Case: Executive Officer, Arulmigu Chokkanathaswamy Koil Trust Virudhunagar Vs. Chandran

of Janaki Ammal. Now the said Janaki Ammal sold that property to third person. I have not initiated any action to include Janaki Ammal as a party to this suit.”29. In view of the statement of the plaintiff himself that Survey No. 188/2 is in the name of Janaki Ammal, the observations of the High Court that no documentary evidence was filed for the purpose of establishing that Survey No. 188/2 stands in the name of Janaki Ammal are erroneous and misplaced.When Plaintiff himself admitted that Survey No. 188/2 is recorded in the name of Janaki Ammal, there was no basis for the High Court to come to conclusion that plaintiff is entitled for the area apart from 5 acres and 10 cents, which belonged to the Temple.20. As noted above, one of the issues framed, as to whether the suit is bad for non-joinder of necessary party. The said issue was answered against the plaintiff and it was held that suit is bad for non-joinder of Janaki Ammal a necessary party, whose name was recorded against Survey No.188/2. Without adverting to the said findings of the trial court and the Appellate Court, the High Court has erroneously decreed the suit of the plaintiff.31. There is one more reason due to which the judgment and the decree of the High Court cannot be sustained. The trial court in its judgment has categorically recorded findings that the Defendant No. 1 is in possession of the suit property. In para 10 following findings have been recorded by the trial court:"From the oral depositions and exhibits produced on behalf of defendant 1, it is clearly found that the suit property belonged to defendant 1 Arulmigu Chokkanatha Swamy Temple and it is in its possession for a long time continuously.”32. One of the submissions made before the courts below, on behalf of the defendant, was that the suit for mere declaration when the plaintiff was not in possession of the property, was not maintainable and hit by Section 34 of The Specific Reliefs Act, 1963, the plaintiff having not sought for recovery of possession.33. Trial court, after considering the aforesaid submissions, recorded its conclusions in para 14 which is to the following effect:"From the facts of above cited suit, plaintiff in this suit has prayed for the relief of declaration without seeking the relief of recovery of possession and under these circumstances, it is clearly seen that the plaintiff is not entitled to get such relief. Therefore, it is held that the suit is not maintainable legally.”34. Section 34 of the Specific Reliefs Act, 1963 provides as follows:"Section 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...... ..... ....”35. In the present case, the plaintiff having been found not to be in possession and having only sought for declaratory reliefs, the suit was clearly not maintainable and has rightly been dismissed by the trial court. In this context the reference is made to the judgment of this Court reported in Ram Saran and Anr. versus Smt. Ganga Devi, AIR 72 SC 2685, wherein para 1 & 4 following was stated:"1. This is a plaintiffs appeal by special leave. Ram Saran and Raghubir Saran, the plaintiffs are brothers. They jointly owned suit property with Chhabili Kuer widow of Lalita Prasad. After the death of Chhabili Kuer on February 8, 1971, Ganga Devi the defendant in the suit came forward as the legal representative of Chhabili Kuer and got the mutation effected in her name in the place of the deceased Chhabili Kuer. In 1958, the plaintiffs brought this suit for a declaration that they are the sole owners of the suit properties. They did not claim possession either of the entire or even any portion of the suit properties.4. We are in agreement with the High Court that the suit is hit by Section 42 of the Specific Relief Act. As found by the fact finding Courts, Ganga Devi is in possession of some of the suit properties. The plaintiffs have not sought possession of those properties. They merely claimed a declaration that they are the owners of the suit properties. Hence the suit is not maintainable.”36. The plaintiff, who was not in possession, had in the suit claimed only declaratory relief along with mandatory injunction. Plaintiff being out of possession, the relief of recovery of possession was a further relief which ought to have been claimed by the plaintiff. The suit filed by the plaintiff for a mere declaration without relief of recovery of possession was clearly not maintainable and the trial court has rightly dismissed the suit. The High Court neither adverted to the above finding of the trial court nor has set aside the above reasoning given by the trial court for holding the suit as not maintainable. The High Court in exercise of its jurisdiction under Section 100 C.P.C. could not have reversed the decree of the courts below without holding that the above reasoning given by the courts below was legally unsustainable. We, thus, are of the view that the High Court committed error in decreeing the suit.37. The decree of the High Court is also contradictory. The High Court has affirmed the findings that Defendant No. 1 is the owner of the Survey No. 188/1 and 188/3, whereas, by decreeing the suit for declaration and mandatory injunction the name of Defendant No. 1 is to be removed and replaced by plaintiff which is clearly erroneous and unsustainable.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]23. Learned counsel for the respondent has laid much emphasis on the Deed dated 29.7.1974 executed by Sundara Rajan in favour of Padmanabhan which has been brought on the record of paper book at page No.104. Learned counsel submits that said sale deed clearly proves the title of Padmanabhan over 2.79 acres of Survey No.188. The said deed has been filed by the plaintiff-respondent as Exhibit A14. The Deed dated 29.7.1974 has been specifically considered by the trial court in para 9 of the judgment. The trial court has in its judgment noticed that plaintiff came with the case in the plaint that suit property was inherited by Padmanabhan, however, he relied on Exhibits A12 to A14 with regard to which there was no pleading in the plaint. In his deposition, PW.1 admitted thatis correct to say that without disclosing this deed in the plaint I filed Exhibits A12 toWhen there was no pleading in the plaint regarding title of Padmanabhan by any other earlier deed except the claim of inheritance the trial court rightly discarded the Deed dated 29.7.1974. It is further relevant to note that plaintiffs application made for amendment of the plaint in the Appellate Court was considered and rejected by the Appellate Court. The evidence, with regard of which there is no pleading, has rightly been discarded by the trial court. Unless there is a pleading especially with regard to the source of title, the defendant of a suit has no opportunity to rebut such pleading thus an evidence with regard to which there is no pleading can not be relied by the plaintiff for setting up his title in a suit. Secondly, the deed dated 29.7.1974 referred to part of Survey No.188, whereas the suit was filed in 2007 by the plaintiff by which date the Survey No.188 was subdivided as 188/1, 188/2, 188/3. The deeds through which plaintiff claims title i.e. 28.8.1982, General Power of Attorney dated 31.10.2007 and sale deed dated 05.11.2007 do not refer to any subdivision. The plaintiff although amended the schedule property from part of Plot No. 188 as Survey No.188/3 but he failed to prove his title over Plot No.188/3. We, thus, do find that the trial court after considering the document dated 29.7.1974 held that plaintiff failed to prove his title.24. As noted above, there was categorical finding by trial court and First Appellate Court that Defendant No. 1 is the owner of Survey No. 188/1 (2 acres and 2 cents) and 188/3(2 acres and 88 cents). In the documentary evidence, filed by the defendant both the aforesaid sub divisions i.e. Survey No. 188/1 and 188/3 were recorded as the Temple property. In the property records maintained by the Hindu Religious & Charitable Endowment Department also Survey Nos. 188/1 & 188/3 were recorded in the name of Temple. Extract of the property registered was produced before the courts below which was believed.25. The High Court, in its judgment has also accepted that the Temples name is recorded for Survey Nos. 188/1 and 188/3. The High Court, in its judgment had held that total extent of 188/1 and 188/3 is only 5 acres and 10 cents, whereas, plot No. 188 is 7 acres 84 cents, hence, the plaintiff was entitled to the remaining extent. Following observations have been made by the High Court in ParaThe first defendant has put forth its right, title and interest over the suit property by virtue of Exs. B1 to B3. In Exhibits B1 to B3, it has been clearly stated that Sub Division Nos. 188/1 and 3 are standing in the name of the first defendant and its total extent is 5 acre 10 cents. It has already been pointed out that the total extent of original Survey No. 188 is 7 acre 84 cents. By virtue of Exs. B1 to B3, the first defendant is entitled to get only 5 acre 10 cents and in the remaining extent, the first defendant cannot claim any right, title and interest.Thus, the High court has also affirmed the findings of the courts below that Temple is entitled for Survey No. 188/1 and 188/3 i.e. 5 acres and 10 cents land. In spite of the aforesaid findings, the High Court proceeded to decree the suit on the basis of its reasoning, as given in paragraphs 16 & 18 of the judgment. Para 18 of the judgment of the High Court is asConsidering the fact that no document has been filed for the purpose of establishing that Survey No. 188/2 stands in the name of Janaki Ammal and also considering that the first defendant is not the absolute owner of the entire extent of old Survey No. 188 except 5 acre 10 cents of land, the Court can very well declare that the plaintiff is the owner of the suit property and since it is seen from Ex. A30 that the entire extent of old Survey number stands in the name of first defendant, the ancillary relief of mandatory injunction can also be granted in favour of the plaintiff.The High Court proceeded on the premise that no document has been filed for purpose of establishing that Survey No. 188/2 stands in the name of Janaki Ammal and further, the High Court proceeded that First Defendant being not absolute owner of the old Survey No. 188 except 5 acres and 10 cents, the plaintiff is the owner of the rest of the property.28. Thus virtually, the suit has been decreed by the High Court for Survey No. 188/2, whereas, Survey No. 188/2 was admittedly recorded in the name of Janaki Ammal, who was not impleaded in the suit nor any relief was claimed against the Janaki Ammal or for Survey No.188/2. In this context, it is useful to refer to the evidence of Plaintiff himself i.e. PW 1. PW 1, in his deposition before the court, has admitted the fact that Survey No.188/2 is in the name of Janaki Ammal and he has not initiated any action against her nor she was impleaded in the suit. Following statement was made by the PW 1 in hisis correct to say that S.No.188/2 stands in the name of Janaki Ammal. Now the said Janaki Ammal sold that property to third person. I have not initiated any action to include Janaki Ammal as a party to this suit.In view of the statement of the plaintiff himself that Survey No. 188/2 is in the name of Janaki Ammal, the observations of the High Court that no documentary evidence was filed for the purpose of establishing that Survey No. 188/2 stands in the name of Janaki Ammal are erroneous and misplaced.When Plaintiff himself admitted that Survey No. 188/2 is recorded in the name of Janaki Ammal, there was no basis for the High Court to come to conclusion that plaintiff is entitled for the area apart from 5 acres and 10 cents, which belonged to the Temple.20. As noted above, one of the issues framed, as to whether the suit is bad for non-joinder of necessary party. The said issue was answered against the plaintiff and it was held that suit is bad for non-joinder of Janaki Ammal a necessary party, whose name was recorded against Survey No.188/2. Without adverting to the said findings of the trial court and the Appellate Court, the High Court has erroneously decreed the suit of the plaintiff.31. There is one more reason due to which the judgment and the decree of the High Court cannot be sustained. The trial court in its judgment has categorically recorded findings that the Defendant No. 1 is in possession of the suitIn the present case, the plaintiff having been found not to be in possession and having only sought for declaratory reliefs, the suit was clearly not maintainable and has rightly been dismissed by the trialThe decree of the High Court is also contradictory. The High Court has affirmed the findings that Defendant No. 1 is the owner of the Survey No. 188/1 and 188/3, whereas, by decreeing the suit for declaration and mandatory injunction the name of Defendant No. 1 is to be removed and replaced by plaintiff which is clearly erroneous and unsustainable.