PADMAVATHI Vs. KESAVA REDDI

JUDGEMENT

(1.) THE appellant is the legal representative of the first defendant in a suit for declaration of title and for recovery of possession on the strength of title. Both the courts denied the declaration sought, but allowed recovery on the strength of title. THE claim of the plaintiff is based on Ext. A10 which is a registered will dated 17-5-1974, executed by his mother-in-law Honnammal, by which the suit property was devised to the plaintiff. All other properties were devised to her daughter the 5th defendant, who is the wife of the plaintiff. THE plaintiff contended that by virtue of the devise under Ext. A10, he was entitled to recover possession of the building which had been brought to sale in a court auction in execution of the decree in os No. 1166 of 1958 which was a suit for recovery of a sum of Rs. 900/-instituted by a Krishna Goundan against the plaintiff's wife (the 5th defendant in the present suit ). THE plaintiff himself was not a party to that suit. In that auction the highest bidder being the first defendant, the building in question was sold to him for a total consideration of Rs. 3020/ -. After adjusting the decree amount, the balance consideration was paid to the 5th defendant.

(2.) BOTH the courts found that the 5th defendant had no right in the property sold in execution of the decree in OS No. 1166 of 1958. That building had been devised to the plaintiff under Ext. A10. Although the 5th defendant was the plaintiff's wife, the decree against her in that suit could not have been validly enforced against her husband's property.

(3.) BOTH the courts held that the plaintiff was not entitled to a declaration but he was granted a decree for recovery on the strength of title. In a suit for recovery on the strength of title, the relevant provision of the Limitation Act is Art. 65 and not the residuary art. 113. The prayer for declaration in such a suit is a mere surplusage. What is sought is to recover property which the plaintiff has been dispossessed of and the recovery sought is on the strength of his title which must be established on proof of the relevant facts. What is sought in such a suit is not a declaration as to status, or the holding of an office or the scope and meaning of a public document, but the finding of facts evidencing tide. The nature of sued a suit was discussed at length by a Full Bench of the Patna High court is Bankhelawan Sabu v. Bir Surendra Sahi, AIR 1938 Patna 22, 26 (FB ). Although the discussion on the point in that case arose under the Court Fees act, 1870, it is pertinent to the question as to the nature of the suit and the relief sought. In view of the importance of the question, I shall extract in full the relevant passages: "it would seem that there is much misunderstanding in India as to the legal meaning of the word 'declaration' as applied to a remedy to be granted by a Court. The habit has grown up of describing a suit for possession of properly as being a suit'for a declaration of title together with a decree for possession of the property in suit', and the word 'declaration' has been used to mean what would more correctly be described as the finding of fact necessary before the decree for possession can be granted. In every suit for possession the plaintiff cannot succeed unless he proves the facts necessary to establish his title, but the real remedy which he seeks is a decree for delivery of possession. The distinction between the remedy sought and the finding of fact necessary to justify the granting of that remedy may be simply tested by considering whether the plaintiff obtaining an order for possession but having been refused a formal 'declaration' in the decree could come to the appellate Court with a complaint that he had not received the whole of the remedy for which he had asked. If the Appellate Court is in a position to tell the plaintiff that the remedy of possession is all that the plaintiff is entitled to ask and that the so-called 'declaration' claimed in the plaint is merely a finding of the Court set forth in the judgement as distinct from the decree, the jurisdiction for granting the remedy, then the so-called 'declaration' claimed in the plaint is not a declaration at all. If, on the other hand, the Appellate Court should find that the plaintiff is really making a claim to a declaration properly so called and that the decree for possession is merely consequential relief, it may under s. 12 of the Act adjust the matter of the court-fee in accordance with S. 7, para. (iv ). It is this very difference which is at the basis of the practice under which the Court will not ordinarily grant a mere declaration and the plaintiff must claim consequential relief also. S. 7, Para. (iv) (c) has application to declaration properly so called, such for instance as declarations of public status, or a declaration that the plaintiff holds a public office, or a declaration as to the meaning of a will or a trust deed or other public document. It has no reference to the kind of declaration in the-sense of a finding of fact as to the plaintiff's title necessary for granting a decree for possession. It is not in the least necessary for a plaintiff in a suit for possession to claim a declaration. Indeed declarations in the true sense are rarely required. The plaintiff should only allege the facts necessary to establish his title and that the defendant is wrongfully in possession. If he goes on to claim, in the manner so beloved of pleaders, a declaration of title in addition to an order for possession, the Court may and should treat the case as a claim for possession pure and simple, and ignore entirely the claim for a 'declaration of title'. Suits for possession of land, houses and gardens are to bear a court-fee as provided by para. (v), that is to say, if the land forms an estate paying revenue to Government, at a multiple of the revenue so payable. There are also provisions for valuing the suit where the land does not pay revenue to Government, and also for valuing the suit if the subject matter is a house or garden. Therefore, the valuation of the suit for, court-fee purposes is to be determined by the question of whether the suit is really one for a declaration in the true sense of the word, or whether it is a suit for possession; and, if there be a claim in the plaint for a declaration, the plaint should be examined to see whether it is a declaration properly so called, or whether it is an unnecessary claim and the suit is really a suit for possession. " It is thus clear that the prayer for declaration was unnecessary, and was therefore not granted, and what was in fact necessary and granted was a decree for recovery of possession on the strength of title. Such a suit was governed by Art. 65 of the Limitation Act and it was brought well within time.