposal of the pro inter se suo proceedings by this Court in favour of Defendants 1 and 2, the plaintiffs filed a suit in accordance with the observations made by this Court seeking a negative declaration and also injunction. It is also alleged that possession of the suit schedule land had been with the plaintiffs and that the Commissioner appointed in [CASE NUMBER] did not take possession of the land from Defendants 1 and 2.
11. The suit was opposed by Defendants 1 and 2 by filing written statement. The written statement, though lengthy, except denying the plaint averments/allegations and raising certain technical pleas as to Court fees - as is expected from the defendants in a partition suit; did not bring about the details of the relationship with [ENTITY]'s branch and the basis of their right to claim partition. It was, however, alleged that the suit for negative declaration is not maintainable. The litigation in relation to the suit schedule property and other family properties of [ENTITY] as well as [ENTITY] were not specifically denied except stating that all these aspects are matters of record. It was, however, categorically stated, the first defendant is entitled to half share in the property and all other family properties that have been left out from the schedule. It was also alleged that the Advocate Commissioner took possession of the suit schedule property from the second defendant and a panchanama was also conducted on the date of taking possession.
12. The allegations in the plaint and the written statement led to the framing of the following issues by the Trial Court.
1. Whether the plaintiff is entitled for declaration in respect of suit schedule property?
2. Whether the plaintiff is entitled to injunction against the defendants?
3. Whether the plaintiff has no cause of action?
4. To what relief ?
13. The Trial Court in a short judgment considered all the issues together and held that the plaintiffs are not entitled for the relief of negative declaration and perpetual injunction and that they have to file a separate suit for declaration of their title to the suit schedule property. The Trial Court considered the order/judgment of the Apex Court marked as Ex.A4 as irrelevant for deciding any issue framed in the suit. Be it noted that though Defendants 1 and 2 filed a lengthy written statement did not lead any evidence and they remained ex parte. The plaintiffs on their part examined the first plaintiff, Sri [ENTITY] as P.W.1 and marked Exs.A1 to A6. Exs.A1 and A2 are the panchanama and report of the Commissioner in [CASE NUMBER]. Ex.A3 is the certified copy of the judgment of this Court in [CASE NUMBER] and Ex.A4 is the certified copy of the order of the Supreme Court in [CASE NUMBER]. Ex.A5 is the copy of the order in [CASE NUMBER]. Ex.A6 is the genealogy table filed by the plaintiffs.
Submissions
14. In this appeal, Sri [ENTITY], learned Counsel for the appellants/plaintiffs submits that Defendants 1 and 2 never claimed the suit schedule property as belonging to [ENTITY] or [ENTITY] in the earlier suit filed for partition. Therefore, they cannot set up any claim either to seek partition or claim right over the property. He also submits that when Defendants 1 and 2 filed an application in pro inter se suo proceedings claiming possession of the property allegedly based on title, it is permissible for the plaintiffs to file the suit for negative declaration and as they have been in possession of the property since long can also seek perpetual injunction against Defendants 1 and 2. He placed reliance on the proceedings in the scheme suit filed by Sri [ENTITY] in which this Court, in the appeal, excluded the suit schedule property from the properties of the temple. Lastly, he would submit that in view of the compromise entered into between the plaintiffs and Defendants 1 and 2 before the Supreme Court, all the disputes in relation to the property were finally and fully settled on payment of Rs. 25,000/- and, therefore, there is no bar for granting the relief of negative declaration.
15. Sri [ENTITY], learned Counsel for respondents/Defendants 1 and 2, submits that the compromise entered into between the parties before the Supreme Court is in relation to the property which was scheduled in the earlier suit and, therefore, the assumption that the suit schedule property is also to be included in Ex.A4 order is erroneous. He also submits that in the scheme suit, Defendants 1 and 2 are not the parties and, therefore, the finding that the suit schedule property was excluded from the properties of the temple does not in any manner bind Defendants 1 and 2. He also would submit that in view of the finding of this Court in [CASE NUMBER] that Sri [ENTITY] and [ENTITY] had a daughter by name [ENTITY], Defendants 1 and 2 are joint owners and joint possessors of the suit schedule property and there cannot be any negative declaration against joint owners of the property.
Points for consideration
16. As already noticed, the following two points would arise for consideration.
(1) Whether the suit for negative declaration that Defendants 1 and 2 (Respondents 1 and 2 herein) have no interest, claim or right either joint or otherwise as to ownership and/or possession of the suit schedule property?
(2) Whether the earlier litigation between the parties as well as litigation in relation to the property is conclusive that Defendants 1 and 2 have no right joint or otherwise as to ownership and/or possession over the suit schedule property?
17. For the sake of convenience, I will consider the second point first. There are two earlier suits concerning or in relation to the suit schedule property in the present suit. The first suit was filed by the Archaka of Sri [ENTITY] under [SECTION] of the [ACT]. The same was decreed. On appeal, this Court, in [CASE NUMBER] set aside the preliminary decree of the Trial Court to the extent of Narayana Bagh property and the appeal filed by Appellants 1, 2, 6 to 8 and others was allowed to that extent. In the judgment of the Division Bench - Ex.A3 it was clearly observed that 40 Bighas of land in Keshavagiri does not belong to the temple. Curiously, Defendants 1 and 2 who did not deny any knowledge of these two suits did not take any steps when the suit schedule property was included in the scheme suit filed by the temple. Therefore, it is reasonable to draw an inference that [ENTITY] or Sri [ENTITY] or the daughter of [ENTITY] (Defendant No. 1) never had any interest in Narayan Bagh property which is the suit schedule property in these proceedings. Necessary averments are made in relation to this subject in paragraphs 4 to 7 of the plaint. In the written statement, except referring to the proceedings in [CASE NUMBER], all other averments are not denied by Defendants 1 and 2.
18. Strong reliance is placed by the learned Counsel for Respondents/Defendants 1 and 2 on the judgment of this Court in [PRECEDENT], to contend that though Defendants 1 and 2 did not appeal against the preliminary decree in [CASE NUMBER], they initiated pro inter se suo proceedings to get back possession which was allegedly taken by the Advocate Commissioner from them under Exs.A1 and A2. This, learned Counsel would urge, is a strong indication to show that Defendants 1 and 2 are joint owners of the suit schedule property. Ex.A1 is a report filed by the Advocate Commissioner before the Court of the U Additional Judge, City Civil Court in [CASE NUMBER] informing the Court that he has taken possession of Narayan Bagh property - item 10 of the plaint A schedule in the presence of mediators and Police Constables and that in spite of issuing notice, none responded. He also submitted a report Ex.A2 to the said Court with reference to the allegations contained in the affidavit of one Sri [ENTITY] (Appellant No. 3 in [CASE NUMBER] and Defendant No. 3 in [CASE NUMBER]). Ex.A1 and A2 nowhere mention that the Advocate Commissioner took possession of the property either from Defendant No. 1 or Defendant No. 2. It is, however, submitted by both the Counsel that under the original of Ex.A1 panchanama, the second defendant made an endorsement as "under protest". This made this Court, while dismissing [CASE NUMBER], to direct as under:
This property even to this day ontinues to be in the possession of the Receiver although its actual possession is in the hands of the present revision petitioners as lessees. No third party interests had intervened. In fact. I find that these revision petitioners who are holding the property of 40 bighas from the Receiver cannot legally make any complaint against the present order. All that I.A. order does is to dispossess the Receiver and to give back possession to the I. A. petitioners from whom Receiver took possession. The revision petitioners cannot complain at all. In view of the paramount duty of the Court to protect the rights of the person from whom the Receiver has taken possession which was subsequently found to be unjustified, I dismiss this application with costs. The result of this order would only be to direct the restoration of the possession of the 40 bighas to [ENTITY] and [ENTITY] to be enjoyed by them jointly with the present petitioners in this C.R.P. subject to the rights of each party to be adjudicated upon in a properly brought suit as and when it is so brought.
19. Both the learned Counsel placed strong reliance on the above. The Counsel for respondents/Defendants 1 and 2 contends that Defendants 1 and 2 are deemed to be in joint possession of the property and the learned Counsel for the appellants contends that the order passed by this Court in [CASE NUMBER] is subject to the suit that might be filed by the other party. Having regard to the observations made by the Court in pro inter se suo proceedings and having regard to the evidence on record, especially when there is no evidence on behalf of the defendants that the Commissioner handed over possession pursuant to the orders of this Court in [CASE NUMBER], I must hold that possession was never restored to Defendants 1 and 2. In the absence of any evidence as to actual possession by Defendants 1 and 2, it has to be held that they were never in possession of Narayan Bagh property. This will be clear by referring to the suit filed by Defendants 1 and 2. As already noticed, [CASE NUMBER] was filed for partition by Defendants 1 and 2 claiming to belong to the branch of [ENTITY]. The suit was dismissed. The appeal to this Court being [CASE NUMBER] was also dismissed. But the finding of the Trial Court that [ENTITY] is the daughter of Sri [ENTITY] and [ENTITY] was reversed. It is for these reasons that Sri [ENTITY] did not make any argument in support of the allegation in the plaint that Defendants 1 and 2 and [ENTITY] do not belong to the family of Sri [ENTITY] and [ENTITY], Be that as it is, against the judgment of this Court in [CASE NUMBER], Defendants 1 and 2 filed a Civil Appeal before the Supreme Court. The same was disposed of by the Apex Court by a judgment dated 25-3-1980. The same was marked as Ex.A4 in the proceedings. It is necessary to extract the entire order which reads as under:
We have heard Counsel for the parties and the parties have compromised this case on the following terms:
1. That the defendants/respondents including legal representatives of Respondent No. 4 shall pay a sum of Rs. 25,000/- to the petitioners/plaintiffs in full and final satisfaction of the claim of the plaintiffs/appellants for the share claimed by them in the suit from which this Appeal arises.
2. That the said amount of Rs. 25,000/- shall be paid in five equal instalments, each of Rs. 5,000/- starting from 1st May, 1980, and subsequent instalments will be paid on the first of every succeeding month until it is fully liquidated.
3. That the heirs of Respondent No. 4 are brought on record and the Advocate-on-Record undertakes to file his vakalat within a month from today.
4. That parties will bear their own costs throughout.
5. That in case the amount of Rs. 25,000/- is not paid to the plaintiffs by the respondents, the appeal shall stand decreed to the extent of Rs. 25,000/- with costs throughout.
The appeal is disposed of in terms of the compromise and the compromise shall form part of the decree.
20. As seen from Clause (1) of the terms of compromise as above, it was agreed that the plaintiffs and their legal representatives shall pay a sum of Rs. 25,000/- to Defendants 1 and 2 in full and final satisfaction of the claim of Appellants 1 and 2 for the share claimed by them in the suit. It is not denied before me that in the suit for partition filed by Defendants 1 and 2, all the properties were shown in the schedules to the plaint and Narayan Bagh property which is alone the suit schedule property in this suit was omitted. Therefore, as a necessary corollary, it must be presumed that with the delivery of the judgment by the Apex Court on 25-3-1980, the rights, claims, liabilities and interest of Defendants 1 and 2, if any, in the suit schedule, property and all the properties left behind by [ENTITY] and [ENTITY] stood extinguished. As rightly contended by the learned Counsel for the appellants, in the absence of any evidence on record let in by Defendants 1 and 2 that possession was restored to them pursuant to the order passed by this Court, the order passed by this Court in [PRECEDENT] (supra) is of no assistance to Defendants 1 and 2. Indeed, this Court, in [CASE NUMBER] observed that the restoration of possession of Narayan Bagh property to Defendants 1 and 2 would only mean that they would enjoy the same jointly and the plaintiffs and such enjoyment will be subject to the rights of each party to be adjudicated upon in a properly brought suit as and when it is brought. This Court decided the revision petition presumably for the reason that long prior to the compromise before the Supreme Court, Defendants 1 and 2 filed [CASE NUMBER]. The order of this Court in [CASE NUMBER], in my considered opinion, does not in any manner operate against the claim of the plaintiffs in this suit. At best, it is only a circumstance which has a bearing when the relief of perpetual injunction is considered by the Court.
21. Accordingly, I hold on the second question that the various proceedings starting from [CASE NUMBER] filed by Sri [ENTITY] and [CASE NUMBER], the partition suit filed by Defendants 1 and 2, are relevant evidence for deciding the facts in issue. The Trial Court was clearly wrong in observing that the entire proceedings including Ex.A4, the order of the Supreme Court is irrelevant to decide the issue. In view of this, I hold that the plaintiffs are entitled to seek declaration and injunction from the Civil Court.
22. The long title of the [ACT] would reveal that it is an Act to define and amend the law relating to certain kinds of specific relief (underlining is mine). Therefore, the various remedies by way of specific relief provided under the said Act are not exhaustive. It is settled proposition of law. [SECTION] of the Act, which replaced [SECTION] of the [ACT], reads as under:
34. Discretion 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.
23. Who can seek declaratory relief ? The statute as above provides for a declaratory relief - (i) to any person entitled to any legal character or (ii) to any person entitled to any right. The legal character or right should be in relation to any property and the term property is used in the broadest term. Not only movable and immovable property, but all incorporeal or intangible rights like claim to an office, privilege, status, position and anything which the law vests in the plaintiff, are also within the scope of the term "legal character". Against whom a suit for declaration can be filed? A person can claim a declaration as to legal character or right - (i) against any person denying his title to such character or right; and/or (ii) against any person interested to deny his title to legal character or right. Therefore, a suit for declaration can be filed not only against a person denying the legal character or right of the suitor but also against any person who is likely to deny by reason, of some interest, that is to say, against a person who is interested to deny.
24. Keeping in view the scope of [SECTION] of the [ACT], there cannot be any doubt that by reason of the judgment of this Court in [CASE NUMBER], Defendants 1 and 2 come within the category of persons "interested to deny" and a suit under [SECTION] of the Act is maintainable. The plaintiffs sought for a declaration that Defendants 1 and 2 have no interest, claim or right either joint or otherwise in the suit schedule property. I fail to understand as to why the relief of negative declaration cannot be granted by the Civil Court?
25. There are reasons more than one to come to such a conclusion that in a suit for negative declaration that defendants have no interest or title is maintainable. [SECTION] of the [ACT] had seven illustrations. Illustrations (a), (c) and (f) are relevant and read as under:
(a) A is lawfully in possession of certain land. The inhabitants of a neighbouring village claim a right of way across the land. A may sue for a declaration that they are not entitled to the right so claimed.
(c) A covenants that if he should at any time be entitled to property exceeding one lakh of rupees, he will settle it upon certain trusts. Before any such property accrues, or any persons entitled under the trusts are ascertained, he institutes a suit to obtain a declaration that the covenant is void for uncertainty. The Court may make the declaration.
(f) A Hindu widow in possession of property adopts a son to her deceased husband.The person presumptively entitled to possession of the property on her death, without a son, may, in a suit against the adopted son, obtain a declaration that the adoption was invalid.
26. Illustration (a) given under [SECTION] of the old Act is adequate answer to the observations made by the Trial Court that the relief of negative declaration cannot be granted to the plaintiffs. The plaintiffs, by reason of the judgment of this Court in [CASE NUMBER] as well as by reason, of the judgment of the Supreme Court (Ex.A4), are entitled to seek either declaration that they are absolute owners of the suit schedule property or they can also seek the relief of negative declaration that Defendants 1 and 2 have no right to claim any title or possession to the suit schedule property. Whatever the relief granted, the same amounts to both as a declaration and also negative declaration, for when a Court declares that the plaintiffs are absolute owners and possessors of the property, the same negatively means that the defendants or any others do not have any right over the property which vests in the plaintiffs. Under [SECTION] of the [ACT], the Civil Court shall have jurisdiction to try all the suits of civil nature except the suits whose cognizance by the Civil Court is expressely or impliedly barred. It is settled by a catena of decisions of the Apex Court that the ouster of the jurisdiction of the Civil Court could not be presumed lightly. There should be either express ouster of the jurisdiction of the Civil Court or the provisions of the statute are such that by impliedly the Civil Court's jurisdiction is ousted. As per example, when a statute creates independent adjudicatory forum or a Tribunal, it is implied that the jurisdiction of the Civil Court is barred. A reference may be made to the judgment of the Supreme Court in [PRECEDENT], , wherein it was observed:
The expansive nature of [SECTION] is demonstrated by use of phraseology with positive and negative. The earlier part opens the door widely and latter debars entry to only those which are expressly or impliedly barred. The two explanations, one existing from inception and latter added in 1976 bring out clearly the legislative intention of extending operation of the section to such religious matters where right to property or office is involved irrespective of whether any fee is attached to the office or not. The language used is simple but explicit and clear. It is structured on the basic principle of a civilised jurisprudence that absence of machinery for enforcement of right renders it nugatory. The heading which is normally key to the section brings out unequivocally that all civil suits are cognizable unless barred.
27. For the above reasons, I must hold that the suit for the relief of negative declaration is maintainable and the plaintiffs shall prove their case that Defendants 1 and 2 have no manner of right, interest, title or possession over the suit schedule property.
28. In the result, for the above reasons, the appeal is allowed. The judgment of the Additional Chief Judge-cum-I Additional Special Judge for SPE & ACB Cases, Hyderabad in [CASE NUMBER] is reversed and a decree shall issue as prayed for in the suit. In the facts and circumstances of this case, there shall be no order as to costs.