Some of JUDICIAL PRECEDENTS relating to declaration suits

 

1.       In Samar Kumar Roy (died) through LR (Mother) vs. Jherna Bera, [AIR 2018 SC 334], the Hon’ble Supreme Court held that “the High Courts have uniformly taken the view that a suit for declaration of a legal character filed under Section 34 of the Act can be filed by a third party plaintiff, or continued at the behest of the legal representative of a dead plaintiff”. It also further held that “a suit for declaration as to legal character which includes the matrimonial status of parties to a marriage when it comes to a marriage which allegedly has never taken place either de jure or de facto, it is clear that the civil court's jurisdiction to determine the aforesaid legal character is not barred either expressly or impliedly by any law”.

2.       In Mallikarjunaiah vs. Nanjaiah and others, [2019 (3) ALT 277 (SC)], the Hon’ble Supreme Court held that “mere continuous possession howsoever long it may have been qua its true owner is not   enough to sustain the plea of adverse possession unless it is further proved that such possession was open, hostile, exclusive and with the assertion of ownership right over the property to the knowledge of its true owner”.

3.       In Panakanti Muthyam Rao @ Venkata Muthyam Rao vs. State of Telangana, rep. by its Principal Secretary, Revenue Department, Hyderabad and others, [2019 (3) ALT 343 (TS)], the Hon’ble High Court held that “irrespective of whether a judgment is a reasoned one or not, it has the force of law as long as it remains in operation”. It also further held that “a declaratory decree need not be executed and it would continue to operate with full force unless set aside”.

4.       In Ravinder Kaur Grewal vs. Manjit Kaur, [2019 (5) ALT 38 (SC)], the Hon’ble Apex Court held that “a person in possession cannot be ousted by another person except by due procedure of law and once 12 years’ period of adverse possession is over, even owner’s right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing

 

person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner’s title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other Articles also in case of infringement

of any of his rights, a plaintiff who has perfected the title by adverse possession,     can sue and maintain a suit.”

5.       In Jharkhand State Housing Board v. Didar Singh, (2019) 17 SCC 692 Hon’ble Apex Court held in para 11. “It is well settled by catena of judgments of this Court that in each and every case where   the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.”

6.      Grant of declaratory relief under the Specific Relief Act is discretionary in nature. A civil court can and may in appropriate cases refuse a declaratory decree for good and valid reasons which dissuade the court from exercising its discretionary jurisdiction, Kandla Port v.Hargovind Jasraj, (2013) 3 SCC 182.

 

7.      Suit seeking declaration of title of ownership of property, without seeking possession, when plaintiff not in possession, is not maintainable, Union of India v. Ibrahim Uddin, (2012) 8 SC 148.

8.      In a case where claim of ownership of property is subsequent to its acquisition, where acquisition proceedings attained finality, declaratory remedy of ownership cannot be granted. Suit of such nature cannot be filed,

Y.P. Sudhanva Reddy v. Karnataka Milk Federation, (2018) 6 SCC 574.

 

9.      Suit for declaration of legal character of parties in regard to their alleged marriage can be filed under Section 34 by plaintiff and on his death can be continued by his LR at behest of plaintiff. Suit having not been filed under Hindu Marriage Act or Special Marriage Act, civil suit under Section 34 not barred by Sections 7 and 8 of Family Court Act, Samar Kumar Ray v. Jharna Bera, (2017) 9 SCC 591.

10.  Suit for permanent injunction to protect possession of one from interference by the other, between two private parties in respect of land which falls within State Ceiling Law without impleading State as party-defendant, liable to be dismissed, Agnigundala Venkata Ranga Rao v. Indukuru Ramachandra Reddy, (2017) 7 SCC 694.

11.  A trespasser cannot claim injunction against the owner, Tamil Nadu

Housing Board v. A. Viswam, (1996) 8 SCC 259.

 

12.  Ordinarily injunction cannot be issued against a true owner or title holder in favour of a trespasser or a person in unlawful possession. However, injunction may be granted even against true owner of property, but only when person seeking relief is in lawful possession and enjoyment of property and also legally entitled to be in possession, and cannot be dispossessed, except by due process of law, Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai, (2022) 12 SCC 128.

 

13.  Measurement record at the survey settlement cannot be the proof fo title over the land as is held in State of Gujarath vs. Mali Ranchchod Kheta and others, 1996 (2) GLR 501.

14.  Where the plaintiff seeks for a declaration of title, he mus prove it and he cannot take advantage of the weakness of the defendants, as is laid down in R.K.Madhuryyajit Singh vs. Takhellambam Abung Singh, AIR 2001 Gau 181.

15.  Mere denial of the title of the plaintiff by the defendant does not entitle him to get an injunction in his favour despite it may be sufficient for him to get a declaration in his favour. To get injunction, plaintiff must further establish that the defendant is trying to distrub his possession and enjoyment. Mere assertion of title would not entitle him to get an injunction, as was held in Paramatna vs. Sampatti, AIR 1968 ALL 184.

16.  In a suit for declaration and injunction, if the plaintiff proceeds on the ground that he is in possession and if the Court finds that the plaintiff is entitled for declaration but not for injunction as he was not in possession, the Court may grant a decree for declaration and for possession and ask the plaintiff to pay court-fee on the relief of possession. But it would be more appropriate if the Court asks the plaintiff to amend the plaint from that of injunction into one of possession, as was held in Md. Aftabuddin vs. Chandan Bilasini, AIR 1977 Orissa 69.

17.  It is to be seen that plaintiff has not examined any independent witness to prove his continuous possession since 1951 to 1976 i.e., the from the date of purchase till his alleged dispossession, and thus in view of these circumstances, it cannot be said that the plaintiff proved his possession over the suit land. Further, even assuming for a moment, that he was in possession of the suit property, his possession has to be termed as ‘illegal’ and as per the case of the respondent–Corporation, the encroachments were removed in accordance with Land Encroachment Act. If the plaintiff was really in possession, he would have challenged the proceedings initiated

 

under the Land Encroachment Act, but the plaintiff has not filed any documentary proof to show that he challenged the said proceedings, as was held in Mohd. Syed Bin Mubarak by L.Rs. and others Vs. A.P.S.R.T.C. rep. by its General Manager, 2023 (6) ALT 69.

18.  Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession, K.M. Krishna Reddy Vs. Vinod Reddy and another, 2023 (6) ALT (SC) 1 (DB).

19.  Revenue records neither creates nor extinguishes title to the property nor has any presumptive value on the title such entries are relevant only for the purpose of collecting land revenue. Mutation entry does not confer any right title or interest in favour of person and the object is only for fiscal purpose, held in Jitendra Singh vs State of M.P. 2021 SCCOnline SC 802

20.   It was observed in Medilonda Venkata Murali Krishna Vs. M/s. Venspra Entrprises Vijawada Firm rep. by its Managing Partner, Pothina Venkateswara Swamy and others, 2023 (3) ALT 423 (DB), GANNAMANENI RAMAKRISHNA PRASAD and U. DURGA PRASAD RAO,jj, that referring to its own decision in Yallawwa v. Shantavva [MANU/SC/0016/1997 = (1997) 11 SCC 159] the Apex Court held that the personal cause of action dies with the person but all the rest of causes of action which have an impact on proprietory rights and social legal status of the parties cannot be said to have died with such a person.