Court’s Decision
The Karnataka High Court set aside the concurrent findings of the Trial Court and First Appellate Court which had declared the plaintiffs as absolute owners of the suit schedule properties. The High Court, through Justice H.P. Sandesh, held that the suit for mere declaration without seeking consequential relief of possession was not maintainable under the proviso to Section 34 of the Specific Relief Act, 1963.
The Court observed:
“The very suit for declaration simpliciter is not maintainable when the plaintiffs are not in possession of the suit schedule property.”
Accordingly, the High Court allowed the second appeal and set aside the judgments of the Trial Court (dated 17.11.2015) and the First Appellate Court (dated 07.08.2020).
Facts
The plaintiffs filed a suit claiming absolute ownership over the ‘A’ schedule properties on the basis that their father, Aithu Belchada, was granted occupancy rights by the Land Tribunal, Udupi, in respect of Sy. No. 13/32 (67 cents) and Sy. No. 13/48 (30 acres). An occupancy certificate in Form 10 was issued on 15.11.1981. The plaintiffs contended that a partition deed was executed between Aithu Belchada and his sisters on 30.10.1991. After his intestate death on 04.01.1998, the properties allegedly devolved upon the plaintiffs as legal heirs.
However, the defendants claimed that Aithu Belchada executed an unregistered Will dated 11.06.1996 bequeathing portions of the suit properties to them. They also claimed possession and construction over the land in question. The plaintiffs challenged the Will as forged and violative of Section 61(3) of the Karnataka Land Reforms Act.
Issues
- Whether the suit for declaration simpliciter is maintainable without a prayer for possession?
- Whether the unregistered Will dated 11.06.1996 executed by Aithu Belchada was valid and enforceable?
- Whether the declaration granted by the Trial Court was justified in the absence of the plaintiffs’ possession?
Petitioner’s Arguments
The appellants contended that the judgments of the lower courts were erroneous because:
- The Will executed by Aithu Belchada was valid and voluntary.
- The Will was not barred under Section 61(3) of the Karnataka Land Reforms Act.
- The defendants had been in continuous possession, constructed a house, and improved the land.
- Even if the Will was disregarded, their possession stood established.
- Under the proviso to Section 34 of the Specific Relief Act, a suit seeking mere declaration without a consequential relief of possession was barred when the plaintiffs were not in possession.
Reliance was placed on:
- Vasantha (Dead) through LR v. Rajalakshmi (Dead) through LRs, AIR 2024 SC (Civil) 978– held that a declaration suit is not maintainable when the plaintiff is not in possession and does not seek consequential possession.
- Joseph Albert Lewis v. Michael Roque Lewis, ILR 2007 KAR 4174 – held that a Will is valid only if the legatee is part of the family as defined under the Karnataka Land Reforms Act.
Respondent’s Arguments
The respondents maintained that:
- They were in possession of the property and therefore did not need to seek a prayer for possession.
- The Will was invalid under Section 61 of the Karnataka Land Reforms Act.
- The defendant was not a family member under Section 2(12) of the Act, and hence the Will bequeathing tenancy land was not valid.
- Aithu Belchada’s occupancy rights and partition deed with sisters substantiated the plaintiffs’ ownership.
- Declaratory relief was justified as they were in possession and had not been dispossessed.
They relied on:
- Nagorao Narayan Diwane v. Narayan Awadutrao Dighe, 2000 (2) Mh.L.J 273 – which held that a declaratory suit is maintainable without a consequential prayer for possession if the plaintiff is in possession.
Analysis of the Law
The Court analyzed Section 34 of the Specific Relief Act and reiterated that where a plaintiff is not in possession, they cannot seek a declaration of title without also seeking recovery of possession.
The proviso to Section 34 clearly bars courts from granting a declaratory decree when further relief (such as possession) is possible but not sought. The Court held:
“It is not permissible to claim the relief of declaration without seeking consequential relief.”
The Court found that the evidence, including admission by D.W.1 and the plaintiffs’ own suggestions during cross-examination, demonstrated that the defendants were in possession of the suit property.
Precedent Analysis
The Court relied heavily on the following cases:
- Vasantha v. Rajalakshmi (2024): Declared that suits for declaration simpliciter without recovery of possession are barred where the plaintiff is not in possession.
- Vinay Krishna v. Keshav Chandra (1993 Supp (3) SCC 129): Plaintiff must seek possession if not in possession; mere declaration is not maintainable.
- Union of India v. Ibrahim Uddin (2012) 8 SCC 148: The bar under the proviso to Section 34 is mandatory.
- Ram Saran v. Ganga Devi (AIR 1972 SC 2685): Declaratory suit without possession is not maintainable.
- Gian Kaur v. Raghubir Singh (2011) 4 SCC 567: Reiterated that declaratory relief cannot be granted without seeking possession.
The case of Joseph Albert Lewis v. Michael Roque Lewis (ILR 2007 KAR 4174) was noted in relation to the family definition under the Land Reforms Act.
The respondents’ reliance on the Bombay High Court decision in Nagorao Narayan Diwane was found to be inapplicable in light of binding precedents from the Supreme Court.
Court’s Reasoning
The Court found that both the Trial Court and First Appellate Court erred in failing to recognize that:
- The plaintiffs were not in possession of the suit property.
- The defendants had clearly established possession through revenue records, construction of house, and consistent presence.
- No consequential relief of possession was sought.
- As per Supreme Court decisions, the absence of a prayer for possession rendered the suit non-maintainable.
The Court stated:
“It is clear that the judgment of the Trial Court and First Appellate Court is erroneous… plaintiffs are not in possession of the property… and without seeking the relief of possession, the very suit for simpliciter for declaration is not maintainable.”
Conclusion
The second appeal was allowed. The judgments of the Trial Court and First Appellate Court were set aside. The suit for declaration without seeking possession was held to be not maintainable under the Specific Relief Act.
Implications
This judgment reinforces the settled position of law that in property disputes, declaratory relief cannot be granted when the plaintiff is not in possession and fails to seek consequential possession. Courts must strictly enforce the bar under the proviso to Section 34 of the Specific Relief Act.
It also underlines that even when a Will is contested, possession remains a vital factor in determining maintainability of suits.
