Karnataka High Court
Taj Parveen vs Ezazulla Shariff on 16 February, 2026
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RSA No. 1657 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2026
R
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR SECOND APPEAL NO. 1657 OF 2013 (DEC/INJ)
BETWEEN:
1. TAJ PARVEEN,
W/O SIRAJ PASHA,
AGED ABOUT 51 YEARS,
2. SIRAJ PASHA,
S/O ABDUL BASHEER,
AGED ABOUT 53 YEARS,
BOTH ARE PRESENTLY RESIDING AT
OPPOSITE B H V DARGHA,K G F ROAD, HYDAR
NAGAR,MULBHAGAL TALUK, KOLAR DISTRICT,
PIN: 563 131.
...APPELLANTS
(BY SRI G PAPIREDDY, SR. ADVOCATE FOR
SRI V VINOD REDDY, ADVOCATE)
AND:
Digitally
signed by 1. EZAZULLA SHARIFF,
PRAMILA G V S/O LATE AZEEZULLA SHERIFF,
Location: AGED ABOUT 45 YEARS,
HIGH COURT
OF 2. MEHABOOB SHARIFF,
KARNATAKA S/O LATE AZEEZULLA SHERIFF,
AGED ABOUT 38 YEARS,
3. RIYAZUIIA SHARIFF,
S/O LATE AZEEZULLA SHERIFF,
AGED ABOUT 30 YEARS,
4. ATHIFULLA SHARIFF,
S/O LATE AZEEZULLA SHERIFF,
AGED ABOUT 28 YEARS,
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RSA No. 1657 of 2013
RESPONDENTS 1 TO 4 ARE ALL
R/AT MILLATH NAGAR, KOLAR,
PERMANENT RESIDENT OF
DARGA MOHALLA, MULBAGAL TOWN
KOLAR DISTRICT, PIN: 563131.
5. MOHIDDIN SHARIFF
SINCE DEAD BY LRS
5(a) JAMEELA,
W/O MOHIUDDIN SHARIFF,
AGED ABOUT 61 YEARS,
5(b) FAYAZ ULLA SHARIFF,
S/O MOHIUDDIN SHARIFF,
AGED ABOUT 41 YEARS,
5(c) KHADAR SHARIFF,
S/O MOHIUDDIN SHARIFF,
AGED ABOUT 39 YEARS,
5(d) AKBAR SHARIFF,
S/O MOHIUDDIN SHARIFF,
AGED ABOUT 37 YEARS,
5(e) HUSSAIN SHARIFF,
S/O MOHIUDDIN SHARIFF,
AGED ABOUT 35 YEARS,
RESPONDENTS 5(a) TO 5(e) ARE
ALL R/O DARA MOHALLA,
MULBAGAL TOWN, KOLAR DISTRICT,
PIN: 563 131.
6. SAMIULLA SHARIFF,
S/O LATE HAKEEM AHAMED SHAREEF,
AGED ABOUT 62 YEARS,
7. HYDER SHARIFF,
S/O LATE HAKEEM AHAMED SHAREEF,
AGED ABOUT 59 YEARS,
RESPONDENTS 6 AND 7 ARE
RESIDENTS OF DARA MOHALLA
MULBAGAL TOWN, KOLAR DISTRICT, PIN: 563 131.
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RSA No. 1657 of 2013
8. D N SHIVAPRASAD SHETTY,
S/O D NARAYANA SHETTY,
AGED ABOUT 70 YEARS,
R/AT NO.55, '41ST CROSS, 8TH BLOCK,
JAYANAGAR, BENGALURU - 560 041.
(AMENDED AS PER THE ORDER
OF THIS COURT DATED 13.02.25)
...RESPONDENTS
(BY SRI G A SRIKANTE GOWDA, ADVOCATE FOR R1 TO R3,
R5(A-E) R6 & R7,
V/O/DT 20.03.2017, SERVICE OF NOTICE TO R4 IS H/S
SRI GURURAJ JOSHI AND SRI NACHIKET JOSHI, ADV. FOR R8)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGEMENT & DECREE DTD 26.6.2013 PASSED IN
R.A.NO.138/2012 ON THE FILE OF THE II ADDL. SENIOR
CIVLIL JUDGE & JMFC., KOLAR, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
20.6.2012 PASSED IN O.S.NO.156/2010 ON THE FILE OF THE
PRL. CIVIL JUDGE & JMFC., MULBAGAL.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 04TH FEBRUARY, 2026 AND COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
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RSA No. 1657 of 2013
CAV JUDGMENT
The Second Appeal arising from the divergent findings
was admitted to answer the following substantial questions of
law:
1. Whether the Appellate Court was justified in
decreeing plaintiffs’ suit when the plaintiffs
have failed to substantiate their title with
acceptable ocular and documentary evidence?
2. Whether the suit of the plaintiffs was
maintainable, when the plaintiffs were not
granted liberty to file fresh suit on the same
cause of action in O.S.No.235/2008 and
O.S.No.191/2008?
3. Was not the suit of the plaintiff hit by Order 2 Rule
2 of CPC?
2. During the course of hearing the learned Senior
Counsel for the appellants-defendants also urged that in view
of the bar under proviso to Section 34 of the Specific Relief
Act, 1963 (Act,1963), the relief of declaration of title is not
tenable as the plaintiffs though not in possession of the
property have not claimed the consequential relief of
possession but sought declaration of title and defective
consequential relief of injunction.
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RSA No. 1657 of 2013
3. Thus, the Court also heard the learned Senior
counsel for the appellants and the learned counsel for the
respondents on the following substantial questions of law as
well.
Whether the suit for declaration of title and
injunction can be decreed in part granting only
declaration, in case plaintiff’s title is established and
possession is with the defendants despite the bar
contained in Section 34 of the Specific Relief Act,
1963 ?
Or,
Can the Court declare the title and deny the
consequential relief, or can mould the relief and
grant the decree for possession as well if the
appropriate consequential relief of possession is not
claimed?
4. This second appeal is by defendants No.1 and 2.
The Trial Court dismissed the suit for declaration of title and
injunction. On appeal, the First Appellate Court allowed the
appeal and decreed the suit in toto.
5. Learned Senior Counsel appearing for the
defendants/appellants taking through the previous proceedings
between the parties to this appeal submitted that initially, O.S.
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RSA No. 1657 of 2013
No.191/2008 was filed by two plaintiffs (plaintiffs No. 5 and 6
of the suit O.S. No. 156/2010 from which present appeal
arises) for the relief of partition, declaration and permanent
injunction. Said suit was filed against the present appellants,
plaintiff No. 7, and also the father of plaintiffs No.1 to 4 of O.S.
No. 156/2010.
6. Acting on the memo filed by the said two plaintiffs,
the suit in O.S. No.191/2008 was dismissed as not pressed
vide order dated 10.06.2008. It appears that in the memo it is
stated that the dispute is settled out of court. The defendants in
the suit, (present appellants) did not sign the memo and did
not object for withdrawal of the suit either.
7. The seven plaintiffs who are also the plaintiffs in the
suit under scrutiny (O.S. No.156/2010), on 19.05.2008, filed
O.S. No.235/2008 for permanent injunction for the same
property and the same was dismissed for non-prosecution on
11.06.2009.
8. Later, the suit in O.S.No.156/2010 (from which the
present appeal arises) is filed on 15.07.2010 seeking
declaration of title and permanent injunction for the same
property and same is dismissed on merits on 20.06.2012. On
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RSA No. 1657 of 2013
the appeal by the plaintiffs, the first appeal (R.A.No.138/2012)
is allowed and suit is decreed as prayed for. Present appellants
who are the defendants No.1 and 2 have filed the present
appeal.
9. Learned Senior counsel urged that during the
pendency of R.A.No.138/2012, one more suit in
O.S.No.132/2013 was filed on 26.04.2013 by the very same
plaintiffs for declaration, possession and injunction and the
same was dismissed as not pressed based on the memo dated
27.06.2013. It was dismissed as not pressed after the
judgment in R.A. No.138/2012 as plaintiffs were granted
declaration of title and injunction.
10. In addition, it is also submitted that one more suit
in O.S.No.148/2014 is filed on 21.04.2014, (during the
pendency of this appeal) for partition and separate possession
and said suit is still pending consideration.
11. Admittedly, in O.S.No.148/2014,(suit for partition
and separate possession) the present appellants were not
parties and the appellants got impleaded as defendants No.5
and 6 and are contesting the suit.
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RSA No. 1657 of 2013
12. Elaborating on the facts of the case, learned Senior
counsel appearing for the defendants/appellants would urge
that the total extent of the suit property is 25 guntas and out of
that property the property measuring 50′ x 100′ feet was sold
to Abdul Basith by plaintiff No.7 through unregistered sale deed
dated 07.12.1989. Said Abdul Basith sold the property
measuring 50’x100′ in favour of defendant No.2 through the
unregistered sale deed dated 23.06.1995 and thereafter,
defendant No.2 executed a registered gift deed in favour of his
wife defendant No.1 on 29.04.2004. Thus, it is urged that the
property has been transferred from Abdul Basith to defendant
No.2 and defendant No.2 to defendant No.1 and defendant
No.1 is in possession of the property as of the date of the suit
pursuant to the registered gift deed dated 29.04.2004.
13. Referring to the unregistered sale deeds dated
07.12.1989, 23.06.1995 and registered gift deed dated
29.04.2004 referred to above, it is urged that Trial Court rightly
held that plaintiffs are not in possession and dismissed the suit.
14. Without framing proper points for consideration as
required under Order XLI Rule 31 of the Code of Civil Procedure
(for short ‘Code’), the First Appellate Court has erroneously
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RSA No. 1657 of 2013
come to the conclusion that the plaintiffs have established
ownership and possession is another ground raised.
15. Referring to the application under Order XLI Rule 27
of the Code, filed by the appellants wherein the appellants seek
production of additional documents viz., the pleadings and
evidence in O.S.No.132/2013 and O.S.No.148/2014, and
stressing more on plaint averments in O.S.No.132/2013 urged
that the plaintiffs who prayed for possession of the same
property in O.S. No.132/2013 from the present appellants,
cannot maintain a suit for declaration and injunction.
16. To urge that the suit without appropriate
consequential relief of possession is not maintainable reliance is
placed on the co-ordinate Bench of this Court in Sri. Aralappa
Vs Sri. Jagannath And Others1.
17. Another contention that is pressed into service is
that the suit filed by the plaintiff in O.S.No.156/2010 after the
withdrawal of earlier suit in O.S.No.191/2008 is not
maintainable as the plaintiffs have not sought liberty to file a
fresh suit while withdrawing the earlier suit. That apart, one
more suit (second suit) in O.S. No.235/2008 was filed and
1
ILR 2007 KAR 339
– 10 –
RSA No. 1657 of 2013
same was dismissed for non-prosecution. Then the third suit in
O.S. No.156/2010 (from which present appeal is filed) is hit by
Order II Rule 2 of the Code of Civil Procedure (Code).
18. In support of his contention, learned Senior Counsel
would refer to the following judgments:
1. Sarguja Transport Service vs. State
Transport Appellate Tribunal, Gwalior and
others2
2. Union of India vs. Vasavi Co-op. Housing
Society Ltd and others3
3. Bondar Singh and others vs. Nihal Singh
and others4
6. Ramjas Foundation and Another vs Union of
India and Others7
19. The learned counsel appearing for the plaintiffs/
respondents No.1 to 7 would urge that the suit is maintainable
as the plaintiffs have established the title as well as possession
of the property.
2
AIR 1987 SC 88
3
AIR 2014 SC 937
4
(2003) 4 SCC 161
5
ILR 2012 KAR 1020
6
ILR 1996 KAR 1340
7
(2010) 14 SCC 38
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RSA No. 1657 of 2013
20. It is urged that the appellants cannot dispute the
title of the plaintiffs as the appellants claim that Abdul Basith
from whom appellant No.2 claims title, purchased the property
from plaintiff No.7. Since there is no registered sale deed by
plaintiff No. 7 in favour of Abdul Basith, it is urged that the
plaintiffs title is established.
21. It is also urged that the suit in O.S.No.156/2010
which is filed after the withdrawal of earlier suit in
O.S.No.191/2008, and dismissal of suit in O.S.No.235/2008 for
non-prosecution, is not hit by Order II Rule 2 of the Code. It is
submitted that cause of action for each suit is different.
22. In addition, it is also urged that the alleged sale
deeds dated 07.12.1989, 23.06.1995 being unregistered
cannot be looked into for any purpose including the nature of
possession. Another contention is the plaintiffs No.1 to 6 are
not parties to the said agreements for sale.
23. In the alternative, learned counsel appearing for the
contesting respondents would also urge that, assuming that the
appellants are in possession of the property, in view of the law
in Smt. Narayanamma and others vs Sri. Rajappa and
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RSA No. 1657 of 2013
others,8 the decree for possession can be granted directing the
plaintiffs to pay the Court fee required to be paid in a suit for
possession.
24. The application for production of additional
documents is opposed on the premise that the documents
cannot be accepted at this belated stage and sufficient cause is
not made out for belated production.
25. In support of his contention, the learned counsel for
the contesting plaintiffs-respondents has placed reliance on the
following judgements.
1. Padhiyar Prahladji Chenaji (Deceased) Through
L.R.s v. Maniben Jagmalbhai (Deceased) Through
L.R.s and Others9
2. Maria Margadia Sequeria Fernandes and Others
v. Erasmo Jack De Sequeria (D) Tr. Lrs. and
Others10
3. M/S Paul Rubber Industries Private Limited V.
Amit Chand Mitra & Another11
4. Ganpatlal v. Ganga Bai and Others12
5. Avinash Kumar Chauhan V. Vijay Krishna
13
Mishra
8
RSA No. 2681/2007 C/w RSA. No 2702/2007
9
(2022) 12 SCC 128
10 (2012) 5 SCC 370
11
2022 SCC OnLine 2031
12
2022 SCC OnLine MP 3371
– 13 –
RSA No. 1657 of 2013
26. The learned counsel appearing for respondent No.8
who is impleaded would submit that he is a purchaser of the
property under the registered sale deed dated 12.06.2014 from
plaintiff No.4, as such, he acquired title of the property covered
under the sale deed and the appellants cannot assert their
possession of the property based on their alleged unregistered
sale deeds. In addition, the submissions on behalf of
respondents No.1 to 7 are adopted to oppose the appeal.
27. The Court has considered the contentions raised at
the Bar and perused the records.
On Maintainability Of The Suit Filed After
Withdrawing Earlier Suit Without Seeking Liberty To
File Fresh Suit.
28. Prior to the filing of the suit in O.S.No.156/2010 for
the relief of declaration and injunction, the plaintiffs No.5 and 6
(except other plaintiffs in O.S. O.S.No.156/2010), filed
O.S.No.191/2008 for partition and separate possession, and in
the alternative for declaration and injunction. Said suit was
dismissed on a memo stating the dispute is settled Out-of-
13
AIR 2009 SC 1489
– 14 –
RSA No. 1657 of 2013
Court. Defendants did not sign the memo. Did not object for
withdrawal of the suit.
29. Later, one more suit was filed in O.S.No.235/2008
on 19.05.2008 by all the plaintiffs in O.S.No.156/2010, and
same was dismissed on 11.06.2009 for non-prosecution. The
said suit was for permanent injunction.
30. The present suit in O.S.No.156/2010 is filed on
15.07.2010 for the relief of declaration and permanent
injunction by all the plaintiffs in O.S.No.235/08.
31. The contention is, while withdrawing the suit in
O.S.No.191/2008, no liberty was sought to file a fresh suit as
such the suit in O.S. No.156/2010 is not maintainable.
32. It is to be noticed that, except for the plaintiffs No.
5 and 6 in O.S.No.156/2010 (subsequent suit) other plaintiffs
were not the plaintiffs in former suit in O.S. No.191/2008
though they were arrayed as defendants. Thus, bar urged
under Order XXIII Rule 1 (3) and (4) of the Code cannot apply
to those plaintiffs in O.S. No. 156/2010 who were not the
plaintiffs in O.S. No. 191/2008.
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RSA No. 1657 of 2013
33. Though in O.S.No.235/2008 (second suit), all the
plaintiffs in the third suit in O.S.No.156/2010 are parties, the
suit in O.S.No.235/2008 was only a suit for bare injunction and
same was dismissed for non-prosecution.
34. In the plaint of the present suit, the plaintiffs have
stated that when O.S. No.235/2008 was pending there was no
interference by the defendants and for said reason the suit was
not prosecuted and was dismissed for non-prosecution. The
alleged non-interference, as contended by the plaintiffs, was
the reason for not prosecuting the said suit or not, is a different
aspect of the matter. The appellants do not make a claim that
the suit was abandoned giving up the claim in respect of the
property or on account of some settlement said suit in O.S.
No.235/2008 was not pursued. For want of pleading and
evidence, in this behalf one cannot conclude that the said suit
was not withdrawn or abandoned to hold that the plaintiffs
gave up the claim over the suit property.
35. It must be borne in mind that Order XXIII Rule 1(3)
and (4) of the Code is grounded in the public policy that a
person should not be subjected to repeated litigation. The
contention that once a suit is withdrawn without liberty to file
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RSA No. 1657 of 2013
another suit, a second suit for the same property is not
maintainable under any circumstances seems far-fetched. In
the opinion of the Court, the provision may not have such a
broad implication to hold that the remedy is lost. If so, it may
have the effect of losing the right over the property as well.
36. Order XXIII Rule 1(3) and (4) of the Code cannot
be interpreted to mean that the withdrawal of a suit, in all
circumstances, amounts to abandoning the right over the
property thereby precluding a party from filing a fresh suit for
appropriate relief. Preventing the abuse of process, rather than
extinguishing a right or foreclosing a remedy, is the true
philosophy behind these provisions.
37. Keeping in mind the object behind the provision,
based on the available materials, the Court can decide whether
a second suit filed after the withdrawal of a former suit (without
leave) is barred or not. If not, the Court has to decide the case
on merits. The Court in such an event ordinarily will have to
order the plaintiff to pay the cost of earlier suit, if not ordered
when the suit was withdrawn earlier.
38. In other words, Order XXIII Rule 1(3) and (4) of the
Code is not inflexible and does not create an absolute bar to a
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RSA No. 1657 of 2013
second suit where liberty was not sought. However, if liberty to
file a fresh suit was sought and specifically refused, such case
falls into a different category. Otherwise, strict application of
the literal meaning to Order XXIII Rule 1(4) would lead to the
situation that the party has lost the remedy, if not the right in
the property, in every subsequent suit filed after a withdrawal
without liberty. Such a drastic consequence may not be the
intention behind the provision. The object is only to prevent
abuse of the process of the Court.
39. The earlier suit in O.S.No.191/2008 was one for
declaration, partition and permanent injunction and filed by
only 2 plaintiffs. The cause of action for partition is a recurring
cause of action.
40. The second suit filed by the plaintiffs in
O.S.No.235/2008 is not for partition and it is for injunction.
Said suit is dismissed for non-prosecution. It is again well
settled principle of law that in an injunction suit, the cause of
action is recurring and merely because the suit is withdrawn or
dismissed for non-prosecution, that does not mean that the
plaintiff in the said suit cannot file one more suit if there is a
different cause of action.
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RSA No. 1657 of 2013
41. If the different cause of action to file the
subsequent suit, is also a cause of action to claim a more
comprehensive relief of declaration in addition to the earlier
relief of injunction, then the such subsequent suit is not hit by
Order XXIII Rule 1 (3) of the Code.
42. The third suit i.e. O.S.No.156/2010, from whose
decree the present appeal is filed, is a suit for declaration and
injunction and is founded on a different cause of action. As
already noticed, it is not the case of the appellants that earlier
suit in O.S.No.191/2008 is dismissed as withdrawn on account
of settlement with the present appellants.
43. Learned Senior counsel appearing for the appellants
has relied on the judgment of the Apex Court in Sarguja
Transport Service (supra). The said judgment is delivered in
the context of a Writ Petition filed after withdrawing the earlier
writ petition without seeking any liberty to file fresh writ
petition, in respect of the same cause of action. It is noticed
that, in the said case the petitioner had filed a Writ Petition
challenging the order passed by the Appellate Tribunal which
had set aside the order of grant in favour of the writ petitioner
and directed the grant in favour of contesting respondent. Said
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RSA No. 1657 of 2013
petition was withdrawn without seeking leave to file a fresh
petition. Thus, the challenge to the Order of the Tribunal has
attained finality. In such event, cause of action cannot be
construed as a recurring cause of action. In that context, the
Apex Court held that, the petition under Article 226 of the
Constitution of India invoking an extraordinary jurisdiction
cannot be permitted for the same cause of action. Whereas, in
the instant case, the cause of action is a recurring cause of
action.
44. This being the position, the suit in O.S.No.156/2010
seeking declaration and injunction is per se not barred in view
of withdrawal of earlier suit O.S.No.191/2008. However, the
plaintiffs have to make out a case for grant of relief. Hence, the
second substantial question of law is answered in favour of the
respondents No.1 to 7/plaintiffs.
On Order II Rule 2 Of The Code:
45. As far as third substantial question of law which is
framed with reference to Order II Rule 2 of the Code is
concerned, the Court is of the view that the said question of
law does not arise. Order II Rule 2 of the Code would be
applicable in a situation where the plaintiff omits to include a
– 20 –
RSA No. 1657 of 2013
whole claim in respect of a cause of action and does not seek
leave of the Court to file the suit in respect of the said omitted
relief in a subsequent suit.
46. It is not the case of the appellants that property
which is not included in the earlier suit is made the subject
matter of the suit in O.S.No.156/2010. It is not the case of the
appellants that the plaintiffs ought to have claimed the relief of
declaration of title when they filed suit for injunction in O.S. No.
235/2008. Such a plea is not raised in the written statement.
Whether the plaintiffs had a cause of action to claim the relief
of declaration of title when the suit for injunction was filed in
O.S.No.235/2008 is a question of fact dependent on nature of
threat the plaintiffs perceived or nature of interference.
47. Thus, it is not open to the appellants now to
contend that the suit is hit by Order II Rule 2 of the Code
without raising the factual plea in the written statement as to
what was the nature of the cause of action in the earlier suit for
injunction. Thus, the third substantial question of law i.e., “was
not the suit of the plaintiff hit by Order II Rule 2 of CPC.” does
not arise or even if it does arise the answer has to be in favour
of the plaintiffs.
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RSA No. 1657 of 2013
On the plaintiffs’ title over the suit property:
48. In the instant case, the appellant No.2 traces his
title under the unregistered sale deed dated 23.05.1995 said to
have been executed by Abdul Basith. Said Abdul Basith claims
to have purchased the property from plaintiff No.7 under an
unregistered sale deed dated 07.12.1989. Thus, appellant No.2
admits the title of plaintiff No.7, if not all the plaintiffs. Since
Abdul Basith and appellant No.2 claim title under unregistered
sale deeds and appellant No.1 claims title through a registered
gift deed from appellant No.2 who did not acquire title for want
of registration, there is no difficulty to hold that appellants have
no title over the property.
49. The reliance on the judgment of the Apex Court in
Vasavi Co-op. Housing Society Ltd and others (supra), is
of no assistance to the case of the appellants wherein the Apex
Court has reiterated the well settled legal position that in a suit
for declaration of title onus in on the plaintiff and he cannot
stand on the weakness of the defendants.
50. In the instant case, the plaintiffs’ claim relating to
inheritance of property is admitted in the cross-examination of
DW.1. The property records also stood in the name of Hakeem
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RSA No. 1657 of 2013
Ahmad Shariff since 1991. Defendant No.1 claims that said
Hakim Ahmed Shariff’s son – plaintiff No.7 sold the property to
Abdul Basith through unregistered sale deed. There is no
dispute among the plaintiffs that the suit property belongs to
them though part of it stood originally in the name of plaintiff
No.7 or his father. Thus, there is no difficulty in accepting the
concurrent finding that the plaintiffs are the owners, more so in
a situation where the appellant No.1 though claims right under
a registered gift deed when the donor and donor’s vendor who
claim title under unregistered sale deeds did not have title.
On The Issue Relating To Possession:
51. Since the appellants also urge to consider the
additional documents filed under Order XLI Rule 27 of the
Code, to substantiate their contention relating to possession, it
is necessary to consider whether appellants have made out a
case for production of additional documents.
52. After the dismissal of suit in O.S. No.156/2010
(from which the present appeal arises) the plaintiffs filed appeal
against the decree dismissing the suit in O.S. No.156/2010,
and simultaneously filed suit in O.S. No.132/2013 claiming
declaration and possession. After the disposal of R.A. No.
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RSA No. 1657 of 2013
138/2012, the judgment and decree of which are questioned
here, the suit in O.S. No. 132/2013 is withdrawn. Filing of suit
in O.S. No.132/2013 is not in dispute. In the said plaint the
plaintiffs/respondents No. 1 to 7 seek possession from the
present appellants. This was not brought to the notice of the
Appellate Court.
53. The plaintiffs have filed one more suit in O.S. No.
148/2014 for declaration and partition and the appellants are
also arrayed as defendants. Said document is also not in
dispute.
54. Thus, the Court is of the view that the application
for production of documents, which admittedly are the
pleadings of respondents No.1 to 7, in the suits filed by
respondents No.1 to 7, subsequent to the disposal of the suit
in O.S. No. 156/2010, have to be allowed as respondents No.1
to 7 have not denied the pleadings in the said subsequent suits.
The question is whether matter is to be remanded to the Trial
Court to consider the additional evidence allowed by this Court.
55. The Court is of the view that there is no need to
remand the matter since the documents produced along with
the applications under Order XLI Rule 27 of the Code are the
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RSA No. 1657 of 2013
pleadings of the plaintiffs and the documents not being
disputed, the documents can be considered in evidence.
56. On considering the said documents which
respondents cannot deny, and also considering the other
evidence placed before the Trial Court, the Court is of the view
that the defendants/appellants are in possession of the portion
of the suit property covered in the gift deed dated 29.04.2004
without title over it and the plaintiffs are the owners of the
entire suit property.
Whether the suit for declaration of title and
injunction can be decreed in part granting only
declaration, in case plaintiff’s title is established
and possession is with the defendants despite the
bar contained in Section 34 of the Specific Relief
Act, 1963 ?
Or,
Can the Court declare the title and deny the
consequential relief, or can mould the relief and
grant the decree for possession as well if the
appropriate consequential relief of possession is
not claimed?
57. The learned Senior counsel appearing for the
appellants stressed on Section 34 of the Act,1963 and the
– 25 –
RSA No. 1657 of 2013
judgment of the Co-ordinate Bench of this Court in Sri
Aralappa (supra) to urge that the suit is to be dismissed for
not seeking relief of declaration and possession in place of
declaration and injunction.
58. The Co-ordinate Bench in Aralappa (supra),
interpreted the said provision and held that that granting
declaration without possession would lead to an
anomalous situation where the person declared as title
holder is not in possession and the person in possession
has no title.
59. However, the Supreme Court in Akkamma and
others V. Vemavathi and others14, held declaration can be
granted even if consequential relief is not tenable. The
Apex Court held that where title is established without
possession, absence of a prayer for possession and if the
consequential prayer sought is defective prayer of
injunction, does not bar the grant of declaratory relief,
even if the defendant is in possession.
60. The Apex Court in Akkamma (supra), has noticed
the judgment in Aralappa (supra).
14
(2021) SCC OnLine SC 1146
– 26 –
RSA No. 1657 of 2013
61. In Akkamma (supra), the prayer for consequential
relief of possession was not sought in the suit and in the relief
sought was declaration and injunction. In the said case the
plaintiff filed a suit for bare injunction in 1982. Same was
dismissed. The decree was confirmed in Appellate Court. Then
in 1987 the plaintiff filed another suit for declaration and
injunction. Same was dismissed holding that the plaintiff is not
in possession and Court relied on judgment in Aralappa
(supra).
62. In Akkamma (supra), the prayer for possession
was sought as an alternative relief in the appeal before the
High Court by way of amendment. It was rejected as the High
Court felt that the relief should have been claimed in 1987
when the suit was filed as there was already and finding in the
earlier suit that the defendant is in possession and said finding
had attained finality. In the said circumstances where the relief
of possession was declined for a valid reason, the Apex Court
granted only the declaration of title.
63. In view of the law in Akkamma (supra), there is
no impediment to confirm the relief of declaration granted by
First Appellate Court.
– 27 –
RSA No. 1657 of 2013
64. The law laid down by the 3 Judge bench of the Apex
Court in Mst. Rukmabai vs. Lala Laximinarayan and
Others15 is worth referring to at this stage. In paragraph 31 of
the judgment referring to Section 42 of the Specific Relief Act,
1877 which is pari materia with Section 34 of the Act 1963 the
Apex Court has held as under:-
“31. The next question raised by the learned counsel for
the appellant is that the suit should have been dismissed in
limine as the plaintiff asked for a bare declaration though
he was in a position to ask for further relief within the
meaning of Section 42 of the Specific Relief Act. The proviso
to Section 42 of the said Act enacts that “no Court shall
make any such declaration when the plaintiff, being able to
seek further relief than a mere declaration of title, omits to
do so”. It is a well-settled rule of practice not to
dismiss suits automatically but to allow the plaintiff
to make necessary amendment if he seeks to do so.
The learned Counsel for the appellant contends that in the
plaint the cause of action for the relief of declaration was
given as the execution of the partition decree through the
Commissioner appointed by the Court and, therefore, the
plaintiff should have asked for a permanent injunction
restraining the appellant from interfering with his
possession. The appellant did not take this plea in the
written statement; nor was there any issue in respect
thereof, though as many as 12 issues were raised on
the pleadings; nor does the judgment of the learned15
AIR 1960 SC 335
– 28 –
RSA No. 1657 of 2013
District Judge disclose that the appellant raised any
such plea. For the first time the plea based on Section
42 of the Specific Relief Act was raised before the
High Court, and even then the argument advanced was
that the consequential relief should have been one for
partition : the High Court rejected the contention on the
ground that the plaintiff, being in possession of the joint
family property, was not bound to ask for partition if he did
not have the intention to separate himself from the other
members of the family. It is not necessary in this case to
express our opinion on the question whether the
consequential relief should have been asked for; for, this
question should have been raised at the earliest point
of time, in which event the plaintiff could have asked
for necessary amendment to comply with the
provisions of Section 42 of the Specific Relief Act. In
the circumstance, we are not justified in allowing the
appellant to raise the plea before us.”
(Emphasis supplied)
65. The 3 judge bench of the Apex Court Mst.
Rukmaba, supra has held that if appropriate consequential
relief as mandated under Section 42 of the Specific Relief Act,
1877 is not sought the Court has to afford an opportunity to
amend the plaint. Said ratio applies to Section 34 of the Act,
1963 as the provision is pari materia with Section 42 of the Act,
1877.
– 29 –
RSA No. 1657 of 2013
66. In addition the Apex Court has held that the plea
relating to maintainability of the suit for not meeting the
requirement of Section 42 is to be raised in the written
statement and such plea cannot be raised in appeal.
67. In the instant case, such plea is not raised in the
written statement. The Trial Court dismissed the suit for want
of possession, without reference to Section 34 of the Act, 1963.
The opportunity was not given to amend the plaint despite
recording a finding that the plaintiffs are the owners.
68. It is also necessary to refer to Section 34 of the Act,
1963, which 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.
– 30 –
RSA No. 1657 of 2013
Explanation.–A trustee of property is a “person
interested to deny” a title adverse to the title of some
one who is not inexistence, and for whom, if in existence,
he would be a trustee.”
(Emphasis supplied)
69. The provision aims at avoiding multiplicity of
litigation and prompts the parties to make the suit
comprehensive. That is the primary purpose of the provision.
The provision does not intend to penalise or punish the party
for not complying the requirement of the proviso to Section 34
of the Act, 1963 by denying the declaration or any other relief
which the plaintiff is otherwise entitled.
70. Since the Apex Court in Akkamma (supra), has
held that even if appropriate consequential relief is not sought
and consequential relief sought (in that case) was
inappropriate, relief of declaration can be granted, the word
‘shall” in proviso to Section 34 may be read as “may’.
71. In case, the relief is not moulded or amendment is
not permitted in deserving cases, the anomaly continues. Even
if the plaintiff proves the title or establishes that he is entitled
to the declaration sought, and in case the suit is to be
dismissed resorting to proviso to Section 34 of the Act, 1963,
– 31 –
RSA No. 1657 of 2013
because of omission to claim consequential relief, or because of
defective consequential relief, the defendant will continue to
enjoy the property or will have a benefit of decree of dismissal.
Such situation has to be avoided.
72. There is one more dimension to Section 34 of the
Act, 1963, in the light of declaration of law in Akkamma
(supra). In view of the declaration of law, which permits that
the relief of declaration of title (or any other declaration
sought) can be granted by declining the defective or
inappropriate consequential relief, then probably armed with
said declaration, the plaintiff may sue for possession of the
property if he is declared as the owner. And the plaintiff may
urge that the such second suit is maintainable and the cause of
action is different and Order II Rule 2 of the Code does not
apply. Such situation also has to be avoided.
73. It is true that the language in Section 34 of the Act,
1963 is plain, simple and unambiguous. As a general rule the
plain grammatical meaning must be adhered to while
construing the provision. However, such application results in
weird situations described above where despite being the
owner the plaintiff may lose case and despite being not the
– 32 –
RSA No. 1657 of 2013
owner, or being a trespasser, the defendant may continue to be
in possession, for want of appropriate consequential prayer in
the plaint. In a way that amounts to unjust enrichment.
74. The Court is of the view that the combined reading
of the Section 34 of the Act, 1963 and the ratio in two
judgments of the Apex Court in Mst. Rukmabhai, and
Akkamma (supra), leads to the conclusion that, before
deciding the suit governed by proviso to Section 34 of the Act,
1963, instead of dismissing the suit either for want of
consequential relief or appropriate consequential relief the
Court has to consider the following recourse.
(a) If appropriate consequential relief as required under
Section 34 of the Act, 1963 is not sought along with the
relief of declaration, the Court has to give opportunity to
the plaintiff to amend the plaint, and consider the plea for
amendment before deciding the suit on merits.
(b) The plea to amend the plaint to incorporate the
appropriate prayer for consequential relief can be granted
at any stage even in second appeal in High Court, subject
to just exceptions governing Order VI Rule 17 of the
Code.
– 33 –
RSA No. 1657 of 2013
(c) If the plaintiff does not amend the plaint seeking
appropriate consequential relief despite opportunity being
granted by the Court, the plaintiff will run at the risk of
dismissal of the suit.
(d) If the plea that the suit is hit by proviso to Section 34 is
not raised, in the written statement, it cannot be
permitted to be raised in the appeal as held by the Apex
Court in Mst. Rukmabhai (supra).
(e) If the plea under proviso to Section 34 is not raised in the
suit, even if the consequential relief is not claimed, the
Court may grant the relief of declaration.
(f) In deserving cases, if the evidence on record makes an
unbeatable case for the plaintiff, and if the appropriate
consequential prayer is only a formality, the Court can
mould the relief and grant appropriate consequential
relief subject to payment of additional court fee is any
attracted.
The ratio formulated in clause(f) for clarity can be
illustrated in two Examples.
– 34 –
RSA No. 1657 of 2013
(i) In a suit for declaration of title and injunction, if
the defendant sets up a plea of adverse
possession, and if the plaintiff establishes title and
fails to establish possession and if the defendant
establishes possession but fails to establish title by
adverse possession, the Court can mould the relief
to grant declaration and possession as the
defendant would have no defence left to permit
him to contest the prayer for possession.
(ii) In a suit for declaration that defendant has built
and structure encroaching the plaintiff’s property
and injunction, if the defendant denies plea of
encroachment, and in case encroachment within 3
years from the date of suit is proved, the Court can
mould the relief to grant declaration and
mandatory injunction instead of dismissing the suit
for want of appropriate consequential relief of
mandatory injunction.
75. It is also required to be noticed that, the appellants
have not claimed title over the property by way of adverse
possession.
76. The learned counsel for the appellants
contended that had the plaintiffs sought possession, the
defendants would have pleaded and proved adverse
possession. This contention is legally tenable in principle.
– 35 –
RSA No. 1657 of 2013
However, in the factual matrix of the present case, the
said contention is not acceptable. The reason is, Abdul
Basit from whom the defendants trace their title and
possession over the property did not possess the property
for 12 years. Even defendant No.1 did not possess the
property for 12 years from 1995 when he claims to have
purchased the property through unregistered sale deed
said to have been executed by Abdul Basit. Defendant
No.1 claims title through defendant No.2 who did not have
title and defendant No.1 did not possess the property for
12 years before filing the suit.
77. Thus, viewed from any angle, the plea of
adverse possession is not available to the defendants.
Thus, the contention of the defendants that they would
have raised the plea of adverse possession had the suit
been filed for possession cannot be accepted.
78. The omission on the part of the plaintiffs to
seek the relief of possession has not caused any prejudice
to the defence that could have been raised by the
defendants.
– 36 –
RSA No. 1657 of 2013
79. In this backdrop, this Court is of the view that
the relief of possession could have been granted by
moulding the relief. However certain other facts of the
case, discussed below do not permit such exercise.
80. The Court is of the view that the plaintiffs
suppressed certain facts. Despite filing the suit for declaration
and possession, the plaintiffs pursued the First Appeal in R.A.
No.138/2012 contending that they are in possession of the
property.
81. Either the plaintiffs could have pursued
R.A.No.138/2012 asserting that they are in possession or
having filed O.S.No.132/2013 seeking possession, they should
not have filed RA No.138/2012 and should have withdrawn R.A.
No.138/2012. That is not done.
82. Added to that, it was not brought to the notice of
First Appellate Court that one more suit is filed by them
claiming possession over the same.
83. In addition, admittedly one more suit for partition
and separate possession is still pending in O.S. No.148/2014.
The appellants who are said to be in possession of some portion
– 37 –
RSA No. 1657 of 2013
of the suit property claim to have put up a structure. In the
said partition suit appellants are made parties. Thus, subject to
proof that the appellants have put up the structure, may be
appellants are either entitled to value of the
structure/improvement if any made or entitled to remove the
structure and fixtures. For this purpose there has to be an
adjudication and there is no need to file one more suit. Said
adjudication shall take place in O.S. No.148/2014.
84. It is made clear that the appellants will have no
opportunity to plead title over the property, plea of Order II
Rule 2, or limitation, but may make a claim to claim to
dismantle the structure or claim the value of the structure.
85. Learned counsel appearing for the respondents
have placed reliance on the judgment of this Court in
Narayanamma (supra), to contend that, in case the appellants
are found to be in possession of the property, there has to be a
decree for possession and appellants are willing to pay the
court fee.
86. The Court is of the view that, though the law laid
down in Narayanamma (supra), would not apply to the
– 38 –
RSA No. 1657 of 2013
present case for the reasons assigned in paragraphs 80 to 83
supra.
87. In view of the fact that the defendants are
found to be in possession of a portion of the suit property
without title, and the plaintiffs are the established owners,
the First Appellate Court’s decree of declaration is
confirmed.
88. However, in view of the peculiar facts already
discussed, the delivery of possession shall be pursuant to
adjudication in O.S. No.148/2014 pending before the Trial
Court.
89. Since the plaintiffs have suppressed the fact
relating to possession, and have filed multiple suits seeking
different relief and subjected the defendants to multiple
litigations, shall pay Rs.50,000/- cost the defendants.
90. Since, respondent No.8 is a pendente lite
purchaser, he is bound by the Judgment.
91. Before concluding, the Court deems that following
observations may not be out of place.
– 39 –
RSA No. 1657 of 2013
92. In the light of the law laid down in Akkamma v.
Vemavathi (2021), the lawmakers may have to revisit the
recommendations of the 9th Law Commission Report
(1958) which suggested the amendment to omit the
proviso to Section 42 of the Act, 1877. Same provision
finds place as Section 34 of the Act, 1963 and has been the
cause for technical dismissal of substantive claims.
Consequently, the debate surrounding Section 34 persists.
Implementing the Commission’s recommendations may serve
as the solution to the controversy surrounding the proviso to
Section 34, to ensure that substantive right and justice do not
yield to technicality.
93. Hence the following:
ORDER
(i) Appeal is allowed-in-part.
(ii) Impugned judgment and decree dated
26.06.2013 passed by the II Additional
Senior Civil Judge, Kolar (Itinerating at
Mulbagal) in R.A.No.138/2012 are set-aside
in part.
(iii) Plaintiffs are declared as the owners of the
suit schedule property.
– 40 –
RSA No. 1657 of 2013
(iv) The Trial Court in O.S.No.148/2014 shall
determine the value of the structure, if any,
put up by the appellants on the suit
property and shall direct the plaintiffs to
pay the same to the appellants.
(v) On such payment, the suit property shall be
delivered to the plaintiffs. If the very
property is purchased by the respondent
No.8, and if there is consensus on the said
issue between the plaintiffs and respondent
No.8, said property shall be handed over to
the respondent No.8 who claims to be
pendente lite purchaser.
(vi) If there is dispute between the plaintiffs and
respondent No. 8 as to the exact portion of
the property purchased by respondent No.8
who shall be impleaded as defendant No.3,
same shall be decided the said suit.
(vii) The aforementioned exercise in
O.S.No.148/2014 shall be in addition to any
other adjudication that requires
consideration in terms of issues raised in
the said proceeding. However, it is made
clear that the appellants will have no
opportunity to plead title over the property,
– 41 –
RSA No. 1657 of 2013
raise plea of Order II Rule 2, or limitation,
but may make a claim to claim to
dismantle the structure or claim the value
of the structure.
(viii) Interim application for production of
documents allowed.
(ix) The appellants are entitled to Rs.25,000/-
towards cost from the plaintiffs.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
BRN
..
