“When the plaintiff being a wrong doer is not entitled to claim an equitable relief of declaration of title under Section 34 of Specific Relief Act”-EXPLAIN

The declaratory relief under Section 34 of Specific Relief Act is purely a discretionary and equitable relief. To claim such equitable and discretionary relief, the plaintiff has to approach the Court with clean hands. The plaintiff himself claimed that he perfected his title by adverse possession that means wrongful possession. When the plaintiff being a wrong doer is not entitled to claim an equitable relief of declaration of title under Section 34 of Specific Relief Act.

The Apex Court in Union of India (UOI) v. Ibrahim Uddin And Anr. clearly held that the relief of declaration under Section 34 of Relief Act is a discretionary relief and unless the plaintiff approached the Court with clean hands, he is not entitled to claim declaration of title.

In Union of India (UOI) and Ors. v. Vasavi Co- op. Housing Society Ltd. and Ors. the Apex Court while deciding the appeal relating to declaration of title, is of the view that the legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. In view of this Court even if the title set up by the defendants is found against, in the absence of establishment of plaintiffs own title, plaintiff must be non-suited.

It is trite law that, in a suit for declaration of title, burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.

In view of the principles laid down in the above judgments and applying in the principles laid down in Gurdwara Sahib v. Gram Panchayat Village Sirthala and another and Mohan Lal (deceased) through his Lrs.Kachru and others v. Mirza Abdul Gaffar and another (referred supra), the plaintiff is not entitled to claim declaratory relief, which is equitable and discretionary one, on this ground also the plaintiff has to be non suited for the relief of declaration of title to the property.

The plaintiff also claimed permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the property. Undisputedly, father of the 1st defendant is the owner of the property, after his death the 1st defendant became the owner, from whom the other defendants purchased the property. Plaintiff did not seek relief of Specific performance, though he allegedly purchased the same under unregistered sale deed, but he filed the suit for declaration based on alleged unregistered sale deed and permanent injunction.

According to Section 41 (h) of the Specific Relief Act, when equally efficacious remedy is available to the plaintiff, the plaintiff is disentitled to claim permanent injunction. In the present facts of the case, equally efficacious remedy available to the plaintiff is to seek specific performance, in such case he is not entitled to claim permanent injunction, apart from Section 41 (h), when the plaintiff has no personal interest in the property in view of the bar under Section 41 (j) of Specific Relief Act the plaintiff is not entitled to equitable relief of injunction.

Yet the other contention of the plaintiff is that he is in continuous possession and enjoyment of the property and thereby entitled to protection under Section 53-A of Transfer of Property Act. No doubt, if the plaintiff is in possession and enjoyment of the property being the purchaser under a written agreement of sale subject to satisfying the other conditions to claim benefit under Section 53-A of Transfer of Property Act, he is entitled to protect his possession by invoking Section 53-A of the Transfer of Property Act, but it cannot be used to claim permanent injunction. Moreover, the unregistered sale deed (in writing) was not produced by the plaintiff to invoke protection under Section 53-A of Transfer of Property Act. On the other hand, it is settled law that no injunction can be granted against the true owner as held by the Apex Court in Mahadeo Savlaram Shelke and Ors. v. Puna Municipal Corporation and Anr. . In the said judgment when a question arose before the Apex Court that whether injunction could be granted against rightful owner in favour of person who remains in unlawful possession?, the Apex Court held that no injunction could be granted against true owner at the instance of the person, who is in wrongful possession. If the principle laid down in the Puna Municipal Corporation and Another is applied to the present facts of the case, the plaintiff, who is claiming possession wrongfully against the true owner, is not entitled to claim permanent injunction against the defendants. Therefore, the plaintiff is not entitled to claim permanent injunction against the defendants in view of the bar under Section 41 (h) and (j) of the Specific Relief Act, so also in view of the principle laid down by the Apex Court in the judgment referred supra. Accordingly, the substantial question of law is answered.

One of the major contentions raised before this Court is that the jurisdiction of this Court in second appeal is limited to substantial question of law only and the Court cannot enter into deciding any other aspect based on pleadings and placed reliance on a judgment of the Apex Court in Damodar Lal v. Sohan Devi and others (referred supra), wherein the Apex Court held that the interference of the Court in the second appeal is not permissible unless such findings are based on no evidence or are perverse, then it should determine whether finding(s) concerned are perverse. Said determination should be based on a reasonable mans inference on facts. To the reasonable man, if conclusion on facts in evidence made by court below is a possible one, there is no perversity, and if not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity, nor will a wrong finding of fact by itself constitute a question of law. Therefore, in order to constitute a question of law, the wrong finding should stem out of a complete misreading of evidence or it should be based only on conjectures and surmises.

There is no dispute about the law laid down by the Apex Court, but in the present facts of the case, the plaintiff is not entitled for declaration of title in the absence of evidence and pleading since the pleading is heart and soul of civil litigation. When a question which goes to the root of the case, such question can be said to be a substantial question of law as held by the Apex Court in State Bank of India and Ors. v. S.N.Goyal . [ Andhra High Court in Meenugu Mallaiah And Others vs Ananthula Rajaiah And Another, decided on 9 September, 2016 in SECOND APPEAL No.383 of 2004 by THE HONBLE SRI JUSTICE M.SATYANARAYANA MURTHY]