VENKATARAJA & ORS.versusVIDYANE DOURERADJAPERUMAL (D) THR.LRS. & ORS.

                          [2013] 5 S.C.R. 814

A                       VENKATARAJA & ORS.
                                     v.
    VIDYANE DOURERADJAPERUMAL (D) THR.LRS. & ORS.
            (Civil Appeal Nos. 7605-7606 of 2004)
                            APRIL 10, 2013
B
         [DR. B.S. CHAUHAN AND FAKKIR MOHAMED
                   IBRAHIM KALIFULLA, JJ.]

          Specific Relief Act, 1963 - s.34, proviso - Suit filed by
C   appellants for declaration of title to property without seeking
    consequential relief of possession - Maintainability - Held:
    Where defendant is not in physical possession, and not in a
    position to deliver possession to the plaintiff, it is not necessary
    for the plaintiff in a suit for declaration of title to property, to
D   claim possession - However, in the instant case, respondent
    nos.3 to 10 were tenants, residing in the suit property and
    definitely in a position to deliver the possession - Respondent
    nos. 3 and 10 being admittedly in possession of the suit
    property, the appellants/plaintiffs had to necessarily claim the
E   consequential relief of possession of the property - Suit filed
    by the appellants/plaintiffs was not maintainable, as they did
    not claim such consequential relief - To say that the
    appellants would be entitled to file independent proceedings
    for eviction of said respondents under a different statute, would
F   amount to defeating the provisions of Or.II, r.2 CPC as well
    as the proviso to s.34 - Code of Civil Procedure, 1908- Or.II,
    r.2 - Specific Relief Act 1877 - s.42.

        Specific Relief Act, 1963 - s. 34, proviso - Purpose of -
  Held: The very purpose of the proviso to s.34, is to avoid
G multiplicity of proceedings, and also loss of revenue of court
  fees.

         The predecessor-in-interest of the appellants filed
    suit in the Civil Court for declaration that he had a proper
H                                  814
VENKATARAJA v VIDYANE DOURERADJAPERUMAL 815
                (D) THR.LRS.
title to the suit property (situated in the erstwhile French      A
territory of Pondicherry) and for declaration that the sale
deed dated 16-7-1959 executed by 'T', a Hindu widow, in
favour of the defendant-'V' was null and void as 'T' had
only a life estate and not an absolute title, to alienate the
property.                                                         B
    Though the trial court decided the question of title in
favour of the appellant/plaintiff, it found that the appellant/
plaintiff had filed the suit only for declaration of his right
to the suit property, and since he had not asked for
consequential relief of delivery of possession, the suit          C
was held to be not maintainable and was dismissed.

      The Appellate Court held that 'T' had sold only her
life estate in the suit property, as she was only a life estate
holder and further that, as the appellant/plaintiff had filed D
a suit for declaration in respect of the suit property in,
which there were tenants, it was not necessary for the
appellant to claim any consequential relief for the reason
that after obtaining such a declaration, appropriate relief
could be claimed under Pondicherry Non-Agricutural E
Kudiyiruppudars (Stay of Eviction Proceedings) Act of
1980.

    The respondents/defendants filed second appeals
before the High Court. During the pendency of the
appeals, defendant-'V' sold the suit property to                  F
respondent nos.1 to 3. By the impugned judgment, the
High Court held that 'T' had acquired absolute title over
the property; that as defendant-'V' had purchased the suit
property from 'T' vide sale deed, she had become the
rightful owner, and also that, in view of the defendant-'V'       G
having been in possession of the suit property for over
than 10 years, she had perfected the title to the suit
property by prescription, under the provisions of the
French Civil Code and as a consequence thereof, the suit
                                                                  H
    816      SUPREME COURT REPORTS             [2013] 5 S.C.R.


A for declaration was not maintainable without seeking the
  relief of possession.

      The instant appeals therefore raised issues
  regarding: 1) the interpretation of French Hindu Law, as
  to whether a Hindu widow having only a life estate, can
8
  be considered the absolute owner of a property, thus
  competent to transfer the said property; an<! secondly 2)
  whether the suit was not maintainable as the appellant/
  plaintiff had not sought any consequential relief.

C         Dismissing the appeals, the Court

          HELD:

    Issue no.1

D      1. In view of the fact that the counsel'. appearing on
  behalf of the respondents, has fairly conceded that such
  a Hindu widow could not acquire the absolute title, there
  is no occasion to enter into that controversy. Even
  otherwise, the finding recorded by the High Court is not
E based on any evidence, and no reason has been given
  by it to reverse the findings recorded by the trial court as
  well as the First Appellate Court that 'T' was only the life
  estate holder. The High Court erred in recording such a
  finding. [Para 11] [827 -E-F]

F   Issue no.2 - Whether the suit is maintainable if the
    consequential relief is not asked for?

       2.1. In the case of Deo Kuer, this Court considered
  the provisions of Section 42 of the Specific -Relief Act
G 1877, (analogous to Section 34 of the Act 1963), and held,
  that where the defendant was not in physical possession,
  and not in a position to deliver possession to the plaintiff,
  it was not necessary for the plaintiff in a suit for
  declaration of title to property, to claim the possession.
H                                                                 ..
VENKATARAJA v VIDYANE DOURERADJAPERUMAL 817
                (D) THR.LRS.
The facts in the case of Deo Kuer are ·quite                    A
distinguishable from the facts of this case, as in that case,
the tenants were not before the court as parties. In the
instant case, respondent nos. 3 to 10 are tenants,
residing in the suit property. The said respondents were
definitely in a position to deliver the possession.             B
Therefore, to say that the appellants would be entitled to
file an independent proceedings for their eviction under
a different statute, would amount to defeating the
provisions of Order II Rule 2 CPC as well as the proviso
to Section 34 of the Act 1963. Thus, the First Appellate        c
Court, as well as the High Court failed to consider this
question of paramount importance. [Paras 13 & 15] [828-
B-C; G-H; 829-A-B]
     2.2. The very purpose of the proviso to Section 34 of
the Act 1963, is to avoid the multiplicity of the               D
proceedings, and also the loss of revenue of court fees.
When the Specific Relief Act, 1877 was in force, the 9th
Report of the Law Commission 'of India, 1958, had
suggested certain amendments in the proviso, according
to which, the plaintiff could seek declaratory relief without   E
seeking any consequential relief, if he sought permission
of the court to make his subsequent claim in another suit/
proceedings. However, such an amendment was not
accepted. There is no provision analogous to such
suggestion in the Act of 1963. [Para 16] [829-B-D)              F

     2.3. A mere declaratory decree remains non-
executable in most cases generally. However, there is no
prohibition upon a party from seeking an amendment in
the plaint to include the unsought relief, provided that it     G
is saved by limitation. However, it is obligatory on the part
of the defendants to raise the issue at the earliest. [Para
17] [829-D-E]

    2.4. It is evident that the suit filed by the appellants/
plaintiffs was not maintainable, as they did not claim          H
    818    SUPREME COURT REPORTS                [2013] 5 S.C.R.

A consequential relief. The respondent nos. 3 and 10 being
    admittedly in possession of the suit property, the
    appellants/plaintiffs had to necessarily claim the
    consequential relief of 'possession of the property. Such
    a plea was taken by the respondents/defendants while
B filing the written statement. The appellants/plaintiffs did
    not make any attempt to amend the plaint at this stage,
    or even at a later stage. The declaration sought by the
    appellants/ plaintiffs was not in the nature of a relief. A
    worshipper may seek that a decree between the two
c parties is not binding on the deity, as mere declaration
    can protect the interest of the deity. The relief sought
  . herein, was for the benefit of the appellants/plaintiffs
    themselves. [Para 18] [830-B-E]

     Deo Kuer & Anr. v. Sheo Prasad Singh & Ors. AIR 1966
D SC 359: 1965 SCR 655 - distinguished.
       Vinay Krishna v. Keshav Chandra & Anr. AIR 1993 SC
  957: 993 (3) Suppl. SCC 129; Parkash Chand Khurana etc.
  v. Hamam Singh & Ors. AIR 1973 SC 2065: 1973 (3) SCR
E 802; State of M.P. v. Mangilal Sharma AIR 1998 SC 743:
  1997 (6) Suppl. SCR 662; Muni Lal v. The Oriental Fire &
  General Insurance Co. Ltd. & Anr. AIR 1996 SC 642: 1995
  (5) Suppl. SCR 42; Shakuntla Devi v. Kam/a & Ors. (2005)
  5 sec 390 - relied on.
F        Sunder Singh Mal/ah Singh Sanatan Dharam High
    School Trust v. Managing Committee, Sunder Singh Mullah
    Singh Rajput High School AIR 1938 PC 73 and Humayun
    Begam v. Shah Mohammad Khan AIR 1943 PC 94 -
    referred to.
G
                        Case Law' Reference:
      1965 SCR 655               distinguished Paras 13, 15
      AIR 1938 PC 73              referred to     Para 13
H                                 referred to     Para 13
      AIR 1943 PC 94
VENKATARAJA v VIDYANE DOURERADJAPERUMAL 819
                (D) THR.LRS.
  1993 (3) Suppl. sec 129 relied on                 Para 14             A
  1973 (3) SCR 802                relied on         Para 17
  1997 (6) Suppl. SCR 662 relied on                 Para 17
  1995 (5) Suppl. SCR 42          relied on         Para 17
                                                                        B
  (2005) 5 sec 390                relied on         Para 17

    CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
7605-7606 of 2004.

    From the Judgment & Order dated 12.12.2003 of the High              C
Court of Judicature at Madras in Second Appeal Nos. 1536
and 1537 of 1991.

     R. Venkataramani, V.G. Pragasam, S.J. Aristotle, Prabu
Ramasubramanian, Supriya Garg, Neelam Singh, Shodhan                    D
Babu.for the Appellants.

    R. Balasubramonium, B. Karuna Karan, Krishna Dev,
Senthil Jagadeesan, Sony Bhatt, M.A. Chinnasamy, K. Krishna
Kumar, S. Muthu Krishnary for the Respondents.
                                                                        E
     The Judgment of the Court was delivered by

     DR. B.S. CHAUHAN, J. 1. These appeals have been
preferred against the impugned judgment and order dated
12.12.2003 passed by the High Court of Madras in Second                 F
Appeal Nos. 1536-1537 of 1991, by way of which the common
judgment and decree passed by the First Additional District
Judge in A.S. No. 198 of 1983 and A.S. No. 43 of 1988 were
set .aside, and the suit O.S. No. 58 of 1982, was dismissed,
holding that the suit filed by the plaintiff, father of the appellant   G
herein, is not maintainable.

     2. Facts and circumstances giving rise to these appeals
are that:

     A. The suit property i.e. House No. 9/39, Savaripadayatchi         H
    820      SUPREME COURT REPORTS                   [2013-) 5 s.c. R.


A Street, Nellithope, Pondicherry, originally belonged to the
  deceased appellant/great grandfather Vengadachafa Naicker,
  son of Ayyamperumal Naicker. He donated the above-
  mentioned suit property on 13.12.1896 in favour of his minor
  grandsons Radja Row and Kichnadji Row, both sons of
B Ponnusamy Naicker, and the said donation deed was
  registered on 18.1.1897. In the deed, it was provided that the
  donees/grandsons would only have a life estate, and that after
  their death, only their male legal heirs shall be entitled to the
  suit property, with the right of alienation.
c        B. In view of the fact that the donees were minors at that
    time, their father Ponnusamy Naicker was appointed as the
    guardian, in the said deed.

       C. The donee Kichandji Row died issuefess and hence, ·
D the other donee Radja Row became the full usufructuary owner
  of the suit property. Radja Row also died leaving behind his
  wife Thayanayagy Ammalfe and his son Kannussamy Row. The
  said Kannussamy Row died issuefess leaving behind his
  mother Thayanayagy Ammalfe am;l_Kuppammal his wife. After
E the death of Kuppammaf, Thayanayagy Ammalfe became the
  sole inheritor of the property. Thayanayagy Ammaffe
  subsequently executed a safe deed dated 16.7.1959 in favour
  of Vedavalliammalle, the first defendant.

       D. As per the terms of the donation deed dated
F 13.12.1896, after the death of Kannusamy Row, the suit
  property could only devolve upon his male legal heirs. Since
  the deceased Radja Row did not have any issue, the suit
  property had to go to the sole male reversioner and surviving
  heir, i.e. Radja Row's cousin brother Ramaraja, being the
G grandson of the donor Vengadachala Naicker.

       E. On the basis of the aforesaid plaints, the appellant/
  plaintiff filed a suit against the said first defendant
  Vedavalliammalle before the erstwhile French Court of the
H Tribunal of First instance, for a direction that the plaintiff was in
VENKATARAJA v VIDYANE DOURERADJAPERUMAL 821
      (D) THR.LRS. [DR. B.S. CHAUHAN, J.]
fact, the heir of the deceased Radja Row, and also for a              A
direction to the first defendant to not waste the suit property.

    F. Immediately, after filing the said suit, the French Colony .
of Pondicherry was merged with the Union of India. The Hindu
Succession Act, 1956 (hereinafter referred to as the 'Act 1956), B
had been extended to the Union Territory of Pondicherry w.e.f.
1.10.1963.

      G. The suit filed by the appellant/plaintiff was decided vide
judgment and decree dated 18.8.1965, wherein it was held that
since Thayanayagy Ammalle was still alive, the claim of the           C
appellant/plaintiff was premature. However, in the said suit, an
observation was made that the appellant/plaintiff was the legal
 heir to the deceased Radja Row.

     H. Aggrieved, Vedavalliammalle/first defendant preferred         D
an appeal against the said judgment. However, Thayanayagy
Arnmalle did not press the appeal, with regard to the finding of
the court as to whether the appellant/plaintiff was a legal heir
to the deceased Radja Row, and contested only the
appointment of the Commissioner, who had been appointed               E
to determine whether any repairs were necessary, in respect
of the suit property.

     I. The appellate court allowed the appeal vide judgment
dated 2.2.1970, only to the extent of holding that no repairs
were necessary for the suit property. The said Thayanayagy            F
Ammalle died on 30.5.1978. It was at this juncture, that the
claim of the appellant over the suit property was' not accepted
by the opposite parties. The first defendant Vedavalliammalle
and her husband, the second defendant, thereafter leased out
the suit property in favour of the 3rd to 9th defendants on           G
30.5.1979, and were receiving rent for the same henceforth.

     J. Defendant No.10 Jeyaraman, who was the husband and
father of respondent nos. 4 and 5 respectively, purchased the
                                                                      H
    822      SUPREME COURT REPORTS                    [2013] 5 S.C.R.

A   suit property from defendant no.1 vide registered sale deed
    dated 26.4.1980.

         K. The deceased-plaintiff i.e. father of the appellants, filed
  · suit 0.S. No. 58 of 1982, in the Civil Court of Pondicherry for
    declaration that he was the legal heir of the deceased Radja
8
    Row, and thus had a proper title to the suit property and for
    declaration that the sale deed dated 16. 7 .1959 executed by
    Thayanayagy Ammalle in favour of Vedavalliammal, was null
    and void as she had only a life estate and not an absolute title,
C to alienate the property.

          L. The said suit was contested by respondents/defendants
    and it was decided on 7.10.1983, by the Civil Court, which held
    that:

D          (a)   Since Kannussamy Row had died before the
                 introduction of the Hindu Succession Act, and
                 considering the Hindu Law applicable in the French
                 Territory of Pondicherry, after the death of the sole
                 male heir to the suit property, the wife and the
                 mother of the legal heir would have only usufructuary
E
                 right over the suit property and not an absolute title.

           (b)   As per the above customary Hindu Law applicable
                 in 1959, the vendor Thayanayagy Ammalle had only
                 a usufructuary right over the property, and not the
F                absolute right to alienate the same.

           (c)   Therefore, the reversionary male heir was entitled
                 to inherit the property, being the sole heir of the
                 original donor.
G          (d)   The defendants/respondents had not acquired the
                 title l:!y way of possession/prescription.

           (e)   The suit was not barred by res-judicata.

H         Though the court decided the question of title in favour of
VENKATARAJA v VIDYANE DOURERADJAPERUMAL 823
     (0) THR.LRS. [DR. B.S. CHAUHAN, J.]
the appellant/plaintiff, the trial court found that the appellant/       A
plaintiff had filed the suit only for declaration of his right to the
suit property, and since he had not asked for consequential
relief of delivery of possession, the suit was held to be not
maintainable and was dismissed.
                                                                         B
      M. Aggrieved, the appellant/plaintiff filed an appeal
challenging the said judgment and order dated 7.10.1983,
before the court of the District Judge, and the said appeal was
allowed vide judgment and decree dated 13.4.1989, observing
that the sale deed had been executed by Thayanayagy Ammalle
in favour of defendant no. 1 on 16.7.1959, prior to the extension        C
of the Hindu Succession Act to Pondicherry on 1.10.1963. The
result of the same was that she had sold only her life estate in
the suit property, as she was only a life estate holder and upon
her death, the property devolved on the sole living reversionary.
Further, it was held that, as the appellant/plaintiff had filed a suit   D
for declaration in respect of the suit property in which there were
tenants, it was not necessary for the appellant to claim any
consequential relief for the reason that after obtaining such a
declaration, appropriate relief could be claimed under
Pondicherry Non-Agricutural Kudiyiruppudars (Stay of Eviction            E
Proceedings) Act of 1980 (hereinafter referred to as the 'Act
1980'). There was thus, no need for a separate prayer for
recovery of possession, as the same could be asked only under
the Special Enactment.
                                                                         F
     N. Being aggrieved, the respondents/defendants filed
second appeals before the High Court, and it was during the
pendency of the said appeals, that Vedavalliammal sold the suit
property to respondent nos. 1 to 3 on 31.3.1993. In view
thereof, they were also impleaded in the appeal as respondents.          G
The said appeals were decided by impugned judgment and
order dated 12.12.2003, wherein the High Court had held, that
Thayanayagy Ammalle had acquired the absolute title over the
property. As the first defendant Vedavalliammal had purchased
the suit property from the absolute owner Thayanayagy Ammalle
                                                                         H
    824      SUPREME COURT REPORTS                  (2013) 5 S.C.R.


A vide sale deed dated 11. 7.1959, she had become the rightful
  owner, and the said sale deed was not null and void. Also, in
  view of the fact that the said Vedavalliammal had been in
  possession of the suit property for over than 1Oyears, she had
  perfected the title to the suit property by prescription, under the
B provisions of French Civil Code and as a consequence thereof,
  the suit for declaration was not maintainable without seeking
  the relief of possession.

          Hence, these appeals.

C       3. Shri R. Venkataramani, learned senior counsel
  appearing for the appellants has submitted that the High Court
  had committed an error by holding that Thayanayagy Ammalle
  had acquired an absolute title over the suit property, and that
  by selling the suit property to Vedavalliammalle, who had
D purchased the suit property from her, vide sale deed dated
  16. 7.1959, Vedavalliammalle, had become the absolute owner
  of the suit property and that the sale deed (Ext. A-4) was not
  null and void.

E      The courts below have recorded a finding that
  Thayanayagy Ammalle was only a life estate holder and thus,
  had not acquired an absolute title. The High Court has not given
  any reason whatsoever, for reversing the said finding of fact.
  The said finding is perverse being based on no evidence. In
  case such a finding goes, the sale deed dated 16.7.1959 could
F not confer a_ny title on the purchaser, Vedavalliammalle. More
  so, the High Court had not correctly framed the substantial
  question of law, rather it had framed entirely irrelevant issues,
  such as, the prescription and issue of limitation. The High Court
  had committed an error by holding that the suit for declaration
G was not maintainable without seeking any consequential relief,
  when the First Appellate Court has rightly held, that in a case
  where the property had been in the possession of the tenants,
  and where there were other means to recover the possession,
  there was no need for seeking any consequential relief in that
H aspect. Thus, the appeals deserve to be allowed.
VENKATARAJA v VIDYANE DOURERADJAPERUMAL 825
      (D) THR.LRS. [DR. B.S. CHAUHAN, J.]
     4. Per contra, Shri R. Balasubramaniam, learned senior           A
counsel appearing for the respondents, has opposed the
appeals contending that seeking consequential relief was
necessary in order to maintain the suit for declaration as per
the proviso to Section 34 of the Special Relief Act, 1963
(hereinafter referred to as the 'Act 1963'). The pleadings taken      B
by the parties suggest, that the respondents had been in
physical possession of the property alongwith their tenants.
They were in exclusive possession of the same. Therefore, as
no consequential relief had been sought, the suit was not
maintainable. More so, the· question of limitation was very           c
relevant and has rightly been dealt with by the High Court. The
appeals lack merit, and are liable to be dismissed.

     5. We have considered the rival submissions made by the
learned counsel for the parties and perused the record.
                                                                      D
      6. Ramaraja claiming himself to be the reversioner, had
filed a suit against the purchaser Vedavalliammalle, which was
decided in 1965, and the issue of nature of title, with respect
to whether the interest of Thayanayagy Ammalle was merely
usufructuary or absolute, was considered. The court had then          E
come to the conclusion vide judgment and decree dated
29.11.1965, that the same was pre-mature, as the suit could
not have been filed during the life time of Thayanayagy Ammalle.
In the suit O.S. No. 58 of 1982, undoubtedly, the contesting
respondents had also been shown as the residents of the suit          F
property, and relief had been claimed only for declaration that
the plaintiff was the legal heir of the deceased Kannussamy
Row, the great grandson of Venkatachala Naicker, having title
to the suit property, and further, for declaration that the sale
deed dated 16.7.1959 was null and void.
                                                                      G
      In para 4 of the written statement, it has been mentioned
that the respondents/defendants were living in the suit property
alongwith _defendant Nos. 3 to 9, their tenants. In view of
the pleadings taken by the parties, a large number of issues
were framed by the trial court, including whether the plaintiff was   H
    826      SUPREME COURT REPORTS                   [2013] 5 S.C.R.

A   the legal heir of the deceased Kannussamy Row; whether the
    sale deed dated 16. 7.1959 was null and void; and whether the
    plaintiff was entitled for the declaration, as prayed for.

         7. The trial court held, that Thayanayagy Ammalle had not
8   acquired absolute right and that the plaintiff therein was thus,
    the reversioner. The sale deed dated 16. 7 .1959 was void.
    However, as the property was in the possession of the
    respondents/defendants, and consequential relief of delivery
    of possession was not asked for, the suit was not maintainable.

C      8. Being aggrieved, the parties filed cross appeal suit Nos.
  198/83, 21/88 and 43/88. All the aforesaid appeal suits were
  disposed by a common judgment of the First Appellate Court,
  and the said court held, that Vedavalliammalle was not residing
  in the suit property as she was residing somewhere, and had
D rented the house to three different tenants, with a total strength
  of about 26 members. Therefore, defendant no.1 was not in
  possession of the suit property even as early as 1969, and
  therefore, defendant no.10 also did not have possession of the
  suit property.
E
       In view of the fact that the tenants could have been evicted
  subsequently by the appellant/plaintiff, resorting to the
  provisions of the Act 1980, which had been extended upto
  31.3.1990, the suit.was maintainable, and the trial court ought
F not to have dismissed the said suit on the ground that appellant/
  plaintiff had not sought consequential relief of recovery of
  possession.

       9. The High Court having considered various points
  involved therein held, that as per Article 2265 of the French
G Civil Code 1908, a person who had acquired an immovable
  property in good faith, and under an instrument which was on
  the face of it capable of conferring a title, would perfect his title
  by prescription to the land in ten years, in the district of the
  Court of Appeal, when the owner lives in the same district as
H
VENKATARAJA v VIDYANE DOURERADJAPERUMAL 827
     (D) THR.LRS. [DR. B.S. CHAUHAN, J.]
that in which the land Hes, and in twenty years if the true owner     A
lives outside such district.

     Admittedly, the first defendant Vedavalliammalle had
purchased the suit property from the absolute owner
Thayanayagy Ammalle, as per sale ·deed dated 16.7.1959.
                                                                      B
Thus, she had become the rightful owner, said sale deed being
not null and void.

     10. These appeals have raised the questions regarding
the interpretation of French Hindu Law, as to whether a Hindu
widow having only a life estate, can be considered the absolute       C
owner of a property, thus competent to transfer the said
property; and secondly whether the suit was maintainable as
the appellanVplaintiff had not sought any consequential relief.

     11. So far as the issue no.1 is concerned, undoubtedly,          0
the Act 1956 was extended to the Union Territory of Pondicherry
only, at a much later stage. Various judgments of the French
courts and the Madras High Court dealing with the issue have
been cited before us, but in view of the fact that Shri R. Bala
Subramaniam, learned senior counsel appearing on behalf of            E
the respondents, has fairly conceded that such a Hindu widow
could not acquire the absolute title, there is no occasion for us
to enter into that controversy. Even otherwise, the finding
recorded by the High Court is not based on any evidence, and
no reason has been given by it to reverse the findings recorded
by the trial court as well as the First Appellate Court that          F
Thayanayagy Ammalle was only the life estate holder. We hold
that the High Court has erred in recording such a finding.

      12. So far as the issue of adverse possession is
concerned, in our humble opinion, the High Court had no               G
occasion to deal with the same, in view of the earlier judgment
of the trial court, wherein in 1965, it had been held that the suit
filed by the appellanVplaintiff was pre-mature, as he could not
file the same during the life time of Thayanayagy Ammalle.
                                                                      H
    828         SUPREME COURT REPORTS              [2013] 5 S.C.R.


A       13. Thus, the only relevant issue on which the judgment
    hinges upon is, whether the suit was maintainable without
    seeking any consequential relief.

         In Oeo Kuer & Anr. v. Sheo Prasad Singh & Ors. AIR 1966
  SC 359, this Court dealt with a similar issue, and considered
8
  the provisions of Section 42 of the Specific Relief Act 1877,
  (analogous to Section 34 of the Act 1963), and held, that where
  the defendant was not in physical possession, and not in a
  position to deliver possession to the plaintiff, it was not
  necessary for the plaintiff in a suit for declaration of title to
C property, to claim the possession. While laying down such a
  proposition, this Court placed reliance upon the judgments of
  Pri'ify Council in Sunder Singh Mal/ah Singh Sanatan Dharam
  High School Trust v. Managing Committee, Sunder Singh
  Mullah Singh Rajput High School, AIR 1938 PC 73; and
D Humayun Begam v. Shah Mohammad Khan, AIR 1943 PC
  94.

        14. In Vinay Krishna v. Keshav Chandra &Anr., AIR 1993
    SC 957, this Court while dealing with a similar issue held:
E
                It is also now evident that she was not in exclusive
          a ......

          possession because admittedly Keshav Chandra and
          Jagdish Chandra were in possession. There were also
          other tenants in occupation. In such an event the relief
          of possession ought to have been asked for. The
F         failure to do so undoubtedly bars the discretion of the
          Court in granting the decree for declaration." (emphasis
          added)

        15. The facts in the case of Deo Kuer (Supra) are quite
G distinguishable from the facts of this case, as in that case, the
  tenants were not before the court as parties. In the instant case,
  respondent nos. 3 to 10 are tenants, residing in the suit
  property. The said respondents were definitely in a position to
  deliver the possession. Therefore, to say that the appellants
H would be entitled to file an independent proceedings for their
VENKATARAJA v VIDYANE DOURERADJAPERUMAL 829
      (D) THR.LRS. [DR. B.S. CHAUHAN, J.]
eviction under a different statute, would amount to defeating the        A
provisions of Order II Rule 2 CPC as well as the proviso to
Section 34 of the Act 1963. Thus, the First Appellate Court, as
well as the High Court failed to consider this question of
paramount importance.
                                                                         B
     16. The very purpose of the proviso to Section 34 of the
Act 1963, is to avoid the multiplicity of the proceedings, and
also the loss of revenue of court fees. When the Specific Relief
Act, 1877 was in force, the 9th Report of the Law Commission
of India, 1958, had suggested certain amendments in the                  C
proviso, according to which, the plaintiff could seek declaratory
relief without seeking any consequential relief, if he sought
permission of the court to make his subsequent claim in another
suiUproceedings. However, such an amendment was not
accepted. There is no provision analogous to such suggestion
in the Act 1963.                                                         D

      17. A mere declaratory decree remains non-executable in
most cases generally. However, there is no prohibition upon a
party from seeking an amendment in the plaint to include the
unsought relief, provided that it is saved by limitation. However,       E
it is obligatory on the part of the defendants to raise the issue
at the earliest. (Vide: Parkash Chand Khurana etc. v. Hamam
Singh & Ors., AIR 1973 SC 2065; and State of M.P. v.
Mangilal Sharma, AIR 1998 SC 743).

      In Muni Lal v. The Oriental Fire & General Insurance Co.
                                                                         F
Ltd. & Anr., AIR 1996 SC 642, this Court dealt with declaratory
decree, and observed that "mere declaration without
consequential relief does not provide the needed relief in the
suit; it would be for the plaintiff to seek both reliefs. The omission
thereof mandates the court to refuse the grant of declaratory            G
relief."

     In Shakuntla Devi v. Kam/a & Ors., (2005) 5 SCC 390,
this Court while dealing with the issue held:
                                                                         H
    830      SUPREME COURT REPORTS                   [2013] 5 S.C.R.

A         • ...... a declaratory decree simpliciter does not attain
          finality if it has to be used for obtaining any future decree
          like possession. In such cases, if suit for possession
          based on 9n earlier declaratory decree is filed, it is open
          to the defendant to establish that the declaratory decree
B         on which the suit is based is not a lawful decree."

        18. In view of the above, it is evident that the suit filed by
  the appellants/plaintiffs was not maintainable, as they did not
  claim consequential relief. The respondent nos. 3 and 10 being
  admittedly in possession of the suit property, the appellants/
C plaintiffs had to necessarily claim the consequential relief of
  possession of the property. Such a plea was taken by the
  respondents/defendants while filing the written statement. The ·
  appellants/plaintiffs did not make any attempt to amend the
  plaint at this stage, or even at a later stage. The declaration
D sought by the appellants/plaintiffs was not in the nature of a
  relief. A worshipper may seek that a decree between the two
  parties is not binding on the deity, as mere declaration can
  protect the interest of the deity. The relief sought herein, was
  for the benefit of the appellants/plaintiffs themselves.
E
        As a consequence, the appeals lack merit and, are
  accordingly dismissed. There is no order as to costs.

    B.B.B.                                       Appeals dismissed.