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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

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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

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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

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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 mis­joinder and

non­joinder 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

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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 sub­divided 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.

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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

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that PW 1, the plaintiff having deposed in his

cross­examination, 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 non­joinder 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 sub­divided 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

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and  188/3  belong to  Temple  and survey  No.  188/2

belongs to Janaki Ammal who having not impleaded,

the suit is bad for mis­joinder and non­joinder 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

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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

mis­joinder and non­joinder of necessary party.

Further, the description of the property in the

plaint was incorrect and in­spite of the amendment

of the plaint, no correction having been made in

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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

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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

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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,

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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.

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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

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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 plaintiff­respondent as Exhibit A­14.

The Deed dated 29.7.1974 has been specifically

considered by the trial court in para 9 of the

judgment. The trial court has in its judgment

noticed that plaintiff came with the case in the

plaint that suit property was inherited by

Padmanabhan, however, he relied on Exhibits A­12 to

A­14 with regard to which there was no pleading in

the plaint. In his deposition, PW.1 admitted that

“it is correct to say that without disclosing this

deed in the plaint I filed Exhibits A­12 to A­15”.

When there  was no pleading in the plaint regarding

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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 sub­divided as 188/1, 188/2, 188/3. The

deeds through which plaintiff claims title i.e.

28.8.1982, General Power of Attorney dated

31.10.2007 and sale deed dated 05.11.2007 do not

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refer to any sub­division. The plaintiff although

amended the schedule property from part of Plot No.

188 as Survey No.188/3 but he failed to prove his

title over Plot No.188/3. We, thus, do find that

the trial court after considering the document

dated 29.7.1974 held that plaintiff failed to prove

his title.

24. As noted above, there was categorical finding

by trial court and First Appellate Court that

Defendant No. 1 is the owner of Survey No. 188/1 (2

acres and 2 cents) and 188/3(2 acres and 88 cents).

In the documentary evidence, filed by the defendant

both the aforesaid sub divisions i.e. Survey No.

188/1 and 188/3 were recorded as the Temple

property. In the property records maintained by the

Hindu Religious & Charitable Endowment Department

also Survey Nos. 188/1 & 188/3 were recorded in the

name of Temple. Extract of the property registered

was produced before the courts below which was

believed.

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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

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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

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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

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person. I have not initiated any action to include Janaki Ammal as a party to this suit.”

29. In view of the statement of the plaintiff

himself that Survey No. 188/2 is in the name of

Janaki Ammal, the observations of the High Court

that no documentary evidence was filed for the

purpose of establishing that Survey No. 188/2

stands in the name of Janaki Ammal are erroneous

and mis­placed. When Plaintiff himself admitted

that Survey No. 188/2 is recorded in the name of

Janaki Ammal, there was no basis for the High Court

to come to conclusion that plaintiff is entitled

for the area apart from 5 acres and 10 cents, which

belonged to the Temple.

20. As noted above, one of the issues framed, as to

whether the suit is bad for non­joinder of

necessary party. The said issue was answered

against the plaintiff and it was held that suit is

bad for non­joinder of Janaki Ammal a necessary

party, whose name was recorded against Survey No.

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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

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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

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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 1972 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

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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 fact­finding 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.

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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

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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.