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venkitasubramanian m d (advocate)     15 April 2012

Is prayer for declaration of title mandatory in recovery sui

 

A suit is laid for recovery of possession against a trespasser. The relief sought for is for recovery of a portion of the property trespassed upon. The defendant denies title.   the relief of declaration is an optional relief available to a person, who feels that there is a cloud on his title and that should be removed. When the cause of action is trespass and the defendant has no better title, is not a suit simpliciter for recovery on title without  seeking a declaration maintainable. Several suits are routinely filed, entertained and decreed if title is proved? Shall be glad to have advice and rulings apart from the Supreme Court ruling in 2007

 

venkitasubramanian adv.



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 4 Replies

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com))     15 April 2012

100 % maintainable - you don't need any rulings. You've not made clear whether you have filed the suit u/s 5 or 6 of the SRA - in the latter the trespasser won't even be able to raise the question of title, if actual possession + dispossession is proved  - you get possession. Since you are suing on title - your suit may be filed u/s 5 SRA r/w S.9 CPC r/w Art. 65 of the Limitation Act - in this case your burden is to prove your possessory title, there is a presumption working in favour of person in possession (S.110 IEA) that he is the owner you need to rebut that. 

H. S. Thukral (Lawyer)     15 April 2012

if the defendant is denying your title in the WS, the issue will be framed. if you have not prayed for declaration in the plaint you can amend the prayer now and ask for decalration of title as well. 

MohammedRaffiq Bijapur (Advocate)     15 April 2012

If you are relying on deed to prove your title then the mere denial by the defendant is no matter. go ahead declaration is not manatory. Further follow the advise of Adv Bharat Chugh.

venkitasubramanian m d (advocate)     19 April 2012

thanks indeed  Mr. Bharath Chug.

The suit is laid under Sec. 5 of the Sp.Relief Act and so the summary relief available under sEc. 6 is not applicable. I have no doubt about the position, but  not so well grounded judges look at 2008 SCC and require citations to decree a simple suit for recovery  where title is denied and there is no title found in favour of the defendant.    I shall be obliged to have citations. The one I find is AIR 2007 AIR, but require something more than that. Relief of declaration under Sec. 34 is where the plf. feels that there is a cloud on title and it should be removed by a declaration.  I shall be happy if you take the thread on 

 I am a civil lawyer from kerala for over four decades, having succeeded in several such suits. But then there are negative hypertechnical doubting judges and hence this query to post my self with more.

. I like this  forum having helped contact you.


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