'A' filed a suit against 'B' for declaration of title in a land. The suit was dismissed by the Trial Court as well as Appellate Court .....Decide.

Question: 'A' filed a suit against 'B' for declaration of title in a land. The suit was dismissed by the Trial Court as well as Appellate Court on the ground that 'A' has no possession in the land. 'A' moved an application for amendment in pleadings seeking the relief for possession also over the land in second appeal. Can the amendment be allowed, although the relief for possession on the date of application for amendment in pleadings was barred? Decide. [JJS 2018]

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Answer

Under Section 34 of the Specific Relief Act of 1963, a suit for declaration of title without seeking recovery of possession is not maintainable when the plaintiff is not in possession. Recently, the Supreme Court reiterated Vasantha (dead) thr. LR v. Rajalakshmi @ Rajam (dead) LRs., Civil Appeal No. 3854 of 2014 that a plaint could be amended at any suit stage, even at the second appellate stage.

The proviso of Section 34 states that “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.” Thus, the proviso restricts the application of such discretion, which is not to be exercised when the complainant seeks only a declaration of title while further relief can be sought.

To adjudicate this point of law, the Court relied on several cases where it was observed that the suit could have been amended, even later, to seek consequential relief. For instance, in Venkataraja and Ors. v. Vidyane Doureradjaperumal (Dead) thr. LRs, (2014) 14 SCC 502 it was observed that the purpose behind including the proviso is to prevent a multiplicity of proceedings. A mere declaratory decree remains non-executable in most cases.

Further, in Union of India v. Ibrahim Uddin, (2012) 8 SCC 148, it was observed:

“55. The section provides that courts have discretion as to declaration of status or right, however, it carves out an exception that a court shall not make any such declaration of status or right where the complainant, being able to seek further relief than a mere declaration of title, omits to do so.”

In Ram Saran v. Ganga Devi, [(1973) 2 SCC 60], the Court had held that the suit seeking for declaration of title of ownership but where possession is not sought is hit by the proviso of Section 34 of the Specific Relief Act, 1963 and, thus, not maintainable.

Taking a cue from the ration decidendi laid down in these precedents, the Hon’ble Supreme Court opined that the plaintiff did not attempt to amend the plaint to seek the relief of recovery of possession. Thus, the Court dismissed the appeal in recent case while deciding this point of law in Favor of the Appellant.

Thus, in light of the aforesaid provision and precedent, it can be legally deduced that in the present case at hand, the amendment cannot be allowed.