AKKAMMA & ORS.versusVEMAVATHI & ORS.

                          [2021] 10 S.C.R. 1187                           1187


                        AKKAMMA & ORS.                                    A
                                  v.
                       VEMAVATHI & ORS.
                   (Civil Appeal No. 5884 of 2009)
                                                                          B
                       NOVEMBER 25, 2021
   [L. NAGESWARA RAO AND ANIRUDDHA BOSE, JJ.]
       Specific Relief Act, 1963 – s.34 – Two suits were filed in 1982
and 1987 in respect of the suit property – The 1982 suit, for             C
perpetual injunction, was dismissed by the trial Court on the ground
that plaintiff could not establish his lawful possession – Appeal
was also dismissed by the High Court – The plaintiff alleged that
defendants made attempts to interfere with his possession, hence
1987 suit was founded – Suit was for declaration of ownership and
injunction – The trial Court held that plaintiffs proved ownership,       D
but the aspect of possession and obstruction went against the
plaintiffs – The suit was dismissed – High Court upheld the decision
of the trial Court – Before the High Court, the plaintiff had sought
to amend the plaint seeking alternative relief of possession of the
suit property, however, the said relief was denied – Before Supreme       E
Court, the appellants-plaintiffs having regard to the provision of
s.34 of the 1963 Act urged that the suit ought not to have been
dismissed as along with the claim for declaration, injunctive relief
was also sought – Held: The High Court was right in holding that
possession of the suit property was not established and hence
injunctive relief could not not be granted – The High Court was           F
also right in rejecting the plea for amendment – But that factor
ought not to be a ground for denying declaration of ownership to
the plaintiffs – There is no bar in the Specific Relief Act, 1963 in
granting stand alone declaratory decree – The Trial Court came to
a positive finding that the original plaintiff was the owner of the       G
suit property – But it held that in absence of declaration of relief of
possession by the plaintiff, declaration of title cannot be granted –
This line of reasoning is not correct – There is a misconstruction of
the provisions of Section 34 of the 1963 Act – The original plaintiff
was entitled to declaration that he was the absolute owner of the
                                                                          H
                                1187
1188            SUPREME COURT REPORTS                       [2021] 10 S.C.R.


 A     suit property – There is no bar in granting such decree for
       declaration and such declaration could not be denied on the
       reasoning that no purpose would be served in giving such
       declaration – May be such declaratory decree would be non-
       executable in the facts of the case, but for that reason alone such
       declaration cannot be denied to the plaintiff.
 B
             Partly allowing the appeal, the Court
              HELD: 1. The prohibition or bar contained in proviso to
       Section 34 of the 1963 Act determines the maintainability of a
       suit and that issue has to be tested on the basis the plaint is
 C     framed. If the plaint contains claims for declaratory relief as also
       consequential relief in the form of injunction that would insulate
       a suit from an attack on maintainability on the sole ground of bar
       mandated in the proviso to the aforesaid section. If on evidence
       the plaintiff fails on consequential relief, the suit may be dismissed
 D     on merit so far as plea for consequential relief is concerned but
       not on maintainability question invoking the proviso to Section
       34 of the 1963 Act. If the plaintiff otherwise succeeds in getting
       the declaratory relief, such relief could be granted. [Para 16]
       [1199-F-G]

 E           2. So far as the reliefs claimed in the suit out of which this
       appeal arises, prayer for declaration was anchored on two
       instances of interference with the possession of land of the
       plaintiffs and injunctive relief for restraint from interference with
       the property was also claimed. But possession of the said property
       by the original plaintiff was not established. The alternative relief
 F     sought to be introduced at a later stage of the suit was also found
       to be incapable of being entertained for the reason of limitation.
       Thus, the foundation of the case of the plaintiffs based on these
       two factual grounds collapsed with the fact-finding Courts rejecting
       both these assertions or allegations. But that factor ought not to
 G     be a ground for denying declaration of ownership to the plaintiffs.
       There is no bar in the Specific Relief Act, 1963 in granting
       standalone declaratory decree. The Trial Court came to a positive
       finding that the original plaintiff was the owner of the suit-property.
       But it held that in absence of declaration of relief of possession
       by the plaintiff, declaration of title cannot be granted. We have
 H
          AKKAMMA & ORS. v. VEMAVATHI & ORS.                            1189


already expressed our disagreement with this line of reasoning.         A
It seems to be a misconstruction of the provisions of Section 34
of the 1963 Act. The Trial Court and the High Court have
proceeded on the basis that the expression “further relief”
employed in that proviso must include all the reliefs that ought
to have been claimed or might have been granted. But in our
                                                                        B
view, that is not the requirement of the said proviso. This takes
us to the corollary question as to whether the 1987 suit could
have been held to be barred under the principle contained in
Order II Rule 2 of the Code of Civil Procedure, 1908. In opinion
of this Court, the said provisions of the Code would not apply in
the facts of this case, as the denial of legal right in the 1987 suit   C
is pegged on two alleged incidents of 15th and 25th February,
1987. These allegations can give rise to claims for declaration
which obviously could not be made in the 1982 suit. The claim
for declaratory decree could well be rejected on merit, but the
suit in such a case could not be dismissed invoking the principles
                                                                        D
incorporated in Order II Rule 2 of the Code of 1908.
[Para 17][1200-C-H; 1201-A-B]
       3. The High Court has proceeded on the footing that in the
subject-suit, the original plaintiff must have had asked for relief
for recovery of possession and not having asked so, they became         E
disentitled to decree for declaration and possession. But, the
proviso to Section 63 of the 1963 Act requires making prayers
for declaration as well as consequential relief. In this case, if the
relief on second count fails on merit, for that reason alone the
suit ought not to fail in view of aforesaid prohibition incorporated
in Section 34 of the 1963 Act. [Para 18][1201-B-D]                      F

      4. The first suit was for perpetual injunction, in which the
original plaintiff lost for failing to establish possession. In the
second suit (the 1987 suit), reliefs were claimed for declaration
based on allegation of subsequent disturbances and on that basis
injunctive relief was asked for. The plaintiffs’ claim for being in     G
possession however failed. Thus, no injunction could be granted
restraining the defendants from disturbing or interfering with the
original plaintiffs’ possession of the suit land. But as the Trial
Court found ownership of the original plaintiff was proved, in our
view the original plaintiff was entitled to declaration that he was     H
1190            SUPREME COURT REPORTS                    [2021] 10 S.C.R.


 A     the absolute owner of the suit property. There is no bar in granting
       such decree for declaration and such declaration could not be
       denied on the reasoning that no purpose would be served in giving
       such declaration. May be such declaratory decree would be non-
       executable in the facts of this case, but for that reason alone such
       declaration cannot be denied to the plaintiff. Affirmative finding
 B
       has been given by the Trial Court as regards ownership of the
       original plaintiff over the subject-property. That finding has not
       been negated by the High Court, being the Court of First Appeal.
       In such circumstances, in opinion of this Court, discretion in
       granting declaratory decree on ownership cannot be exercised
 C     by the Court to deny such relief on the sole ground that the
       original plaintiff has failed to establish his case on further or
       consequential relief. [Para 19][1201-D-H; 1202-A]
             M. K. Rappai and Ors. vs. John and Ors. 1969 (2) SCC
             590 : [1970] (2) SCR 124; Ram Saran and Anr. vs. Smt.
 D           Ganga Devi 1973 2 SCC 60; Vinay Krishna vs. Keshav
             Chandra and Anr. 1993 Supp 3 SCC 129; Anathula
             Sudhakar vs. P. Buchi Reddy (Dead) By LRS. And Ors.
             2008 4 SCC 594 : [2008] (5) SCR 331; Venkataraja
             and Ors. vs. Vidyane Doureradjaperumal (Dead)
 E           Through Legal Representatives and Ors. 2014 14 SCC
             502 : [2013] (5) SCR 814 – relied on.
             Sri Aralappa vs. Sri Jagannath & others (ILR 2007
             Kar 339) – disapproved.
             Devish vs. M.K. Subbiah and Ors. AIR 1970 Mys 249;
 F           Navalram Laxmidas Devmurari vs. Vijayaben
             Jayvantbhai Chavda AIR 1998 Guj 17 – referred to.
                             Case Law Reference
       [1970] 2 SCR 124               relied on               Para 10
 G
       (1973) 2 SCC 60                relied on               Para 10
       (1993) Supp 3 SCC 129          relied on              Para 10


 H
           AKKAMMA & ORS. v. VEMAVATHI & ORS.                                    1191


[2008] 5 SCR 331                    relied on                  Para 10           A
[2013] 5 SCR 814                    relied on                  Para 14
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.5884
of 2009.
      From the Judgment and Order dated 21.07.2008 of the High Court             B
of Karnataka at Bangalore in R.F.A. No.331 of 2005.
     G. V. Chandrashekar, Ms. Apeksha D., N. K. Verma, Ms. Anjana
Chandrashekar, Advs. for the Appellants.
    Karunakar Mahalik, B. Vishwanath Bhandarkar, Sarbendra                       C
Kumar, V. N. Raghupathy, Advs. for the Respondents.
       The Judgment of the Court was delivered by
       ANIRUDDHA BOSE, J.
                                                                                 D
        1. The appellants before us are the plaintiffs in a suit instituted in
the year 1987 by their predecessor Arakeri Abbaiah claiming for
declaration of ownership of certain immovable property comprising of
10.54 guntas situated in Vibhuthipura Village, Krishnarajapura Hobli,
Bangalore South Taluk. Relief was also claimed in that suit in the form
of injunction directing the defendants therein not to interfere with his         E
peaceful possession and enjoyment of the suit-property. On his death,
Arakeri Abbaiah’s legal representatives were brought on record. In this
judgment, we shall refer to Arakeri Abbaiah as the original plaintiff. He
was the son-in-law of the first defendant in the suit- Muniyappa. Both
the defendants have passed away subsequently and their legal
                                                                                 F
representatives are on record. The original second defendant was the
son of the first defendant at the time the suit was instituted. Prior to this
suit, another suit was filed by the original plaintiff involving broadly the
same immovable property in the year 1982. We shall discuss about the
said suit later in this judgment and the two suits shall be henceforth
referred to by their years of institution, i.e. 1982 suit and 1987 suit          G
respectively. The case of the original plaintiff before the Trial Court was
that he had purchased the suit land from its erstwhile owner, Papaiah
under a registered sale deed dated 29th May, 1972. The total area of the
land that the original plaintiff claimed to have had purchased was 1 acre
15 guntas and the disputed property forms part of that block of land. In
                                                                                 H
1192             SUPREME COURT REPORTS                           [2021] 10 S.C.R.


 A     the plaint, the original plaintiff’s case was that he was in exclusive
       possession and enjoyment of the suit land ever since the date of purchase.
              2. The subject-suit, i.e. the 1987 suit was founded, inter-alia, on
       the allegation that the defendants were making attempts to interfere
       with the original plaintiff’s peaceful possession and enjoyment of the
 B     property. It was specifically alleged that on 15th February, 1987 the
       defendants interfered with the peaceful possession and enjoyment of
       the suit land. It has also been alleged in the plaint that attempt to trespass
       into the suit scheduled property was repeated by the defendants on 25th
       February, 1987. In the 1987 suit, as we have already indicated, reliefs
       claimed included declaration to the effect that the original plaintiff was
 C
       the absolute owner of the suit land and prayer was also made for
       permanent injunction.
              3. The original plaintiff had instituted the earlier suit in the Court
       of XVIII Additional City Civil Judge at Bangalore City. The 1982 suit
       was for perpetual injunction, and the claim for injunctive relief was similar
 D
       to that asked for in the 1987 suit though not on the same allegation of
       interference. The earlier suit was registered as O.S. No. 3029/82. The
       said suit was dismissed by the Trial Court on the ground that the plaintiff
       could not establish his lawful possession. The decision of the Trial Court
       in the 1982 suit was appealed against by the predecessor of the present
 E     appellants, but that appeal was also dismissed by the High Court of
       Karnataka on 25th November, 1986. It was thereafter the suit, from
       which the present appeal arises, was instituted showing threats of
       dispossession on the aforesaid two dates. This suit was contested by the
       defendants by filing written statement and they had set up title for
       themselves. The defendants raised the plea of purchase of the suit land
 F
       in benami transaction, and the first defendant claimed to be the real
       owner of the suit land. The said suit was dismissed on 7 th November,
       1997. It has, however, been stated in the list of dates contained in the
       paperbook that the Trial Court did not accept the defendants’ plea of
       benami transaction.
 G
              4. This judgment was appealed against by the plaintiff before the
       High Court. In appeal, the legal representatives of the original plaintiff
       were brought on record. The appeal was allowed by the High Court and
       the matter was remitted to the Trial Court. In the judgment of the High
       Court delivered on 19th August, 2004 by which the matter was remanded,
 H     it was, inter-alia, held and directed:-
           AKKAMMA & ORS. v. VEMAVATHI & ORS.                                   1193
                 [ANIRUDDHA BOSE, J.]

      “4. In this suit, the plaintiff has produced R o R extracts marked        A
      at Exs. P-4 to P.6 to prove his possession around the date of the
      suit. The Plaintiff, on his part, has tendered evidence. The
      Defendants although filed Written Statement, have failed to cross-
      examine the Plaintiff witnesses and failed to let in their evidence
      The dismissal of earlier injunction Suit would not come in the way
                                                                                B
      of the plaintiff to file a Suit to seek comprehensive relief of
      declaration of title. But the earlier Suit for permanent injunction
      was dismissed on the ground that the Plaintiff failed to prove his
      possession. The RoR extracts produced by Plaintiff at Exs. P. 4
      to P. 6 show that Plaintiff is in possession. The trial court without
      reference to the said evidence, has mechanically come to the              C
      conclusion that the filing of the present suit is not maintainable in
      view of the dismissal of the earlier suit and the related regular
      first appeal. In that view of the matter, it is just and necessary that
      the judgment of the Trial Court has to be set aside.
      5. Accordingly, the impugned judgment of the trial court is set           D
      aside and the matter is remitted to the Trial Court for fresh disposal
      in accordance with Law. If Defendants participate and request
      for summoning PW 1 and PW 2 for the purpose of Cross-
      examination, the request is to be granted and so also Defendants
      should be permitted to adduce their evidence. No fresh notices            E
      need be issued to the parties by the Trial Court. Parties are
      directed to appear before the Trial Court on 06/09/2004. LCRs to
      be transmitted forthwith. The suit is to be disposed of by the end
      of December 2004. The legal representatives of the appellant
      Plaintiff are entitled to get themselves impleaded in the suit by
      filing a memo and getting the cause title amended accordingly. It         F
      is said that PW 1 is dead. The Plaintiff is also entitled to adduce
      additional evidence if he so desires.”
      (quoted verbatim from the copy of the judgment as
      reproduced in the paperbook)
                                                                                G
       5. On remand, the Court of VIII Additional City Civil Judge at
Bangalore City in the judgment delivered on 18th December, 2004 found
that the plaintiffs (the plural form is being used as the suit was being
prosecuted from that point of time by legal representatives of the
deceased plaintiff) had proved ownership to the suit property. But on the
                                                                                H
1194                SUPREME COURT REPORTS                        [2021] 10 S.C.R.


 A     aspect of possession and obstruction thereto, the finding of the Court
       went against the plaintiffs. The defendants’ stand that the plaintiffs were
       never in possession of the property and there was no cause of action for
       the suit was upheld. The Trial Court went against the plaintiffs mainly on
       the ground that the plaintiff could not establish that he was in possession.
       The Trial Court referred to the evidence of the plaintiff witness no. 1,
 B
       i.e. the original plaintiff who had admitted that his father-in-law was in
       possession of the suit land and was cultivating thereon. In the 1987 suit,
       the original plaintiff could not demonstrate as to how he came in
       possession of the suit-land after dismissal of the 1982 suit. This suit was
       dismissed, inter-alia, on the following reasoning:-
 C
             “(i)     Though the plaintiff had admitted that the first defendant
                      was in possession and cultivation of the suit land, he did not
                      ask for relief for possession.
             (ii)     Mere suit for declaration was not maintainable without the
 D                    relief for possession. By declaring the plaintiff was the
                      owner of the property, no purpose would be served.”
             6. It was also held in that judgment that the suit was time-barred.
       On the point of limitation, it was held by the Trial Court, on remand:-
             “15. ……Further the dispute of title is confirmed by filing the
 E
             Written Statement by the Defendant No. 1 on 28/01/1983 but the
             Plaintiff filed the present suit on 02/03/1987 after lapses of 4 years
             2 months. The Plaintiff had to file this suit within 3 years from the
             date of filing the written statement by the present Defendant in
             O.S 3029/82. But filed after 4 years two months. So, the Suit filed
 F           by the Plaintiff for declaration of title is barred by time. Accordingly
             I answer Issue No. 5 in affirmative.”
             (quoted verbatim from the copy of the judgment as
             reproduced in the paperbook)

 G            7. Against this judgment of dismissal, the plaintiffs approached
       the High Court of Karnataka. The appeal was registered as Regular
       First Appeal No. 331 of 2005 and was ultimately dismissed on 21 st July,
       2008.
             8. We find from the judgment under appeal that in course of hearing
 H     before the High Court, the plaintiffs sought to amend the plaint seeking
           AKKAMMA & ORS. v. VEMAVATHI & ORS.                                    1195
                 [ANIRUDDHA BOSE, J.]

alternative relief of possession of the suit property from the defendants.       A
On that point, the High Court has observed and held:-
      “6. ……..The dispute between the parties is pending from the
      year 1982. The Trial Court vide judgment dated 7.9.1985 in O.S.
      No. 3029/82 held that plaintiffs were not in possession and
      enjoyment of the schedule property as on the date of filing the suit       B
      in the year 1982. After lapse of 26 years, the plaintiffs are now
      filing the application seeking amendment of plaint for alternative
      relief for recovery of possession of the schedule property. I perused
      the affidavit filed and I am not satisfied with the explanation of
      the Plaintiffs for delay in filing the application for amendment. It       C
      is not a case where the Plaintiffs were not aware of the fact, that
      the Trial Court in its judgement dated 7.9.1985 in O.S. No. 3029/
      82 held that the Plaintiff was not in possession of the schedule
      property. At this length of time, if the application of Plaintiff is
      allowed, it will lead to de-novo trial. Therefore, the application of
      the Plaintiff for amendment of the plaint is hereby rejected.”             D

      (quoted verbatim from the copy of the judgment reproduced
      in the paperbook)
       9. The High Court’s opinion was based on the reasoning contained
in an earlier decision of the same High Court, the case of Sri Aralappa          E
vs. Sri Jagannath & others (ILR 2007 Kar 339). In this judgment, it
was held:-
      “31. Even if the plaintiff comes to Court asserting that he is in
      possession and that if it is found after trial that he was not in
      possession on the date of the suit, even then, the suit for declaration    F
      and permanent injunction is liable to be dismissed as not
      maintainable, as no decree for permanent injunction can be granted
      if the plaintiff is not in possession on the date of the suit. In such
      circumstances, it is necessary for the plaintiff to amend the plaint
      before the judgment and seek relief of possession. Therefore, a
                                                                                 G
      suit for declaration of title and permanent injunction, by the plaintiff
      who is not in possession on the date of the suit, when he is able to
      seek further relief of recovery of possession also, omits to do so,
      the Court shall not make any such declaration and the suit is liable
      to be dismissed as not maintainable”.
                                                                                 H
1196            SUPREME COURT REPORTS                           [2021] 10 S.C.R.


 A           10. Before us, it has been urged on behalf of the appellants that
       having regard to the provisions of Section 34 of the Specific Relief Act,
       1963, the suit ought not to have been dismissed as along with claim for
       declaration, injunctive relief was also asked for. Section 34 of the 1963
       Act reads:-
 B           “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
 C           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.
 D           Explanation. – A trustee of property is a “person interested to
             deny” a title adverse to the title of some one who is not in existence,
             and whom, if in existence, he would be a trustee.”
              The aforesaid provision of law has been construed uniformly in a
       series of judgments. In the case of M. K. Rappai and Ors. vs. John
 E
       and Ors. [(1969 (2) SCC 590] dealing with a similar provision in Section
       42 of the Specific Relief Act, 1877, which was identically phrased, it
       was held:-
             “12. ………a bare declaration of right will be within the mischief
 F           of Section 42 of the Specific Relief Act, 1877 and Section 34 of
             the Specific Relief Act, 1963.”
             Same proposition of law has been followed in Ram Saran and
       Anr. vs. Smt. Ganga Devi [(1973) 2 SCC 60], Vinay Krishna vs.
       Keshav Chandra and Anr. [(1993) Supp 3 SCC 129] and Anathula
 G     Sudhakar vs. P. Buchi Reddy (Dead) By LRS. And Ors. [(2008) 4
       SCC 594].
             11. The High Court, on factual score, observed in the judgment
       under appeal:-

 H
            AKKAMMA & ORS. v. VEMAVATHI & ORS.                                      1197
                  [ANIRUDDHA BOSE, J.]

       “8. I am in full agreement with the view taken by the learned                A
       Single Judge in Aralappa’s case. In the instant case the finding of
       the Trial Court in O.S. No. 3029/82 stating that the Plaintiffs were
       not in possession and enjoyment of the schedule property had
       become final. It is not the case of Plaintiff that subsequent to
       judgement in O.S. No. 3029/82 he recovered the possession of
                                                                                    B
       the schedule property. That being the situation, there was no
       impediment for the Plaintiff’s to seek the relief for recovery of
       possession when they filed O.S. No. 1014/87. The Plaintiffs having
       omitted to seek further relief of possession they are not entitled
       for declaring and injunction. The reasoning of the Trial Court in
       the impugned judgment is in accordance with law and the same is              C
       supported by evidence on record. I find no justifiable ground to
       interfere with the impugned judgment passed by the Trial Court.”
       (quoted verbatim from the copy of the judgment as
       reproduced in the paperbook)
                                                                                    D
        12. The position here is that the original plaintiff sued for declaration
of title and possession in the 1987 suit. The first Court found the original
plaintiff not to be in possession. It is true that reliefs claimed by the
original plaintiff were both for declaration and injunction, but the latter
having failed to establish possession of the suit land, his case for injunction
restraining the defendants from interfering with the suit land failed. The          E
plaintiffs want us to proceed on the basis that since the Trial Court found
ownership of the suit property having been proved, possession should
have been presumed. In two High Court decisions, Devish vs. M.K.
Subbiah and Ors. (AIR 1970 Mys 249) and Navalram Laxmidas
Devmurari vs. Vijayaben Jayvantbhai Chavda (AIR 1998 Guj 17),                       F
the presumption of law that possession follows tittle has been highlighted.
      13. Our attention has also been drawn to certain portions of M.
Krishnaswamy’s “Law of Adverse Possession” (12th Edition). In this
commentary, the author has summarised the legal position in relation to
presumption of law in relation to vacant lands in the following manner: -           G
       “Possession is not necessarily the same as actual user. To prove
       possession, it is not necessary, generally, to prove user of land. If
       the land is of such a nature as to render it unfit for actual enjoyment
       in the usual modes, it may be presumed that the possession of the
       owner continues until the contrary is proved.                                H
1198            SUPREME COURT REPORTS                          [2021] 10 S.C.R.


 A           The jurisprudential concept of possession is made up of two
             ingredients: (i) the corpus: and (ii) the animus. Corpus means
             actual exclusive physical CONTROL over the property denoting
             physical possession. The animus denotes the intention and exercise
             of right to possess the property as owner to the exclusion of others.
             These, two ingredients put together go to constitute legal
 B
             possession. Thus, the mere throwing of Gudha (Garbage) over
             an open plot of land for a very long period much more than even
             12 years will not constitute legal possession of the persons throwing
             Gudha and muchless can such user ripen into adverse possession
             so as to extinguish the title of the rightful owner.”
 C
              14. But these statements of law would not operate in this case, as
       the original plaintiff in the earlier suit had admitted possession as also
       use of the subject-land by the first defendant. No case of granting right
       of user has been made out either. Neither the plaintiff has alleged casual
       use of the subject-land by the first defendant. The original plaintiff’s
 D     claim for possession was rejected in the 1982 suit and in the subsequent
       suit also, which gives rise to this appeal, the plaintiffs could not
       demonstrate repossession of land on the basis of which he could obtain
       injunctive relief from disturbance of possession. In both the two reported
       decisions in the cases of Devish (supra)and Navalram Laxmidas
 E     Devmurari (supra)referred to earlier, the first two Courts – being the
       Courts of fact had come to affirmative finding about the plaintiffs’
       possession of the suit property. So far as the proceeding before us is
       concerned, the finding of the First Court is otherwise. The plaintiffs
       sought to introduce prayer for recovery of possession to cure the defect
       of not having made out a case on that count by way of amendment of
 F     plaint at the appellate stage. The High Court rejected this prayer. We
       have quoted earlier in this judgment the reason for such rejection. We
       are in agreement with the High Court on this point. While in a situation
       of this nature, amendment of plaint could be asked for (Vinay Krishna
       vs. Keshav Chandra and Anr.), such a plea ought to have been made
 G     within the prescribed limitation period. This position of law has been
       clarified in the case of Venkataraja and Ors. vs. Vidyane
       Doureradjaperumal (Dead) Through Legal Representatives and
       Ors. [ (2014) 14 SCC 502]. In this case, it has been held:-
             “24. A mere declaratory decree remains non-executable in most
 H           cases generally. However, there is no prohibition upon a party
           AKKAMMA & ORS. v. VEMAVATHI & ORS.                                       1199
                 [ANIRUDDHA BOSE, J.]

       from seeking an amendment in the plaint to include the unsought              A
       relief, provided that it is saved by limitation. However, it is obligatory
       on the part of the defendants to raise the issue at the earliest.
       (Vide Parkash Chand Khurana vs. Harnam Singh and State of
       M.P. vs. Mangilal Sharma).”
        15. We agree with that part of the decision of the High Court in            B
which it has been held that possession of the suit property was not
established by the plaintiffs and hence injunctive relief could not be
granted. As we have already recorded, we are also in agreement with
the High Court’s reasoning for rejecting the plea for amendment. But
we do not agree fully with the entire reasoning of the High Court for               C
dismissal of the appeal as spelt out in the said judgment. The bar contained
in proviso to Section 34 of the 1963 Act, in our opinion, could not be
applied in the case of the plaintiffs as consequential relief for injunction
from interference with the suit-land was claimed. The prohibition
contained in the proviso to Section 34 would operate only if the sole
relief is for declaration without any consequential relief. In the plaint of        D
the 1987 suit, relief for injunction was asked for. Such dual relief would
protect the suit from being dismissed on maintainability ground. It is a
fact that the plaintiff ought to have had asked for recovery of possession,
given the factual background of this case, but the plaint as it was originally
framed reflected that the original plaintiff was in possession of the suit          E
land. Such plea rightly failed before the Trial Court and the First Appellate
Court.
        16. The prohibition or bar contained in proviso to Section 34 of the
1963 Act determines the maintainability of a suit and that issue has to be
tested on the basis the plaint is framed. If the plaint contains claims for         F
declaratory relief as also consequential relief in the form of injunction
that would insulate a suit from an attack on maintainability on the sole
ground of bar mandated in the proviso to the aforesaid section. If on
evidence the plaintiff fails on consequential relief, the suit may be
dismissed on merit so far as plea for consequential relief is concerned
but not on maintainability question invoking the proviso to Section 34 of           G
the 1963 Act. If the plaintiff otherwise succeeds in getting the declaratory
relief, such relief could be granted. On this count, we do not accept the
ratio of the Karnataka High Court judgment in the case of Sri Aralappa
(supra) to be good law. In that decision, it has been held:-
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1200             SUPREME COURT REPORTS                            [2021] 10 S.C.R.


 A            “31. Even if the plaintiff comes to Court asserting that he is in
              possession and that if it is found after trial that he was not in
              possession on the date of the suit, even then, the suit for declaration
              and permanent injunction is liable to be dismissed as not
              maintainable, as no decree for permanent injunction can be granted
              if the plaintiff is not in possession on the date of the suit. In such
 B
              circumstances, it is necessary for the plaintiff to amend the plaint
              before the judgment and seek relief of possession. Therefore, a
              suit for declaration of title and permanent injunction, by the plaintiff
              who is not in possession on the date of the suit, when he is able to
              seek further relief of recovery of possession also, omits to do so,
 C            the Court shall not make any such declaration and the suit is liable
              to be dismissed as not maintainable”.
               17. So far as the reliefs claimed in the suit out of which this appeal
       arises, prayer for declaration was anchored on two instances of
       interference with the possession of land of the plaintiffs and injunctive
 D     relief for restraint from interference with the property was also claimed.
       But possession of the said property by the original plaintiff was not
       established. The alternative relief sought to be introduced at a later stage
       of the suit was also found to be incapable of being entertained for the
       reason of limitation. Thus, the foundation of the case of the plaintiffs
 E     based on these two factual grounds collapsed with the fact-finding Courts
       rejecting both these assertions or allegations. But that factor ought not
       to be a ground for denying declaration of ownership to the plaintiffs.
       There is no bar in the Specific Relief Act, 1963 in granting standalone
       declaratory decree. The Trial Court came to a positive finding that the
       original plaintiff was the owner of the suit-property. But it held that in
 F     absence of declaration of relief of possession by the plaintiff, declaration
       of title cannot be granted. We have already expressed our disagreement
       with this line of reasoning. It seems to be a misconstruction of the
       provisions of Section 34 of the 1963 Act. The Trial Court and the High
       Court have proceeded on the basis that the expression “further relief”
 G     employed in that proviso must include all the reliefs that ought to have
       been claimed or might have been granted. But in our view, that is not the
       requirement of the said proviso. This takes us to the corollary question
       as to whether the 1987 suit could have been held to be barred under the
       principle contained in Order II Rule 2 of the Code of Civil Procedure,
       1908. In our opinion, the said provisions of the Code would not apply in
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           AKKAMMA & ORS. v. VEMAVATHI & ORS.                                   1201
                 [ANIRUDDHA BOSE, J.]

the facts of this case, as the denial of legal right in the 1987 suit is        A
pegged on two alleged incidents of 15th and 25th February, 1987. These
allegations can give rise to claims for declaration which obviously could
not be made in the 1982 suit. The claim for declaratory decree could
well be rejected on merit, but the suit in such a case could not be dismissed
invoking the principles incorporated in Order II Rule 2 of the Code of
                                                                                B
1908.
        18. The High Court has proceeded on the footing that in the
subject-suit, the original plaintiff must have had asked for relief for
recovery of possession and not having asked so, they became disentitled
to decree for declaration and possession. But as we have already                C
observed, the proviso to Section 63 of the 1963 Act requires making
prayers for declaration as well as consequential relief. In this case, if the
relief on second count fails on merit, for that reason alone the suit ought
not to fail in view of aforesaid prohibition incorporated in Section 34 of
the 1963 Act.
                                                                                D
       19. Having opined on the position of law incorporated in Section
34 of the 1963 Act, we shall again turn to the facts of the present case.
The first suit was for perpetual injunction, in which the original plaintiff
lost for failing to establish possession. In the second suit (the 1987 suit),
reliefs were claimed for declaration based on allegation of subsequent
disturbances and on that basis injunctive relief was asked for. The             E
plaintiffs’ claim for being in possession however failed. Thus, no injunction
could be granted restraining the defendants from disturbing or interfering
with the original plaintiffs’ possession of the suit land. But as the Trial
Court found ownership of the original plaintiff was proved, in our view
the original plaintiff was entitled to declaration that he was the absolute     F
owner of the suit property. There is no bar in granting such decree for
declaration and such declaration could not be denied on the reasoning
that no purpose would be served in giving such declaration. May be
such declaratory decree would be non-executable in the facts of this
case, but for that reason alone such declaration cannot be denied to the
plaintiff. Affirmative finding has been given by the Trial Court as regards     G
ownership of the original plaintiff over the subject-property. That finding
has not been negated by the High Court, being the Court of First Appeal.
In such circumstances, in our opinion, discretion in granting declaratory
decree on ownership cannot be exercised by the Court to deny such
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1202                SUPREME COURT REPORTS                       [2021] 10 S.C.R.


 A     relief on the sole ground that the original plaintiff has failed to establish
       his case on further or consequential relief.
              20. In these circumstances, we sustain the judgment of the High
       Court that the plaintiffs were not entitled to injunctive relief as prayed
       for and also the rejection of the plaintiffs’ plea for introduction of relief
 B     for possession. But at the same time, we set aside that part of the
       judgment by which it has been held that the plaintiffs were disentitled to
       declaration of ownership of the property. We accordingly hold that the
       plaintiffs are entitled to declaration that they are owners of the suit
       property and there shall be a decree to that effect.
 C            21. The appeal is party allowed in the above terms.
              22. There shall be no orders as to costs.


       Ankit Gyan                                               Appeal partly allowed.
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