Discretion of Court as to Declaration of Status or Right – Section 34 | Specific Relief Act



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2. Adverse possession—Legality of:

Once a person gets possession of property as mortgagee, he cannot by a unilateral act or declaration claim a title over the property by adverse possession against the mortgagor since in law his possession is that of the mortgagor. But if mortgagor and mort­gagee subsequently enter into a transaction under which the mortgagee is to hold the property thereafter not as a mortgagee but as owner, that would be sufficient to start adverse possession against the mortgagor even if the transaction is for any reason inoperative under the law.

3. Amendment of plaint:

Granting of amendment of plaint seeking to introduce alternative relief of mandatory injunction for payment of speci­fied amount is bad in law. The alternative relief was available to be asked for when the suit was filed but not made. He cannot be permitted to amend the plaint after the suit was barred by limitation during the pendency of the proceedings in the Appellate Court or the second Appellate Court. Thus the District Court and the High Court were right in refusing the prayer of amend­ment of the suit and the Courts below had not committed any error of law warranting interference.

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4. Amendment:

“All amendments ought to be allowed which satisfy the two conditions (a) not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in con­troversy between the parties. Amendments should be refused only where, the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused, to allow it would be to cause the defendant an injury which could not be compen­sated in costs be depriving him of a good defence to the claim. The ultimate test, therefore, still remains the same; can be amendment be allowed with­out injustice to the other side, or can it not?”

It is well-established rule of practice not to dismiss suits automatically but to allow the plaintiff to make necessary amendment if he seeks to do so.

All amendments ought to be allowed which satisfy the two conditions namely (a) of not working injustice to the other side, and (b) of being neces­sary for the purpose of determining the real questions in controversy be­tween the parties.

5. Applicability:

The material shows that it was the appellants and not the plaintiff who were in possession of the land in dispute. In such circum­stances, suit of the plaintiff will be hit by the proviso to Section 34 of the Specific Relief Act, 1963.

The power of the Courts to make merely declaratory decrees is not entirely governed by Section 42, as that section is not exhaustive of the cases in which a declaratory decree may be made, and the Courts have power to grant such a decree independently of the section. Their Lordships further stated that a declaration which falls outside the purview of Section 42 (of the Old Act and Section 34 of the new Act) of the Specific Relief Act may be governed by the general provision like Section 9 or Order VII, Rule 7 of the Code of Civil Procedure.

6. Award of damages:

It is not in dispute that, in this case, the author­ity who can pass an order of dismissal has passed the same. Under those circumstances, a violation of Regulation 16 (3), as alleged and established in this case, can only result in the order of dismissal being held to be wrong­ful and, in consequence, making the appellant liable for damages. But the said order cannot be held to be one which has not terminated the service, albeit wrongfully or which entitles the respondent to ignore it and ask for being treated as still in service.

7. Bar of limitation:

The plea of the defendant that he has acquired title by adverse possession and the suit was barred by limitation was also proper. Once the property was sold to defendant who was mortgagee in possession, he could not continue as mortgagee inasmuch as after the sale, he was claiming the property as an owner thereof. His status as mort­gagee came to an end with the purchase of property and in the eye of law, it could be said that he was claiming title over the property which was adverse to the owner of the property. Admittedly, the suit was filed by the plaintiff after a period of twelve years. The suit was therefore barred by limitation.

8. Benami Property:

Declaratory suit was filed in 1981. Claiming that land purchased in name of defendant was Benami’ and its real owner is plaintiff. Such suit not hit by Section 4(1) because Section 4(1) was de­clared by Supreme Court to be prospective. Burden to prove that certain property is ‘Benami’ lies on person who asserts it to be Benami’. Since, plaintiff failed to prove his case, mere possession without any title is of no help.

9. Benami:

The question whether a particular sale is benami or not is largely one of fact. Though there is no formula or acid test uniformly appli­cable it is well-nigh settled that the question depends predominantly upon the intention of the person who paid the purchase money. For this, the burden of proof is on the person who asserts that it is a benami transac­tion.

However, if it is proved that the purchase money came from a person other than the recorded owner (ostensible owner) there can be a factual presumption at least in certain cases, depending on facts, that the pur­chase was for the benefit of the person who supplied purchase money.

In this case, as it is admitted that defendant is the recorded owner and when purchase money had not admittedly gone from the appellant for ex­ecution of the sale-deed of 1963, it is an uphill task for the appellant to establish that the sale-deed was taken benami for him. Or course, the ap­pellant had projected certain circumstances to show that he was dealing in lands for which defendant had advanced money to him.

The presumption is that possession would follow title. That presump­tion is stronger in this case as noted earlier that the property remained as a baren land. No particular act of possession could normally be pointed to establish possession. Hon-consideration of the question of possession in such a situation is inconsequential.

10. Concurrent finding of facts:

The present suit is a simple case where the plaintiff/respondent has asked for the declaration of his title on the strength of his purchase and for the confirmation of his possession. His defacto possession subsequent to his purchase along with delivery by his vendor has been supported by PW 2, an independent witness, and the evi­dence of PW 2 was neither controverted nor rebutted. During his deposition plaintiff/respondent (PW 1) stated that suit land is contiguous to the bank of the pond of his homestead. Thus, the concurrent finding of facts to that effect cannot be re-opened on the reasons as given above.

11. Conditional offer:

A conditional offer cannot bind a party unless it is accepted by the other side, because till then it does not become a concluded agreement.

12. Declaration of title:

In a suit for declaration of title to property filed when it stands attached under Section 145 of the Code, it is not neces­sary to ask for the further relief of delivery of possession.

Plaintiff claimed over the property on the basis of the letter of allot­ment by the Development Authority whereas the defendant was alleged to have claimed his right on the ground of the trespassing over the property. The appellate Court contrary to the trial Court held the possessory right of the plaintiff over the suit property on the basis of the material on record which is just and legal and does not deserve any interference.

Where no actual possession in terms of pre-emption decree required to be delivered as title accrues to decree-holder from date of payment of pre-emption amount then suit for declaration, of title filed by plaintiff/co-­owner against purchaser liable to be decreed.

13. Declaration to enforce contract:

The declaration to enforce a con­tract of personal service can be granted in the following three cases:

(i) Appropriate cases of public servants who have been dismissed from service in contravention of Article 311;

(ii) Dismissed workers under industrial and labour law; and

(iii) When a statutory body has acted in breach of a mandatory obli­gation imposed by a statute.

14. Declaratory decree:

In 1852 the Court of Chancery Procedure Act was enacted and it was provided by Section 50 of that Act that no suit should be open to objection on the ground that a merely declaratory de­cree or order was sought thereby, and it would be lawful for the Court to make binding declarations of right without granting consequential relief. By Section 19 of the Act VI of 1854, Section 50 of the Chancery Procedure Act was transplanted to India and made applicable to the Supreme Courts. With regard to Courts other than the Courts established by Charters, the proce­dure was codified in India for the first time by the Code of Civil Procedure, 1859, where the form of remedy under Section 19 of Act VI of 1854 was incorporated as Section 15 of that Act which stood as follows:

“No suit shall be open to objection on the ground that a merely declaratory decree or order is sought thereby, and it shall be lawful for the Civil Courts to make binding declarations of right, without granting consequential relief.”

In 1862, the provisions of the Code of Civil Procedure, 1859 were extended to the Courts established by Charters when the Supreme Courts were abolished and the present High Courts were established. In 1877, the Code of Civil Procedure, 1859 was repealed and the Code of Civil Proce­dure, 1877 was enacted. The provision regarding declaratory relief was trans­ferred to Section 42 of the Specific Relief Act which was passed in the same year. This section which is said to be a reproduction of the Scottish action of declarator, has altered and to some extent widened the provisions of Section 15 of the Old Code of 1859.

Section 42 of the (old) Specific Relief Act is not exhaustive of the cases in which a declaratory decree may be made by the Court, and, since the order of dismissal affects the plaintiffs civil rights, the Court should make a declaration in his favour.

The circumstances in which a declaratory decree under Section 42 (now Section 34) should be awarded is a matter of discretion depending upon the facts of each case. Thus, where the act complained of, deprives the plaintiff of certain present rights to property and the declaratory decree has the effect of giving present relief as well the Courts shall have power to make such a declaration.

The Supreme Court on aspects of powers of Court to grant declaratory decree observed as follows:

“In our opinion, Section 42 (of the Old Act and Section 34 of the Hew Act) of the Specific Relief Act is not exhaustive of the cases in which a declaratory decree may be made and the Courts have power to grant such a decree independently of the requirements Sf the section. It follows, therefore, in the present case that the suit of the plaintiff for a declaration that the compromise decree is not binding on the deity is maintainable as falling outside the purview of Section 42 (of the Old Act and Section 34 of the Hew Act) of the Specific Relief Act.”

15. Declaratory reliefs:

Powers of the Court to grant declaratory re­liefs are adumbrated in Section 34 of the Act which falls under Chapter VI of the Act. It is well to remember that even the wide language contained in Section 34 did not exhaust the powers of the Court to grant declaratory reliefs.

Section 42 (of the Old Act and Section 34 of the New Act) merely gives statutory recognition to a well-recognised type of declaratory relief and sub­jects it to a limitation, but it cannot be deemed to exhaust every kind of declaratory relief or to circumscribe the jurisdiction of Courts to give decla­rations of right in appropriate cases falling outside Section 42 (of the Old Act and Section 34 of the New Act).

The decree in essence contains only a declaratory relief without any consequential payment for monetary benefits. That being so, the executing Court and the High Court were not justified in granting the relief sought for.

16. Declaratory suits:

It is the violation of the order dated 15-9-1988 which gives rise to contempt. The contempt was chiefly about the respon­dents putting padlock on the entrance of the suit premises on 3.7.1993, disconnecting water supply for the first floor and blocking sewerage etc. Therefore, all that was required to decide was whether the respondents therein had maintained the status quo or not. If there was any kind of disobedience, that would amount to contempt. Thus, it is a simple case of contempt.

The learned single Judge is directed to dispose of the application for contempt in its proper perspective confining himself to contempt jurisdic­tion. The Special Officer shall continue to be in possession till the disposal of contempt proceedings.

The worshippers of a temple can challenge the compromise by the trustees by way of a declaratory suit since such worshippers will be in the position of Cestui Que trust or beneficiaries.

17. Decree for declaration:

In this case the respondent has been unable to show as to how a decree for declaration which the respondent got could at all be executable. It was, therefore, submitted by him that once the Court gave a declaration about the legal status of the respondent that he was still in continuance of service of the appellant and his services were never terminated, the necessary consequence would be that the respon­dent should be granted arrears of salary and other consequential benefits by the appellant unlike in a case which was governed by law of contract between the parties. It is difficult to accept this procession as the provision of law contained in Section 34 of the Specific Relief Act are specific and in that case even declaration could not have been granted as it could be said that respondent was able to seek further relief than a mere declaration of his legal status and which he omitted to do so.

18. Decree for recovery of money:

In a suit for mere declaration that the plaintiff is owner of certain properties, this U.P. Amendment is not at­tracted for the purposes of payment of Court-fee. According to their Lord­ships this U.P. Amendment relates to a decree for recovery of money or other property.

19. Decree of mortgagee:

When the mortgagor had sold the property to a third party and the mortgagee in the suit did not implead such pur­chaser as party-defendant, the decree in favour of the mortgagee would not bind the purchaser and his right of redemption would not get adversely affected.

20. Decree under execution:

In the present case, the decree under execution was passed against the plaintiff’s father. It is admitted in the plaint that the property under attachment and sale is ancestral property. As stated in Mulla’ s Hindu Law (13th Edition) para 292:

“In a case where the son is under a pious obligation to pay father’s debt, the creditor may sue the father alone and obtain a decree against him and he may execute the decree by attachment and sale of the entire interest of the father as well as the son in the joint family property and the sale will bind the son, though he was not made a party to the suit, unless the debt contracted by the father was for an immoral purpose.”

Thus, on the plaint averments themselves, the decree under execu­tion, binds the plaintiffs so that in their suit for declaration, the relief that the decree be set aside or an injunction be issued to the decree-holder, is implicit (per dictum in AIR 1973 SC 2384) (supra).

21. Default in discharging:

The Supreme Court on aspects of clause in the award discussed as follows:

“This contention is based on the wording of Clause 7 of the award which provides that on the happening of certain events the respon­dents “shall be entitled to take back the possession”. We are unable to appreciate how this clause makes the award merely declaratory. It is never a pre-condition of the executability of a decree that it must provide expressly that the party entitled to a relief under it must file an execution application for obtaining that relief. The tenor of the award shows that the arbitrator did not intend merely to de­clare the rights of the parties. It is a clear intendment of the award that if the appellants defaulted in discharging their obligations un­der the award the respondents would be entitled to apply for and obtain possession of the property.”

22. Department proceedings:

A suit for declaration that dismissal from service is illegal after exhaustion of department proceedings is not barred.

23. Doctrine of res judicata:

A compromise decree is not a decision by the Court and it is the acceptance of by the Court of something to which the parties had agreed; and a compromise decree merely sets the seal of the Court on the agreement of the parties and the Court does not decide anything, nor can it be said that a decision of the Court was implicit in it. The Supreme Court further held that only a decision by the Court can be res judicata, whether statutory under Section 11, C.P.C., or constructive as a matter of public policy on which the entire doctrine rests and such a decree cannot be strictly regarded as a decision on a matter which was heard and finally decided and therefore, cannot operate as res judicata.

The Supreme Court on aspects of res judicata laid down that:

“The doctrine of res judicata, as it has been enunciated in a number of rules laid down in Section 11 of the Code of Civil Proce­dure covers a much wider field than the rule laid down in Section 43 of the Specific Relief Act. For example, the doctrine of res judicata lays particular stress upon the competence of the Court. On the other hand, Section 43 emphasizes the legal position that it is a judgment in personam as distinguished from a judgment in rem. A judgment may be res judicata in a subsequent litigation only if the former Court was competent to deal with the later controversy. Do such considerations find a place in Section 43 of the Specific Relief Act. Again, a previous judgment may be res judicata in a subse­quent litigation between the parties even though they may not have been eo nomine parties to the previous litigation or even claiming through them. For example, judgment obtained by a presumptive reversioner in a representative suit, or a judgment will bind the ac­tual reversioner even though he may not have been a party to it, or may not have been claiming through the parties in the previous litigation.”

24. Ejectment:

Plaintiff had registered sale-deed in his favour. None of the brothers of vendor have any objection. Defendant continuing in pre­mises as tenant. Therefore, defendant being bound by title of plaintiff, li­able to be evicted.

25. Enforcement of:

No relief of declaration that transfer order of employee was illegal can be granted as same would amount to enforcing contract of personal service which is prohibited under the law.

The Supreme Court on aspects of enforcement of contract of personal service has laid down as follows:

“On a consideration of the authorities mentioned above, it is, there­fore, clear that a contract of personal service cannot ordinarily be specifically enforced and a Court normally would not give a declara­tion that the contract subsists and the employee, even after having been removed from service can be deemed to be in service against the will and consent of the employer. This rule, however, is subject to three well recognised exceptions

(i) Where a public servant is sought to be removed from service in contravention of the provisions of Article 311 of the Constitu­tion;

(ii) Where a worker is sought to be reinstated on being dismissed under the Industrial Law; and

(iii) Where a statutory body acts in breach/violation of the manda­tory provisions of statute.”

26. Entitlement for:

The claimant is not entitled to declaration that he continues to be in the employment of respondent Company because the contract of employment does not entitle him to continue. Therefore, interference could not be called for.

27. Execution of decree:

The provisions of law contained in Section 34 of the Act are specific. Executing Court was bound by the terms of the decree and could not add or alter the decree on its notion of fairness or justice.

28. Execution of:

Where decree merely declared that plaintiff remained in service of State Government then execution Court has no jurisdiction to go beyond that decree and grant arrears of salary and consequential relief that apart, plaintiff too, cannot claim relief which he did not claim in suit.

29. Exercise of discretion:

In case of suit against encroachment on passage where undue delay of about 27 years was caused in seeking relief, plaintiff was rightly denied to relief of injunction.

30. Institute suit:

A litigant having a grievance of a civil nature has independently of any statute, a right to institute a suit in some Court or other, unless its cognizance either expressly or impliedly is barred.

31. Interest on arrears:

In the instant case, the plaintiff obtained a decree that he was entitled to be promoted from the post of Inspector of Police to that of Deputy Superintendent of Police with effect from the date when his juniors were promoted and further claimed relief for all conse­quential benefits, rights and privileges. The suit was decreed and in the execution application filed by the plaintiff in addition to the benefits flowing from the decree, he also claimed compound interest at the rate of 12% per annum on the amount found due to him. The claim of interest was allowed by the Executing Court.

This Court noticed that the decree which was put to execution did not contain any order or direction for the payment of any interest on the amount which was payable to the decree holder consequent to the declaration made by the Court decreeing a suit. It was also not dis­puted that no relief for interest had been claimed by the decree holder in his suit for any such claim was discussed or awarded by the Court decreeing the suit. This Court held that the executing Court was bound by the terms of the decree and could not add or alter the decree on its notion of fairness or justice.

The Court further observed that no doubt the Courts had power to award interest on the arrears of salary or pension or other amount to which a Government servant was found entitled to having regard to the facts and circumstances of the case but that power could not be exercised by the Executing Court in the absence of any direction in the decree.

32. Interference with:

Even if adverse inference is drawn against Mu­nicipality for not producing document in its possession but when it was not established that very same property was conveyed to predecessor-in-interest of plaintiff and plaintiff got the same by virtue of sale deed then such a finding of fact recorded by Court below cannot be interfered with by High Court in second appeal.

33. Jurisdiction of Civil Court:

Where a contract is enforceable under Industrial Disputes Act Civil Court has no jurisdiction to grant in junction to prevent threatened injury on breach of such contract.

34. Jurisdiction:

The exclusion of jurisdiction of Civil Courts has not been readily inferred. Such exclusion must be explicitly expressed or clearly implied. It is a cardinal rule of interpretation that a provision of law ousting the jurisdiction to a Civil Court must be strictly construed and the onus lies on the parties seeking to oust the jurisdiction.

35. Legal character:

The plaintiff-respondent, had not only the rights of a mortgagee decree-holder with regard to the property involved, but he was also the assignee of the rights of the Bank which had not the property, in question, attached in execution of its decree.

The plaintiffs wife became the auction-purchaser of this property dur­ing the pendency of the present litigation. At the time when he filed the suit the plaintiff may have been looking forward to purchasing the property. Although, the mere possibility of future rights of an intending purchaser could not, by itself, be enough to entitle him to get a declaration relating to a purported lease affecting the right to possess and enjoy the property, yet, the plaintiff possessed sufficient legal interest in the theatre, as a mort­gagee as well as an assignee of a decree-holder who has got the property attached before he filed his suit, so as to enable him to sue for the declara­tions he sought. He was not seeking a merely whimsical or eccentric or an unreasonable declaration of a right in property with no enforceable legal claims over it which could remain unaffected by the defendant-appellant’s claims as a lessee.

Where a person has no legal interest in the property, he cannot seek declaration with reference to legal character of such property.

36. Maintainability of:

The defendant No. 1 had become owner by adverse possession and the suit filed by the plaintiff was not maintainable. The Court also held that the suit ought to have been filed under order XXXIV of the Code of Civil Procedure, 1908 for redemption of mortgage and not for declaration of title and possession of mortgage-property. Ac­cording to the appellate Court, the suit filed by the defendant No. 1 against Annamalai was for recovery of money and the plaintiff-Jagdesa was not necessary party to the said suit and the decree passed in that suit and sale of the suit-property in execution was binding to the plaintiff also. Accord­ingly, the appeal was allowed. Judgment and decree passed by the trial Court was reversed and the suit filed by the plaintiff was dismissed.

37. Maintainability:

In the case, the appellant, was appointed as the Headmistress of the Jwala Devi Vidya Mandir, which was a society regis­tered under the Societies Registration Act, 1860. Appellant who later be­came the Principal of the institution challenged her order of suspension in an earlier suit and her order of termination from service in a later suit.

The second suit was partly decreed by the trial Judge and he upheld that the termination of service of appellant was not legal and awarded her a sum of Rs. 15,250/ – as arrears of pay for a period of 3 years together with interest and provident fund contribution. The High Court confirmed the decree but held that the sum awarded to her should be by way of damages and not towards arrears of salary since appellant will not be entitled to a declaration that she continued to be in the service of the institution and to a conse­quent order of reinstatement.

In further appeal to this Court by certificate, it was contended that the institution was a statutory body and that appellant was entitled to a declaration regarding her continuance in service. This Court repelled the contention and held that the Vidya Mandir, in spite of being governed by the University regulations and the provisions of the Edu­cation Code framed by the State Government and also being aided by edu­cational grants, still constituted only a private institution and as such appel­lant would only be entitled to a decree for damages, if her dismissal was wrongful and not to an order of reinstatement or a declaration of her ser­vices she continued to be in service.

38. Mortgage property—Legality of:

A mortgagee in possession un­der the terms of mortgage cannot, by merely asserting rights of ownership in the mortgage property, convert his possession as mortgagee not posses­sion hostile to the mortgagor. But the mortgagor can sell the mortgage prop­erty to his mortgagee and thereby put the mortgagee’s estate to an end and thereafter all the right, title and interest in the property would vest in the mortgagee.

Such a sale would be valid and binding and thereafter the char­acter of possession as a mortgagee would be converted into possession as an absolute owner. Even if such a sale in held to be voidable and not binding on a subsequent purchaser, the character of possession based on assertion of absolute ownership by the mortgagee does not alter, and if such possession continues throughout the statutory period it ripens into a title to the property.

39. Permissibility of:

It is not disputed that when a person gets into possession of properties as mortgagee, he cannot by any unilateral act or declaration of his prescribe for a title by adverse possession against the mortgagor, because in law his possession is that of the mortgagor. But what is contended is that if the mortgagor and mortgagee subsequently enter into a transaction under which the mortgagee is to hold the properties there­after not as a mortgagee but as owner that would be sufficient to start adverse possession against the mortgagor if the transaction is for any rea­son inoperative under the law.

40. Permissibility:

In case of wrongful termination of employment, the Court can only grant decree of damages and not of declaration of con­tinuing in service.

41. Permissive possession:

No prayer was made for possession of whole property. Plaintiff found to be not in exclusive possession. There­fore, the suit for declaration of title of property cannot be decreed.

42. Plea of limitation:

A new plea of limitation which is not purely on a question of law but on a mixed question of fact should not be allowed to be raised for the first time in a second appeal.

43. Possession of Court:

The property in custodia legis was in pos­session of the Court and the judgment-debtor had no right to dispossess such a custodian of the Court. If he did so, he would be guilty of theft.

44. Possession on basis of title:

In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the Court that he in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored with him. However, there is an essential distinction between burden of proof and onus of proof; burden of proof lies upon a person who has to prove the fact and which never shifts.

Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plain­tiff shall be held to have been discharged so as to amount to proof of the plaintiffs title.

45. Powers of Court:

Section 42 of the (old) Specific Relief Act is not exhaustive of the cases in which a declaratory decree may be made and the Courts have power to grant such a decree independently of the require­ments of the section. It follows, therefore, in the present case, that the suit of the plaintiff for a declaration that the compromise decree is not binding on the deity is maintainable as falling outside the purview of Section 42 of the (old) Specific Relief Act.

This Section is not exhaustive and the Courts have power to grant the relief of declaration independent of this Section.

In this case their Lordship of the Supreme Court held on this aspect:

“In our opinion Section 42 of the Specific Relief Act is not exhaus­tive of the cases in which a declaratory decree may be made and the Courts have power to grant such a decree independently of the re­quirements of the section. It follows therefore, in the present case that the suit of the plaintiff for a declaration that a compromise decree is not binding on the deity is maintainable as falling outside the purview of Section 42 of the Specific Relief Act.”

46. Pre-emption decree:

The title to the decree-holder accrues from the date of the payment required to be made under a pre-emption decree. In view of the deposit by the original plaintiff of the pre-emption amount in terms of the pre-emption decree, the dismissal of the execution petition was inconsequential since the plaintiff was in joint possession of the land, which was part of joint Khata. The land sold by ‘B’, which was subject- matter of the pre-emption suit, was not any particular part of the land of joint khata but was hid undivided share therein.

The share of ‘B’ had never been separated by way of partition before sale by him. The plaintiff was already in possession of the land along-with other co-sharers. There is nei­ther any plea nor any finding of partition having been effected by ‘B’. On the facts and circumstances, of the case, no actual possession was required to be obtained or delivered. When there was threat to the title of the plaintiff, there suit was filed by him. Supreme Court find no infirmity in the decision of the High Court.

47. Proof of:

Khasra is a record of right. Although the record-of-rights is not a document of title, the Court is perfectly entitled to take into consid­eration the entry in the record-of-rights for coming to the conclusion that certain person is the owner of the land in question. The party relying on presumption of correctness need not prove foundation or basis of correct­ness. Where the entry in the record of rights shows the suit land in the name of the plaintiff, the onus is on the defendant to prove that the said entry in favour of the plaintiff is not correct.

48. Redemption:

All the co-sharers have jointly redeemed the prop­erty and, thereafter, it became a jointly property of the brothers. The appel­lant no longer a mortgagee. The concurrent findings are that there was no private partition in which the property claimed to have been allotted to him was specifically negatived by the Court below. It is impossible to think that there is no ground warranting interference into the matter. The appeal is accordingly dismissed.

49. Registration of document:

Now the law is quite clear that ratifica­tion relates back to the original act provided there is a disclosed principal and this has been stated nowhere better than by Lord Macnaghten in Keighley Maxsted and Co. v. Durant, 1901 AC 241, quoting Tindal, C.J. in Wilson v. Tununan, 1843 (6) M&G 236:

“That an act done, for another, by a person though without any precedent authority whatever, becomes the act of the principal, if subsequently ratified by him, is the known and well-established rule of law. In that case, the principal is bound by the act, whether it is for his detriment or his advantage, and whether it be founded on a tort or on a contract, to the same effect as be, and with all the consequences which follow from, the same act done by his previ­ous authority. And so by a wholesome and convenient fiction, a person ratifying the act of another, who, without authority has made a contract openly and avowedly on his behalf, is deemed to be, though in fact he was not, a party to the contract.”

Relation back of an act of ratification was expressly accepted in this case. Other cases have been summarised in the Manual of the Law and Practice of Power of Attorney issued by the Council of Chartered Institute of Secretaries. This follows from the maxim of law “Omnis ratihabitio retrotrahitur et mandato priori aequiparatur” that is to say, ratification is thrown back to the date of the act done, and the agent is put in the same position as if he had authority to do the act at the time the act was done by him. The learned authors quote the case of the House of Lords which the Courts have above cited and added to it certain other cases with which the Courts do not consider necessary to encumber this judgment.

It therefore, follows that the second power-of-attorney was a valid docu­ment and it authorised the learned Counsel to execute the document as well as to present it for registration. This being a document ratifying a former inconclusive act related back to the time when the first document was made and cured the illegality in the presentation for registration which had taken place.

50. Relief of declaration:

The first respondent filed a suit seeking relief of declaration to use the suit path, to have free passage of light and air; to have privacy without any obstruction, for permanent injunction re­straining the appellant from obstructing the suit path or free passage of light and air and right of privacy of the High Court proceeded not on right lines to give reliefs to the first respondent.

Thus, the concurrent findings of the Courts below stand affirmed. Considering facts that two parties are neighbours and should have good neighbourly relations, order passed by Lower Courts is modified by passing suitable direction and for mandatory injunction directing the appellant to remove the construction put up ob­structing the said suit path.

51. Requirement of:

The plaintiff was already in possession of the land along-with other co-sharers. There is neither any plea nor any finding of partition having been effected. On the facts and circumstances of the case, no actual possession was required to be obtained or delivered.

52. Right to relief:

The right to relief must be judged to exist on the date a suit is instituted. In other words, right of a party is determined by the facts as they exist on the date when the action was instituted. Of course, the said judgment has also laid down that Courts can take note of subse­quent events and mould the relief but this can be done only in exceptional cases.

53. Scope of:

Section 42 of the Specific Relief Act (old) was not ex­haustive of the cases in which a declaratory decree might be made and the Courts had the power to grant such a decree independently of the require­ment of the section; and it followed, therefore, a suit by the plaintiff-worshipper for a declaration that the compromise was not binding on the deity was maintainable as falling outside the purview of Section 42. Declaration of rights based on tribal customs may similarly be held to be outside the purview of Section 34 of the Specific Relief Act.

The principle and import of Section 34 is that it refers to the declara­tion which serves to define rights, present or future, without a present re­lief. If the decree has the effect of giving present relief also, in that event the plaintiff would be entitled to the relief for declaration in view of the general provisions of C.F.C. (i.e. Section 9 read with Order VII, Rule 7 of the Code) as Section 34 of the Act was not exhaustive.

54. Service contract:

Where in a private employment there was no written contract and employee was not complying with the transfer order and seeking declaration that said transfer order was illegal and that she should continue to be in the service and be entitled to ail emoluments. She had also sought permanent injunction restraining employer from holding enquiry against her.

Relief, if granted would amount to enforcing contract of personal service which was barred under law. Such relief could not be granted by Civil Court and suit should be rejected at the threshold. An employer could not be forced to take an employee with whom relations had reached a point of complete loss of faith between the two.

55. Suit dismissed:

The Supreme Court on aspects of further relief has laid down that:

“A plea that the plaintiff asked for a bare declaration though he was in a position to ask for further relief within the meaning of Section 42 and hence the suit should have been dismissed in limine should be raised at the earliest point of time, in which event the plaintiff could ask for necessary amendment to comply with the provisions of Section 42. It is a well-settled rule of practice not to dismiss suits automatically but to allow the plaintiff to make necessary amend­ment if he seeks to do so.”

56. Suit for cancellation of decree:

A person having derivative title from his seller also has locus standi to sue for cancellation of instrument or decree.

57. Suit for declaration:

A suit for declaration of a right and an in­junction is governed by Article 120 of the Limitation Act, 1908 and in such a suit the right to sue arises when the cause of action accrues.

A suit for declaration that a compromise decree is not binding on Deity by a Hindu Worshipper is maintainable.

A suit for declaration that an order of dismissal or termination from service passed against the plaintiff is wrongful, illegal or ultra vires is gov­erned by the period of limitation of 3 years under Article 113 of the Indian Limitation Act.

A suit for declaration with a consequential relief for injunction is not a suit for declaration simpliciter. It is a suit for declaration with further relief. Whether further relief claimed is adequate or not must always depend upon the facts and circumstances of each case.

A suit for mere declaration without seeking relief of possession is not maintainable.

A suit was filed for mere declaration without seeking consequential relief to which the plaintiff was entitled and yet he had not sought for. The suit was dismissed as being not maintainable under proviso to Section 34 of the Specific Relief Act. An application under Order VI, Rule 17 of C.P.C. seeking the consequential relief by amendment of pleadings was filed in Appellate Court on a date by which the suit was barred by limitation. The application was rejected. Their Lordships held:

“The alternative relief was available to be asked for when the suit was filed but not made. He cannot be permitted to amend the plaint after the suit was barred by limitation during the pendency of the proceeding in the Appellate Court or the second Appellate Court.”

Agreement of plaintiff with owners for cutting and removing trees limited to two years only. On lapse of period neither fresh agreement obtained nor time of agreement got extended. Thus, right of plaintiff having come to an end. Hence, suit based-as on such agreement dismissed.

House purchased in the names of two sons by Muslim father who died leaving behind sons and daughters and two children of predeceased sons. Children of predeceased sons being in permissive occupation of house.

The property has devolved upon surviving sons and daughters only and children of predeceased sons have no right. However, daughter of prede­ceased son was allowed to live in the house during her life-time with her children.

In the case, the auction took place on 3.8.1996 and the sale was con­firmed and sale certificate was issued in favour of defendant No. 1 on 5.9.1966. Admittedly, the suit was filed by the plaintiff on 26.6.1980, that is, after a period of twelve years. In the circumstances, the lower Appellate Court was right in dismissing the suit. It was barred under Article 61 of the limitation Act, 1963. The lower Appellate Court, I was also right in observ­ing that since the plaintiff was claiming through Annamalai (original owner), he ought to have filed a suit for redemption of mortgage and not for decla­ration and possession of the property. Such suit was not maintainable.

In the instant case, Vaish Degree College which was registered under the Registration of Co-operative Societies Act was initially affiliated to the Agra University and later to the Meerut University. A Principal of the college who was appointed after obtaining formal approval of the Vice-Chancellor was terminated from service about two years later. The Principal challenged the order of termination in a suit filed by him on various grounds and he sought for a declaration regarding his continuance in service.

The Trial Court dismissed the suit but the Appellate Court decreed the same. In the second appeal there was a reference to a Full Bench regarding the jurisdiction of the Civil Court to entertain the suit and eventually the second appeal filed by the management was dismissed and the management came up in ap­peal to this Court by special leave.

This Court held that the Executive Com­mittee of the college was not a statutory body because it had not been created by or under the statute and it did not owe its existence to a statute. But on the contrary it was a body which came into existence on its own and was only governed by certain statutory provisions for the proper mainte­nance and administration of the institution. The Court summed up the law in the following words:

“It is, therefore, clear that there is a well-marked distinction between a body which is created by the statute and a body which after having come into existence is governed in accordance with the provisions of the statue. In other words, the position seems to be that the institution concerned must owe its very existence to a statute which would be the fountain-head of its powers. The question in such cases to be asked is, if there is no statute would the institution have any legal existence? If the answer is in the negative, then undoubt­edly it is a statutory body, but if the institution has a separate exist­ence of its own without any reference to the statute concerned but is merely governed by the statutory .provisions, it cannot be said to be a statutory body. The High Court, in our opinion, was in error in holding that merely because the Executive Committee followed cer­tain statutory provision of the University Act or the statues made there under it must be deemed to be a statutory body.”

In the petition of plaint, the appellants as plaintiffs stated:

“The plaintiffs pray that a decree for declaration to the effect that the defendants are neither the owners of the abovementioned land nor they have any right to get the aforesaid land redeemed as per the order of the S.D.O. Mukatsar exercising the powers of Collector, dated 6.8.1963 which is illegal and against law and the plaintiffs are not bound by it and neither the defendants are entitled to take pos­session of the aforesaid land in accordance with that order, be passed in favour of the plaintiffs against the defendants with costs.”

It will be noticed that they neither asked for the cancellation of the order of the Collector nor for any injunction, two of the reliefs which the plaintiffs were entitled to ask in the case in addition to the declaration. Such a suit would be hit by Section 42 of the Specific Relief Act, 1877.

The defendant 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. In these circumstances, it is not necessary to go into the other contention that the suit is barred by limitation.

The Plaintiff appellant has filed the suit simplicitor for declaration of title without any relief of recovery of possession when as per the evidence on the record she stands dispossessed of the suit plot and in this view of the matter also the suit filed by the plaintiff-appellant is equally not maintain­able.

The plaintiff, in order to prove that he was the real owner of the prop­erty was required to show that there were valid reasons for purchase of the property in the name of his wife and that he had paid the money for the purchase of the land. Plaintiff in his evidence as PW 1 admitted that neither his brother nor he himself had any creditors in the year 1933 when the land was purchased by his wife Ramayee Ammal. Therefore, the reasons given by him for the purchaser of the land in the name of his wife is not plausible. It also appears from his deposition that he had some other pieces of land in another village which were recorded in his name names of prospective creditors have not been disclosed. If there were any unsatisfied creditors then they would have proceeded against the plaintiff for the recovery of

their money by attachment or sale of the land held by him in other village. Action took place in 1927. Land was purchased by Ramayee Ammal in the year 1933. During these six years no other creditors had come forward to claim any money against him or his uncle for whom the guarantee was given by his brother. Debt, if any, would have become time barred. Even after 1933 no creditor came forward with any claim. Marappa Gounder, brother of the plaintiff died in 1923.

The property was sold in execution of the decree in the year 1927 and the sale deed in favour of Ramayee Ammal, the wife of the plaintiff was executed in the year 1933. Apprehension of the plaintiff that some other creditors of Marappa Gounder might proceed against the plaintiff is totally unjustified. The case put up by the plaintiff that he purchased the land in the name of his wife benami does not seem to be plausible.

The plaintiff did not provide any money for the purchase of the land in the name of his wife. Neither in the plaint nor in his deposition the plaintiff explained satisfactorily when the money was provided by a third person, neither the person who alleged to have paid the money nor anyone else on his behalf has examined as a witness. Therefore, it cannot be held that Pattayakkaarar or anyone else paid the consideration on behalf of the plain­tiff. It is not even averred by the plaintiff that Pattayakkaarar provided money on his behalf or that he repaid the money to him later.

It is well-settled that intention of the parties is essence of the benami transaction and the money must have been provided by the party invoking the doctrine of benami. The evidence shows clearly that the original plain­tiff did not have any justification for purchasing the property in the name of Ramayee Ammal. The reason given by him is not at all acceptable. The source of money is not at all traceable to the plaintiff. No person named in the plaint or anyone else was examined as a witness. The failure of the plaintiff to examine the relevant witness completely demolishes his case.

Since the original plaintiff failed to prove that he had provided the money for the purchase of the land and the reasons why he purchased the property benami in the name of his wife, the High Court has come to the right conclusion that Ramayee Ammal did not hold the property as benami on behalf of her husband Malaya Gounder.

The property was under attachment under Section 146 of the Criminal Procedure Code prior to its amendment in 1955 which was analogous to an attachment under Section 145, Criminal Procedure Code. Such an attach­ment, during the pendency of the proceedings, had the effect of placing the property in custodia legis. The Court held it for the benefit of the party which would be ultimately successful. A suit by one of the parties for a declaration of his ownership to such property was, therefore, held not to be barred by the proviso.

There was land in joint possession of co-owners on the sale of undi­vided share by one of co-owner pre-emption suit was filed by the other co­-owner. The suit was decreed. The amount as per decree was also deposited by the plaintiff co-owner in the Court as there was threat to title of plaintiff co-owner by the purchaser, the suit for declaration of title and permanent injunction was filed by plaintiff co-owner against the purchaser was held to be entitled to be decree as the plaintiff was circumstances, no actual pos­session was required to be obtained or delivered.

Where in a suit for declaration of title of property in respect of which plaintiff prayed for injunction to restrain municipality from interference, however, failed to establish that suit property was conveyed to predecessor-in-interest of plaintiff who got it by virtue of the sale-deed and bound­aries mentioned were different, finding against plaintiffs cannot be inter­fered with.

Where suit for declaration and possession was filed in respect of house left behind by Muslim father having sons and daughters which was pur­chased in the names of two sons, children of predeceased sons being in permissive occupation of house since 1927 but property has devolved upon surviving sons and daughters only, children of predeceased sons have no right. However, daughter of predeceased son is entitled to live in the house during her life time with her children.

Where suit for declaration of title and recovery of possession was filed and suit property consisting of shop was situated just adjoining the prop­erty owned by temple and documents filed by the plaintiff to prove that the temple was not owner of the property, he would be entitled to recover possession.

Where suit for declaration of title was filed claiming that the suit prop­erty was purchased from the defendant and did not belong to the Gurudwara committee in absence on notification, failure to produce notification would not mean; that the property was not the property of committee but it was private property and hence the suit was liable to be dismissed.

Where suit for declaration of title was filed in the basis of letter of allotment and possession certificate issued by Development Authority and the defendant who was alleged to have trespassed admitted title of plaintiff, order of first Appellate Court that the documents clearly established the possessory rights of the plaintiff over the suit property cannot be interfered with.

Where the defendant was in possession of some of the suit properties and the plaintiff in the suit does not seek possession of those properties but merely claims a declaration that he is the owner of the suit properties, the suit was not maintainable. However, in that case there was no prayer for the relief of injunction and the possession, as found by the Courts, was with the defendant.

Where the plaintiffs claimed as heirs and sued to obtain a declaration of their rights in a certain institution which was in the management of trust­ees with an injunction restraining the defendants (other claimants) from interfering with their rights, it was held that whether the further relief claimed in a particular case as consequential upon a declaration is adequate must always depend upon the facts and circumstances of each case. A suit for declaration with a consequential relief for injunction is not a suit for decla­ration simpliciter, it is a suit for declaration with further relief.

58. Suit for declaratory:

The plea that the further relief though avail­able not asked, should be raised at earliest time so that the plaintiff could ask for necessary amendment to comply with the provision of Section 42 of the Specific Relief Act. Where the plaintiff is not in need of further relief, a suit for declaratory decree ought to be dismissed on the ground that it is barred under the proviso to Section 42, unless it is quite clear that the plaintiff ought to seek further relief which he had failed to seek.

59. Suit for injunction:

Ft is well established that for deciding the nature of a suit the entire plaint has to be read and not merely the relief portion, and the plaint in the present case does not leave any manner of doubt that the suit has been filed for establishing the title of the plaintiffs and on that basis getting an injunction against the appellant Corporation. The Court fee payable on the plaint has also to be assessed accordingly. It follows that the appellant’s objection that the suit is not maintainable has to be rejected.

60. Suit for partial partition:

The causes of action are different and the relies are also different. To hold that the relief of; declaration and injunction are larger reliefs and smaller relief for partition: could be granted is incorrect. Even otherwise, a suit for partial partition in the absence of the inclusion of other joint family properties and the impleadment of the other co-sharers was not warranted in law.

61. Suit for permanent injunction:

A suit for permanent injunction restraining defendants from alienating or dealing with the suit property form­ing subject-matter of contract for sale was filed. Subsequently, relief of specific performance of contract was sought to be added by way of amend­ment after a lapse of 7 years, by which time the relief was barred by limita­tion. Their Lordships held:

“Having allowed the period of seven years to elapse from the date of filing the suit, and the period of limitation being three years under Article 54 of the Schedule to the Limitation Act, 1963, any amend­ment on the grounds set out, would defeat the valuable right of limitation accrued to the respondent.”

Where the plaintiff-appellant had filed a suit for permanent injunction for a declaration that he continued to be in service and that he was also entitled to all the benefits flowing from the declaration, it was urged that plaintiff i did not claim either relief for damages, etc., or three years’ salary hence the suit was not maintainable. But their Lordships of the Supreme Court allowed three years’ salary even though the same was not claimed by the plaintiff-respondents. It was manifest, accordingly, from the facts of that case that even though further relief which could have been claimed by the plaintiff, was not claimed, nevertheless suit was held to be maintainable and three years’ salary as damages was awarded by their Lordships of the Supreme Court.

62. Suit for perpetual injunction:

A suit for perpetual injunction can­not be dismissed on the ground that the relief of declaration of title was not specifically mentioned in relief portion of the plaint.

63. Suit for possession:

The plaintiff having not been in possession over the suit property did not seek further relief for possession and in that context it was held that suit was not maintainable.

64. Suit for recovery:

On aspects of alienation of trust property the Supreme Court of India laid down as follows:

“The legal position is also well established that the worshipper of a Hindu Temple is entitled in certain circumstances to bring a suit for declaration that the alienation of the temple properties by the de jure shebait is invalid and not binding upon the temple. If a shebait has improperly alienated trust property a suit can be brought by any per­son interested for a declaration that such alienation is not binding upon the Deity but no decree for recovery of possession can be made in such a suit unless the plaintiff in the suit has the present right to the possession, worshippers of temple are in the position of cestui que trustent (S.l.C.) or beneficiaries in a spiritual sense (See Vidhyapurna Thorthaswami v. Vidhyanidhi Thorthaswami, 1904 ILR 27 Mad 435 p. 451. Since, the worshippers do not exercise the deity’s power of swing to protect its own interests, they are not entitled to recover possession of the property improperly alienated by the shebait but they can be granted a declaratory decree that the alienation is not binding on the Deity. See for example Kaiyana Venkata mana Ayyangar v. Kasturiranga Ayyangar, ILR 40 Mad. 212 AIR 1917 Mad. 112 (FB) and Chidambaranatha Thambiran v. Nallesivan Mudaiiar, ILR 41 Mad. 124 : AIR 1918 Mad. 464. It has also been decided by the Judicial Committee in Abdur Rehim v. Mahamed Barkat Ali, 55 Ind. App 96 AIR 1928 PC 16, that a suit for declaration that property be­longs to a wakf can be maintained by Mohammedans interested in the Wakf without the sanction of the Advocate-General and declara­tion can be given in such a suit that the plaintiff is not bound by the compromise decree relating to wakf properties.”

65. Suit for redemption:

From the facts, it is clear and is not disputed that Annamalai was original owner of the property who mortgaged it to defendant No. 1. Thus, Annamalai was mortgagor and Rukmani Ammal- defendant No. 1 was mortgagee. Since it was as usufructuary mortgage, defendant No. 1 was put in possession of the property as mortgagee. It was in June, 1962. It is also not in dispute that defendant No. 1 had advanced another loan on a different pro-note to Annamalai. Annamalai sold part of the property to the present plaintiff on 13.8.1964, when the property was in possession of defendant No. 1 as mortgagee. It has come on record that since the amount under separate pro-note was not repaid by Annamalai to defendant No. 1, the latter filed Small Cause Suit for recovery of money due and a decree was passed against Annamalai by a competent Court. In ex­ecution proceedings, the suit property was sold by the Court in public auc­tion and defendant No. 1, with the permission of the Court, purchased it on 3.8.1966. Auction was confirmed and sale certificate was issued in favour of defendant No. 1 on 5.9.1966. It is, therefore, clear that according to defendant No. 1, he became absolute owner of the property in view of purchase of property in Court auction by her as the sale was confirmed and sale certificate was issued. The Counsel for defendant No. 1 is right in con­tending that when Annamalai sold part of the suit property to the plaintiff in 1964, the property was already mortgaged to defendant No. 1 who was in possession of the property. Defendant No. 1 is, therefore, right in submit­ting that the plaintiff ought to have filed a suit for redemption of mortgage and nor for declaration of title and possession of property, The Counsel for defendant No. 1 is also right in submitting that once the property was sold to defendant No. 1 who was mortgagee in possession, she could not be continued as mortgagee inasmuch as after the sale, she was claiming the property as an owner thereof. Her status as mortgagee came to the an end with the purchase of property and in the eye of law, it could be said that she was claiming title over the property which was adverse to the owner of the property.

66. Suit for specific performance:

The defendant was alleged to be a rank trespasser who was in the process of committing a trespass and was allegedly raising unauthorised construction over the property neither owned nor legally possessed by him. The relief of specific performance is not a further relief to which the plaintiff is entitled or which he could have sought for against this defendant. Thus, from the point of view of the present de­fendant, Court could not find any such defect or infirmity in the relief sought for by the plaintiff as would render the suit not maintainable and liable to be thrown out at the threshold.

67. Title:

The appellants contended that there are series of revenue records to show that the suit property was being cultivated by Bhola Singh and all the entries in these records show that the first respondent had no right to possession of property. Reference was made to series of docu­ments produced by the appellants. It is true that in some of the documents produced by the appellants. Bhola Singh is shown as the cultivator of these properties.

This is not sufficient to prove that the occupancy right or the title of the suit property vested in Bhola- Singh. These revenue records are quite consistent with the fact that Bhola Singh must have been in posses­sion of this property as an employee or manager of the Gurdwara. The entries in the revenue records by itself cannot prove the title to the property unless it is supported by other evidence.

In the instant case, it is proved by satisfactory evidence that the prop­erty belonged to the Sikh Gurdwara and the appellants failed to prove that their predecessors-in-interest, namely, respondents Nos. 2 and 3 acquired any title from Bhola Singh. Consequently, the sale deed in favour of the appellants did not confer any title on them in respect of the suit properties. The appeal is without any merits and it is liable to be dismissed.

The defendants produced the relevant file of Residency Area Authority. However, this file does not show that any permission was given to Somaji for either construction of a boundary wall or for sale of the plot. The trial Court gave good reasons for doubting the genuineness of these documents, which were ignored by the learned single Judge. The Division Bench, in our opinion, has rightly held that the documents were suspicious in nature and could not have been relied upon. Even otherwise, a document granting permission to construct a boundary wall cannot establish title to the prop­erty as even a lessee or a tenant can seek permission for making such kind of construction. The plaintiff has admitted in his cross-examination that he was Mayor of Municipal Corporation, Indore, in 1959-60, and was a Co-operator till 1964. He was in a position to exercise his influence in obtaining some kind of documents from the Public Works Department of the Munici­pal Corporation.

The defendants have filed a copy of the lease deed which shows that a lease for a period of 10 years was granted by Residency Area Authority. Indore, in favour of General Secretary, United Church of Canada Mission, Indore on 31.7.1947 for 5.11 acres of land and the boundary of the leased out area more or less tallies with the boundary of the land in dispute. This document belies the case set up by the plaintiff that Somaji was owner in possession of the land in dispute.

The Division Bench of the High Court has, after appraisal of the evi­dence on record, come to a finding that the plaintiff has miserably failed to prove his title to the property. This is not the function of this Court, in a special leave petition under Article 136 of the Constitution, to reappraise the evidence unless the findings are shown to be perverse or they are viti­ated by any error of law resulting in miscarriage of justice. Counsel for the appellant has not been able to point out anything which may impel Su­preme Court to interfere with the findings recorded by the High Court in the impugned judgment.

68. Transfer of property by guardian:

The High Court held that trans­fer of property by guardian during the minority of a person is not ispo facto void but is only voidable at the instance of minor and such a right has to be exercised within three years of attaining of majority by the minor in terms of Article 44 of the Limitation Act. The Court further held that no suit having been instituted either by the minor or by the defendant to avoid the sale of 1945, the period expired and, therefore, the defendants under no circum­stances could succeed. In my considered opinion, the principle of law laid down in this decision would not render any assistance to the plaintiff.

69. Ultra vires—Maintainability of:

The present case is not one where any specific performance of the orders issued by respondent Mos. 1 and 2 under the Grant-in-Aid Code is sought; on the contrary the appellant-plain- tiff (management) challenged the impugned orders as being ultra vires and beyond the powers of respondent Nos. 1 and 2 and since the impugned orders were likely to affect the appellant-plaintiff adversely, it sought a declaration that the orders were ultra vires, Such a suit, would be Clearly main­tainable and the first Appellate Court’s view in this behalf was right. On merits, the High Court gave no finding whatsoever, but the Trial Court as well as the first Appellate Court came to the conclusion that the said orders were ultra vires and without jurisdiction. It may be stated that respondent Nos. 1 and 2 were not aggrieved by the finding which had been recorded against them. No appeal was carried by them to the High Court against it and hence they must be regarded as having acquiesced in it. Even other­wise, the order directing the reinstatement of Smt. Jalakshi and non-ap­proval of Smt. Manorama Rao is unsustainable in law.

In the result, the appeal is allowed, the judgment and decree of the High Court is set aside and that of the first Appellate Court is restored. There will be a declaration in favour of the appellant-plaintiff that the orders dated 24.11.1964 and 3.2.1965 are ultra vires and without jurisdiction.

70. Valid consideration:

The brothers obviously had a settlement pur­suant to which the demised property has been allotted to the share of one who had sold the property to the appellant under the sale-deed which is a registered conveyance for valid consideration. Under those circumstances, by operation of Section 17 of the Registration Act, 1908, the appellant gets valid title to the property.

The pre-existing right, title and interest in the property of others stood extinguished by operation of the law. Thereby, the appellants get valid title to the property. Since the respondent was continuing as a tenant, obviously, he is bound by the title since the suit has been laid for eviction of the respondent and decree for eviction was rightly granted.

71. Virtue of rights:

It is true that as mortgagee-in-possession ‘K’ and ‘L’ derived their title to possession through the mortgagors and by virtue of their rights under the said mortgage. They were entitled, therefore, to con­tinue to be in possession under the said mortgage and so long as it sub­sisted. By merely asserting rights of ownership in the said shops they could not convert their possession as mortgagees and unilaterally alter their law­ful possession as mortgagees into possession hostile to the mortgagors.

But it is a well settled proposition that mortgagor can sell the mortgaged property to his mortgagee and thus put the mortgagee’s estate to an end and thereafter all the right, title and interest in the property would vest in the mortgagee. Such a sale would be valid and binding as between them and thereafter the character of possession as a mortgagee would be con­verted into possession as an absolute owner.

Even if such a sale is held to be voidable and not binding on a subsequent purchaser the character of possession based on assertion of absolute ownership by the mortgagee does not alter, and if that possession continues throughout the statutory period it ripens into a title to the property.

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