HARI MALLICK Vs. CHITTARANJAN SAMAL

JUDGEMENT

(1.) Plaintiff is the appellant in a suit far declaration only.

(2.) ONE Bharat was owner of some landed properties. Ha died in the year 1958 leaving behind his widow Sakuntala. in 1963, one Matmwar filed a suit for partition against Sakuntala. third wife of Bharat claiming to be the adopted son of Bharat. Suit having been dismissed. Maheswar filed First Appeal No. 04 of 1971 in this Court. During pendency of the First Appeal, Sakuntala died on 23 -4 -1972. On death of Sakuntala, dispute relating to possession of the properties of Bharat arose between plaintiff and Ors. on one side and defendant No. 1 and Anr. on the other side. When the dispute was brought to notice of learned Executive Magistrate by defendant No. 1, a proceeding under Section 145 Cr.P.C. was initiated apprehending breach of peace in which preliminary order was passed on 9 -8 -1972. At that stage, defendant No. 1 filed an application in First Appeal to be substituted in place of deceased Sakuntala on the basis of liar last will in his favour. Plaintiff also filed an application for substitution claiming to be the nearest reversioner of Bharat. Both plaintiff and defendant No. 1. were allowed to be substituted in place of Sakuntala for continuation of the First Appeal where the question for consideration was whether Maheswar was adopted son of Bharat and Sakuntala. First Appeal by Maheswar was dismissed finding that he is not the adopted son of Bharat and Sakuntala. As regards claim of plaintiff to be nearest reversioner of Bharat and of defendant No. 1 to be the owner of the properties of Bharat on the basis of last will of Sakuntala, it was left open to be adjudicated and decided in a separate suit. Before disposal of the First Appeal in 1976, 145 Cr.P.C. proceeding was completed in 1073 where defendant No. 1 was declared to be in possession of the property of Bharat restraining Maheswar, plaintiff and Ors. from interfering with possession of defendant No. 1 until evicted in due process of law. In the earlier First Appeal, defendant No, 1 of this suit was appointed as receiver in respect of the properties after possession was declared in the 145 Cr.P.C. proceeding in his favour. After dismissal of the First Appeal in 1976 when defendant No. 1 continued in possession, plaintiff has filed the present suit only for a declaration that he is the nearest reversioner of Bharat.

(3.) UNDER Section 34 of the Specific Relief Act, 1963, a suit for more declaration without consequential relief which is available to be sought for, is not maintainable. It reads as follows : '34. Discretion of Court as to declaration of status of right: Any person entitled to any legal character, or to any right as to any property may institute a suit against any person denying or interested to deny his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief : Provided that no Court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title omits to do so. Explanation - -A trustee of property is a 'person interested to deny' a title adverse to the title of someone who is not in existence and for whom, if in existence, he would be a trustee'.