Suit for Declaration,Injunction without asking for Possessio

Rahul Singh (Querist) 11 May 2010 This query is : Resolved
Facts of the Case-Joint Hindu Family(father & Sons )partition took place,separated son got his name in the property,son and his wife died-Only heir their daughter,her name came on property,she sold theproperty(agricultaral land,uncultivated)by regd.sale deed.Dispute arose between the purchaser & relatives of Pltff.Purchaser & seller(daughter)filed suit for Declaration & Injunction.Court in its judgment found Dec.& Inj.proved, but only on the statement of seller(daughter)held that she was not in physical possession & the relief of possession has also not been asked,hence dismissed the suit on this ground only.Although the defd.also did not prove their possession.
Q. Whether the suit can be dismissed only on the ground of tecnicality of not claiming possession for.(O.7R.7 & S.34 Spe.Rel.Act)? I was for Pltff. Have filed appeal-So need opinion and ruling.

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niranjan (Expert) 11 May 2010
There is one judgment of 1972 of SC that if possession is not asked mere futile decree of declaration cannot be given.

R.R. KRISHNAA (Expert) 11 May 2010
Dear Rahul

The judgment dismissing the suit for declaration and injunction is wrong in as much as both the plaintiff and the defendant is out of possession of the property. The plaintiff is not obliged to ask for possession when the defendant is not in possession (Deo Kaur Vs Sheo Prasad Singh - AIR 1966 SC 359). Hence on this ground the suit for declaration filed by you has to be allowed in your favour though you are not in possession.

Section 34 clearly states that when both the plaintiff and the defendant are not in possession a mere suit for declaration and injunction will suffice without a prayer for possession.

Moreover Supreme Court has given guidelines not to dismiss a suit if a further relief of possession is not sought by the plaintiff but to provide an option to the plaintiff to amend the suit. However you can still make an amendment in the appeal provided you had not declined any option given by the trial court to make an amendment in the suit.

Or else you may simply file a separate suit for possession as there is no bar under order II rule 2 of CPC.(Basanna Vs Appa Rao - AIR 1959 Mysore 227) (Palaniappa Vs Vittiammal - AIR 1988 Madras 156).

Good Luck…