Suit for declaration without recovery not maintainable
A suit for declaration of title without seeking recovery of possession is not maintainable when the plaintiff is not in possession of the property, under Section 34 of the Specific Relief Act of 1963.
This is what the Supreme Court (SC) reiterates in the case Vasantha (dead) through LR v Rajalakshmi @ Rajam (dead) through LRs.
In this case, the Plaintiff sought mere declaration of title without seeking the consequential relief of recovery of possession. The plaintiff was not in possession at the time of instituting the proceedings.
The judgements SC relied on
In Union of India v Ibrahim Uddin [(2012) 8 SCC 148] the SC stated that the courts, under Section 34 of the Specific Relief Act, have discretion to declare status or right, however, the court shall not make any such declaration of status or right where the complainant, being able to seek further relief than a mere declaration of title, omits to do so.
In Ram Saran v Ganga Devi [(1973) 2 SCC 60] the SC held that the suit seeking for declaration of title of ownership but where possession is not sought, is hit by the proviso of Section 34 of the Specific Relief Act, 1963 and, thus, not maintainable.
What the Section 34 of the Specific Relief Act says
“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.
Explanation. —A trustee of property is a “person interested to deny” a title adverse to the title of someone who is not in existence, and whom, if in existence, he would be a trustee.”
SC dismissed the appeal
Considering the ratio decidendi laid down in these precedents and the Section 34 of the Specific Relief Act, the SC opined that the plaintiff in this case did not attempt to amend the plaint to seek the relief of recovery of possession and hence the court dismissed the appeal as it was not maintainable.
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