REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2342 OF 2017
ARISING OUT OF SLP(C)NO. 21587 OF 2014
EXECUTIVE OFFICER, ARULMIGU CHOKKANATHA SWAMY
KOIL TRUST
VIRUDHUNAGAR .... APPELLANT
VERSUS
CHANDRAN & ORS .... RESPONDENTS
J U D G M E N T
Ashok Bhushan, J.
Leave granted
2. The defendant has filed this appeal against judgment of the Madurai
Bench of Madras High Court dated 22.01.2013, by which judgment the High
Court while reversing the judgment of trial court and First Appellate
Court, has decreed the suit of the plaintiff.
3. The brief facts of the case are:
The Respondent No. 1, who shall be hereinafter referred to as
plaintiff, filed Original Suit No. 33 of 2008 for the relief of declaration
and mandatory injunction. Plaintiff's case in the plaint was that by Sale
Deed dated 04.11.2007, he has purchased an area of 2 acres and 73 cents
being part of Survey No. 188. The entire Plot No. 188 (area 7 acres and 84
cents) is recorded in the name of Defendant No. 1. Mandatory injunction was
prayed to be issued, directing the Defendant Nos. 4 and 5 to correct the
revenue records by entering the name of plaintiff in the suit property. The
plaintiff's case was that the suit property belonged to one R. Padmanabhan
who vide Sale Deed dated 28th August, 1992 on his behalf and on behalf of
his minor sons transferred 2 acres 72 cents area being part of Survey No.
188 in favour of one Sanjay Ramasamy, correspondent of Annai Velankanni
Women Teacher Training School. Sanjay Ramasamy executed a General Power of
Attorney in favour of one Bhaskaran on 31.10.2007 and it was Bhaskaran who
executed the Sale Deed dated 04.11.2007 in favour of the plaintiff.
Plaintiff, further stated that when he went to Revenue Tehsildar for
issuance of patta in his favour, he came to know that it is in the name of
first Defendant. Consequently, the suit was filed, seeking declaration and
mandatory injunction.
4. A written statement was filed by the first Defendant, controverting
the plaint allegation. It was pleaded that plaintiff or his predecessors in
interest were never the owner of the suit property. The Defendant No. 1,
hereinafter referred to as Temple, has been the owner in possession of the
suit property whose name is also recorded in the revenue records. It was
pleaded that there is no such Survey No. as 188 in the whole village. The
only available Survey Nos. as per the revenue records are 188/1, 188/2 and
188/3. The first Defendant is entitled to the Survey No. 188/1 and 188/3,
which are in possession and continuous enjoyment of Temple from the time
immemorial. The property register of the Temple, which is maintained by
Special Tehsildar, Hindu Religious & Charitable Endowment Department,
records the Temple as the owner of the property. Survey No. 188/2 is in the
possession and enjoyment of one Janaki Ammal, who being not a party, the
suit is not maintainable and it is bad for mis-joinder and non-joinder of
necessary party. The defendants numbers 2 to 4 have adopted the written
statement of defendant No.1.
5. Plaintiff, initially in the plaint, had claimed for the reliefs of
declaration and mandatory injunction for an area 2 ares 73 cents as part of
Survey No. 188. Subsequently, the plaint was got amended by the plaintiff,
mentioning the suit property as Survey No. 188/3. The Plaintiff in support
of his case filed documentary as well as oral evidences of PW 1 to PW 5.
The Defendant in support of his case has also filed documentary as well as
oral evidences of DW 1, Senior Accountant in defendant's temple.
6. Trial court framed the following five issues:
"1. Whether the plaintiff is entitled for the relief of declaration as
prayed for?
2. Whether the plaintiff is entitled for mandatory injunction as prayed
for?”
3. Whether the suit is bad for non joinder of necessary party?
4. To any other relief?
Additional issue framed on 17.08.2010:
1. Whether this suit is maintainable?”
7. Trial court, while answering the issue No. 1 to 4 and additional
issue No. 1 held that Survey No. 188 further has been sub-divided into
Survey No. 188/1, 188/2 and 188/3. The trial court further held that there
is no explanation submitted by the plaintiff that how he has got amended
the Survey No. 188/3 in the original suit. It held that the description of
the suit property is not correct. It was also held that name of
Padmanabhan was never recorded in the revenue records. Patta was never
transferred in the name of Sanjay Ramasamy, who had no right to execute a
General Power of Attorney in favour of Bhaskaran. It was held that no
document has been produced to prove that Padmanabhan was in possession and
enjoyment of the suit property. None of those persons, who claimed to be
vendors have been examined. Finding was returned that the Survey No. 188
was never in the name of Padmanabhan.
8. It was held that suit property belonged to Temple, which is in
possession for a long time continuously. The trial court further recorded a
finding that plaintiff had failed to prove, that property belonged to the
plaintiff and it is in possession hence declaratory reliefs cannot be
granted to the plaintiff and thereby suit is not maintainable.
9. Answering the issue No. 6, trial court held that PW 1, the plaintiff
having deposed in his cross-examination, that survey No. 188/2 is in the
name of Janaki Ammal and she had sold the property to some other persons.
The Janaki Ammal being necessary party who has not been impleaded in the
suit, the suit is hit by non-joinder of a necessary party.
10. The plaintiff aggrieved by the judgment of the trial court filed an
appeal. The Appellate Court vide its judgment dated 31.10.2011 after
reappraising the entire evidence on the record affirmed the findings
recorded by the trial court that plaintiff is not the owner of the suit
property. The Appellate Court further held that on the date when plaintiff
purchased the property in 2007, Survey No. 188 was already sub-divided in
188/1, 188/2 and 188/3. The vendors of the plaintiff did not have patta,
chitta and adangal of the suit property.
11. The Appellate Court held that Survey No. 188/1 and 188/3 belong to
Temple and survey No. 188/2 belongs to Janaki Ammal who having not
impleaded, the suit is bad for mis-joinder and non-joinder of necessary
party. It was held that plaintiff was not entitled for declaration and
mandatory injunction.
12. Aggrieved by the judgment of the Appellate Court, second appeal was
filed by the plaintiff in the High Court. The High Court vide its judgment
and order dated 22.01.2013, allowed the second appeal by setting aside the
decrees of the trial court and Appellate Court respectively. The High Court
although, set aside the decree of courts below and decreed the suit but
directed the Defendant Nos. 4 and 5 to include the name of the plaintiff
after excluding the extent of property which stands in the name of the
first Defendant.
13. The High Court in its judgment did not disturb the findings of the
courts below that Temple is the owner of 188/1 and 188/3 total area of 5
acres and 10 cents of land. The High Court, however, held that total area
of 188 being 7 acres and 84 cents, plaintiff was entitled for the remaining
extent of plot No. 188. Aggrieved by the judgment of the High Court, this
appeal has been filed by the Defendant No. 1.
14. Learned counsel for the appellant in support of appeal contends that
the High Court in exercise of jurisdiction under Section 100 CPC has
interfered with the concurrent findings of the facts, recorded by Courts
below that the plaintiff has failed to proof his title and possession.
15. It is submitted that plaintiff having himself admitted that Survey
No. 188/2 stood in the name of Janaki Ammal and Janaki Ammal without having
been impleaded, the suit of plaintiff was correctly dismissed by two courts
below on the grounds of mis-joinder and non-joinder of necessary party.
Further, the description of the property in the plaint was incorrect and in-
spite of the amendment of the plaint, no correction having been made in the
sale deed, plaintiff could not have been given any right on Survey No.
188/3.
16. The plaintiff came with the case that Padmanabhan acquired the
property through inheritance, but in his deposition, it is stated that
property was purchased by Padmanabhan. The property being never in the name
of Padmanabhan in the records, there was no title vested in the plaintiff.
Defendant proved that Survey No. 188/1 and 188/3 having been in the name of
Temple, no right could have been granted to the plaintiff.
17. Learned counsel for the respondent/plaintiff submitted that High
Court has rightly set aside the judgment and decrees of the two courts
below. Plaintiff had proved his title to the suit property by virtue of
Sale Deed dated 29.07.1974 Annexure R.1, Sale Deed dated 28.08.1992 and
Sale Deed dated 04.11.2007. It is contended that title of Padmanabhan was
fully proved by Sale Deed dated 29.07.1974, which was executed by one
Rajakambalam Sundara Rajan with regard to part of Survey No. 188 area 2.79
acres.
18. We have considered the submission of the learned counsel for the
parties and perused the record. The trial court after considering the both
oral and documentary evidence brought on record, dismissed the suit of the
plaintiff by recording following findings:
(i) Plaintiff has failed to prove by producing any document to show that
Padmanabhan had any right and possession over the suit property.
(ii) Survey No. 188/1 and 188/3 are in the name of Defendant No. 1, the
Temple.
(iii) The suit property belonged to Defendant No. 1 and it is in possession
for a long time continuously.
(iv) Plaintiff in his suit has prayed for the reliefs of declaration
without seeking the relief for the possession hence the suit was not
legally maintainable.
(v) Plaintiff cannot be granted the decree of the declaration and
mandatory injunction.
(vi) Survey No. 188/2 being in the name of Janaki Ammal, she having not
been made party to the suit, suit was hit by the principle of non joinder
of the necessary party.
19. The Appellate Court, after adverting to documentary and oral evidence
has confirmed the above findings. Appellate Court has also rejected the
application filed by the plaintiff, for amending the plaint for
incorporating new pleadings. Appellate Court held that by amendment,
plaintiff intends to fill up the gap and wanted to change the entire nature
of the case, which cannot be permitted.
20. The plaintiff came with the case in the suit that R. Padmanabhan was
the owner of the property, who transferred it to in favour of Sanjay
Ramasamy on whose General Power of Attorney Bhaskaran has transferred the
property to the plaintiff by Sale Deed dated 04.11.2007. Trial Court has
categorically recorded a finding that R. Padmanabhan was never a recorded
owner of the property and no patta was issued in his favour.
21. The plaintiff initially in the plaint has prayed for decree for an
area of 2.73 acres, as part of Survey No. 188. Sale Deed dated 04.11.2007
also mentions the suit property as part of Survey No. 188. Plaintiff
himself has examined PW 4, A. Murugesan, Surveyor at Virudhunagar District,
Collectorate Office. PW 4 in the statement has stated that he has brought
the village revenue records for the year 1983 with regard to Survey No.
188/1, 188/2 & 188/3. It is useful to extract the statement of PW 4, which
was to the following effect:
"I received summons from this Hon'ble court to depose witness. I brought
Chinnamoopanpatti Village's revenue records for the year 1983 with regard
to S. No. 188/1, 188/2 & 188/3. I am producing 1914 settlement.”
22. From the above, it is clear that Sub Divisions 188/1, 188/2 & 188/3
were in existence at least since before 1983. The deeds on which the
reliance has been placed by the plaintiff i.e. Sale Deed dated 28.08.1992,
by which Padmanabhan is said to have transferred the property in favour of
Sanjay Ramasamy as well as General Power of Attorney dated 31.10.2007 and
Sale Deed dated 04.11.2007 in the name of plaintiff, the suit property is
not described by sub division rather it is mentioned as part of Plot No.
188. Although, plaintiff got his plaint amended by amending part of Plot
No. 188 as Survey No. 188/3 but Sale Deed being not for Survey No. 188/3,
both the trial court and the Appellate Court have rightly come to the
conclusion that the plaintiff failed to correctly describe the suit
property and it cannot be accepted that deeds claimed by him referred to
the suit property.
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 A-14. 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 A-12 to A-14 with regard to which there was
no pleading in the plaint. In his deposition, PW.1 admitted that “it is
correct to say that without disclosing this deed in the plaint I filed
Exhibits A-12 to A-15”. When 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 plaintiff's 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 sub-divided 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 sub-division. 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 Temple's
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 Para 16:
"16. The 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.”
26. 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 as below:
"18. Considering 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.”
27. 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 his statement:
"It is 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.”
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 mis-
placed. 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.
38. In view of the above, judgment of the High Court cannot be sustained.
The High Court committed an error in reversing the judgments of the trial
court and the First Appellate Court. In result, the appeal is allowed and
the judgment of the High Court is set aside and those of trial court and
the First Appellate Court are restored.
…….…...........................J.
(RANJAN GOGOI)
.….....…...........................J.
(ASHOK BHUSHAN)
NEW DELHI,
FEBRUARY 10, 2017.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2342 OF 2017
ARISING OUT OF SLP(C)NO. 21587 OF 2014
EXECUTIVE OFFICER, ARULMIGU CHOKKANATHA SWAMY
KOIL TRUST
VIRUDHUNAGAR .... APPELLANT
VERSUS
CHANDRAN & ORS .... RESPONDENTS
J U D G M E N T
Ashok Bhushan, J.
Leave granted
2. The defendant has filed this appeal against judgment of the Madurai
Bench of Madras High Court dated 22.01.2013, by which judgment the High
Court while reversing the judgment of trial court and First Appellate
Court, has decreed the suit of the plaintiff.
3. The brief facts of the case are:
The Respondent No. 1, who shall be hereinafter referred to as
plaintiff, filed Original Suit No. 33 of 2008 for the relief of declaration
and mandatory injunction. Plaintiff's case in the plaint was that by Sale
Deed dated 04.11.2007, he has purchased an area of 2 acres and 73 cents
being part of Survey No. 188. The entire Plot No. 188 (area 7 acres and 84
cents) is recorded in the name of Defendant No. 1. Mandatory injunction was
prayed to be issued, directing the Defendant Nos. 4 and 5 to correct the
revenue records by entering the name of plaintiff in the suit property. The
plaintiff's case was that the suit property belonged to one R. Padmanabhan
who vide Sale Deed dated 28th August, 1992 on his behalf and on behalf of
his minor sons transferred 2 acres 72 cents area being part of Survey No.
188 in favour of one Sanjay Ramasamy, correspondent of Annai Velankanni
Women Teacher Training School. Sanjay Ramasamy executed a General Power of
Attorney in favour of one Bhaskaran on 31.10.2007 and it was Bhaskaran who
executed the Sale Deed dated 04.11.2007 in favour of the plaintiff.
Plaintiff, further stated that when he went to Revenue Tehsildar for
issuance of patta in his favour, he came to know that it is in the name of
first Defendant. Consequently, the suit was filed, seeking declaration and
mandatory injunction.
4. A written statement was filed by the first Defendant, controverting
the plaint allegation. It was pleaded that plaintiff or his predecessors in
interest were never the owner of the suit property. The Defendant No. 1,
hereinafter referred to as Temple, has been the owner in possession of the
suit property whose name is also recorded in the revenue records. It was
pleaded that there is no such Survey No. as 188 in the whole village. The
only available Survey Nos. as per the revenue records are 188/1, 188/2 and
188/3. The first Defendant is entitled to the Survey No. 188/1 and 188/3,
which are in possession and continuous enjoyment of Temple from the time
immemorial. The property register of the Temple, which is maintained by
Special Tehsildar, Hindu Religious & Charitable Endowment Department,
records the Temple as the owner of the property. Survey No. 188/2 is in the
possession and enjoyment of one Janaki Ammal, who being not a party, the
suit is not maintainable and it is bad for mis-joinder and non-joinder of
necessary party. The defendants numbers 2 to 4 have adopted the written
statement of defendant No.1.
5. Plaintiff, initially in the plaint, had claimed for the reliefs of
declaration and mandatory injunction for an area 2 ares 73 cents as part of
Survey No. 188. Subsequently, the plaint was got amended by the plaintiff,
mentioning the suit property as Survey No. 188/3. The Plaintiff in support
of his case filed documentary as well as oral evidences of PW 1 to PW 5.
The Defendant in support of his case has also filed documentary as well as
oral evidences of DW 1, Senior Accountant in defendant's temple.
6. Trial court framed the following five issues:
"1. Whether the plaintiff is entitled for the relief of declaration as
prayed for?
2. Whether the plaintiff is entitled for mandatory injunction as prayed
for?”
3. Whether the suit is bad for non joinder of necessary party?
4. To any other relief?
Additional issue framed on 17.08.2010:
1. Whether this suit is maintainable?”
7. Trial court, while answering the issue No. 1 to 4 and additional
issue No. 1 held that Survey No. 188 further has been sub-divided into
Survey No. 188/1, 188/2 and 188/3. The trial court further held that there
is no explanation submitted by the plaintiff that how he has got amended
the Survey No. 188/3 in the original suit. It held that the description of
the suit property is not correct. It was also held that name of
Padmanabhan was never recorded in the revenue records. Patta was never
transferred in the name of Sanjay Ramasamy, who had no right to execute a
General Power of Attorney in favour of Bhaskaran. It was held that no
document has been produced to prove that Padmanabhan was in possession and
enjoyment of the suit property. None of those persons, who claimed to be
vendors have been examined. Finding was returned that the Survey No. 188
was never in the name of Padmanabhan.
8. It was held that suit property belonged to Temple, which is in
possession for a long time continuously. The trial court further recorded a
finding that plaintiff had failed to prove, that property belonged to the
plaintiff and it is in possession hence declaratory reliefs cannot be
granted to the plaintiff and thereby suit is not maintainable.
9. Answering the issue No. 6, trial court held that PW 1, the plaintiff
having deposed in his cross-examination, that survey No. 188/2 is in the
name of Janaki Ammal and she had sold the property to some other persons.
The Janaki Ammal being necessary party who has not been impleaded in the
suit, the suit is hit by non-joinder of a necessary party.
10. The plaintiff aggrieved by the judgment of the trial court filed an
appeal. The Appellate Court vide its judgment dated 31.10.2011 after
reappraising the entire evidence on the record affirmed the findings
recorded by the trial court that plaintiff is not the owner of the suit
property. The Appellate Court further held that on the date when plaintiff
purchased the property in 2007, Survey No. 188 was already sub-divided in
188/1, 188/2 and 188/3. The vendors of the plaintiff did not have patta,
chitta and adangal of the suit property.
11. The Appellate Court held that Survey No. 188/1 and 188/3 belong to
Temple and survey No. 188/2 belongs to Janaki Ammal who having not
impleaded, the suit is bad for mis-joinder and non-joinder of necessary
party. It was held that plaintiff was not entitled for declaration and
mandatory injunction.
12. Aggrieved by the judgment of the Appellate Court, second appeal was
filed by the plaintiff in the High Court. The High Court vide its judgment
and order dated 22.01.2013, allowed the second appeal by setting aside the
decrees of the trial court and Appellate Court respectively. The High Court
although, set aside the decree of courts below and decreed the suit but
directed the Defendant Nos. 4 and 5 to include the name of the plaintiff
after excluding the extent of property which stands in the name of the
first Defendant.
13. The High Court in its judgment did not disturb the findings of the
courts below that Temple is the owner of 188/1 and 188/3 total area of 5
acres and 10 cents of land. The High Court, however, held that total area
of 188 being 7 acres and 84 cents, plaintiff was entitled for the remaining
extent of plot No. 188. Aggrieved by the judgment of the High Court, this
appeal has been filed by the Defendant No. 1.
14. Learned counsel for the appellant in support of appeal contends that
the High Court in exercise of jurisdiction under Section 100 CPC has
interfered with the concurrent findings of the facts, recorded by Courts
below that the plaintiff has failed to proof his title and possession.
15. It is submitted that plaintiff having himself admitted that Survey
No. 188/2 stood in the name of Janaki Ammal and Janaki Ammal without having
been impleaded, the suit of plaintiff was correctly dismissed by two courts
below on the grounds of mis-joinder and non-joinder of necessary party.
Further, the description of the property in the plaint was incorrect and in-
spite of the amendment of the plaint, no correction having been made in the
sale deed, plaintiff could not have been given any right on Survey No.
188/3.
16. The plaintiff came with the case that Padmanabhan acquired the
property through inheritance, but in his deposition, it is stated that
property was purchased by Padmanabhan. The property being never in the name
of Padmanabhan in the records, there was no title vested in the plaintiff.
Defendant proved that Survey No. 188/1 and 188/3 having been in the name of
Temple, no right could have been granted to the plaintiff.
17. Learned counsel for the respondent/plaintiff submitted that High
Court has rightly set aside the judgment and decrees of the two courts
below. Plaintiff had proved his title to the suit property by virtue of
Sale Deed dated 29.07.1974 Annexure R.1, Sale Deed dated 28.08.1992 and
Sale Deed dated 04.11.2007. It is contended that title of Padmanabhan was
fully proved by Sale Deed dated 29.07.1974, which was executed by one
Rajakambalam Sundara Rajan with regard to part of Survey No. 188 area 2.79
acres.
18. We have considered the submission of the learned counsel for the
parties and perused the record. The trial court after considering the both
oral and documentary evidence brought on record, dismissed the suit of the
plaintiff by recording following findings:
(i) Plaintiff has failed to prove by producing any document to show that
Padmanabhan had any right and possession over the suit property.
(ii) Survey No. 188/1 and 188/3 are in the name of Defendant No. 1, the
Temple.
(iii) The suit property belonged to Defendant No. 1 and it is in possession
for a long time continuously.
(iv) Plaintiff in his suit has prayed for the reliefs of declaration
without seeking the relief for the possession hence the suit was not
legally maintainable.
(v) Plaintiff cannot be granted the decree of the declaration and
mandatory injunction.
(vi) Survey No. 188/2 being in the name of Janaki Ammal, she having not
been made party to the suit, suit was hit by the principle of non joinder
of the necessary party.
19. The Appellate Court, after adverting to documentary and oral evidence
has confirmed the above findings. Appellate Court has also rejected the
application filed by the plaintiff, for amending the plaint for
incorporating new pleadings. Appellate Court held that by amendment,
plaintiff intends to fill up the gap and wanted to change the entire nature
of the case, which cannot be permitted.
20. The plaintiff came with the case in the suit that R. Padmanabhan was
the owner of the property, who transferred it to in favour of Sanjay
Ramasamy on whose General Power of Attorney Bhaskaran has transferred the
property to the plaintiff by Sale Deed dated 04.11.2007. Trial Court has
categorically recorded a finding that R. Padmanabhan was never a recorded
owner of the property and no patta was issued in his favour.
21. The plaintiff initially in the plaint has prayed for decree for an
area of 2.73 acres, as part of Survey No. 188. Sale Deed dated 04.11.2007
also mentions the suit property as part of Survey No. 188. Plaintiff
himself has examined PW 4, A. Murugesan, Surveyor at Virudhunagar District,
Collectorate Office. PW 4 in the statement has stated that he has brought
the village revenue records for the year 1983 with regard to Survey No.
188/1, 188/2 & 188/3. It is useful to extract the statement of PW 4, which
was to the following effect:
"I received summons from this Hon'ble court to depose witness. I brought
Chinnamoopanpatti Village's revenue records for the year 1983 with regard
to S. No. 188/1, 188/2 & 188/3. I am producing 1914 settlement.”
22. From the above, it is clear that Sub Divisions 188/1, 188/2 & 188/3
were in existence at least since before 1983. The deeds on which the
reliance has been placed by the plaintiff i.e. Sale Deed dated 28.08.1992,
by which Padmanabhan is said to have transferred the property in favour of
Sanjay Ramasamy as well as General Power of Attorney dated 31.10.2007 and
Sale Deed dated 04.11.2007 in the name of plaintiff, the suit property is
not described by sub division rather it is mentioned as part of Plot No.
188. Although, plaintiff got his plaint amended by amending part of Plot
No. 188 as Survey No. 188/3 but Sale Deed being not for Survey No. 188/3,
both the trial court and the Appellate Court have rightly come to the
conclusion that the plaintiff failed to correctly describe the suit
property and it cannot be accepted that deeds claimed by him referred to
the suit property.
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 A-14. 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 A-12 to A-14 with regard to which there was
no pleading in the plaint. In his deposition, PW.1 admitted that “it is
correct to say that without disclosing this deed in the plaint I filed
Exhibits A-12 to A-15”. When 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 plaintiff's 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 sub-divided 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 sub-division. 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 Temple's
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 Para 16:
"16. The 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.”
26. 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 as below:
"18. Considering 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.”
27. 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 his statement:
"It is 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.”
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 mis-
placed. 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.
38. In view of the above, judgment of the High Court cannot be sustained.
The High Court committed an error in reversing the judgments of the trial
court and the First Appellate Court. In result, the appeal is allowed and
the judgment of the High Court is set aside and those of trial court and
the First Appellate Court are restored.
…….…...........................J.
(RANJAN GOGOI)
.….....…...........................J.
(ASHOK BHUSHAN)
NEW DELHI,
FEBRUARY 10, 2017.
