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SUIT FOR DECLARATION WITHOUT SEEKING POSSESSION EXPLAINED

HONBLE JUSTICE Dr. B.S. CHAUHAN & HONBLE JUSTICE FAKKIR MOHAMED IBRAHIM KALIFULLA in the case of Venkataraja & Ors. vs Vidyane ... Decided on 10 April, 2013:-
In Shakuntla Devi v. Kamla & Ors., (2005) 5 SCC 390, this Court while dealing with the issue held: “……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 an earlier declaratory decree is filed, it is open to the defendant to establish that the declaratory decree on which the suit is based is not a lawful decree.”

Doctrine embodied in the legal maxim, ‘Ubi jus ibi idem remedium’ (where there is a right, there is a remedy). This Court dealt with the aforesaid doctrine in Dhannalal v. Kalawatibai & Ors., AIR 2002 SC 2572 and held, that “if a man has a right, he must have the means to vindicate and maintain it, and also a remedy, if he is injured in the exercise and enjoyment of the said right, and that it is indeed, a vain thing to imagine a right without a remedy, for the want of a right and the want of a remedy, are reciprocal”. (See also: Smt. Ganga Bai v. Vijay Kumar & Ors., AIR 1974 SC 1126)

Legal maxim, ‘Actus Curiae Neminem Gravabit i.e. an act of Court shall prejudice no man’. This Court dealt with the said maxim in Jayalakshmi Coelho v. Oswald Joseph Coelho, AIR 2001 SC 1084, and explained its scope, observing: “….where the order may contain something which is not mentioned in the decree would be a case of unintentional omission or mistake. Such omissions are attributable to the Court who may say something or omit to say something which it did not intend to say or omit. No new arguments or re-arguments on merits are required for such rectification of mistake.”

Corporation Of The City Of ... vs M. Papaiah And Anr. AIR 1989 SC 1809, It is well established that for deciding the nature of a suit the entire plaint has to be read and not merely the relief portion……

In Deo Kuer & Anr. v. Sheo Prasad Singh & Ors. AIR 1966 SC 359, this Court dealt with a similar issue, and considered 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 property, to claim the possession.
In Vinay Krishna v. Keshav Chandra & Anr., AIR 1993 SC 957, Court while dealing with a similar issue held: “……It is also now evident that she was not in exclusive 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 failure to do so undoubtedly bars the discretion of the Court in granting the decree for declaration.”
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, it is obligatory on the part of the defendants to raise the issue at the earliest. (Vide: Parkash Chand Khurana etc. v. Harnam 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. 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 relief.”

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