# Smt. Rekha Mishra & Anr v. Shiv Prasad Srivastava & Ors

- **Citation:** (2014) 3 ILRA 1240
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-09-05
- **Case number:** First Appeal No. 447 of 2014
- **Bench:** Rajes Kumar, Om Prakash-Vii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rekha-mishra-anr-v-shiv-prasad-srivastava-ors-43110
- **Pages:** 5

## Headnote

C.P.C. Order VII Rule-11-read with Specific
Relief Act-34-Rejection of Plaint-suit for
declaration
without
possession-held-not
maintainable-held
Trail
Court
not
committed any error-Appeal dismissed.
Held: Para-10
We do not find any error in the impugned
order. The relief sought in the plaint has
been referred hereinabove. The admitted
fact is that the appellants were not in
possession of one of the shop on the ground
floor and the other on the first floor of the
house in dispute, while the decree of
declaration was being sought to declare the
appellants as the sole and exclusive owners
of the house no. 117/193/I, block, Navin
Nagar, Kanpur Nagar, without seeking the
relief of possession of those portions of the
house which were not in the possession of
the appellants.
Case Law discussed:
AIR 1993 SC 957; (2002) 7 SCC 559; (2003) 1
SCC 557; (2005) 7 SCC 510; (1993) Suppl. 3 SC
129; (2007) 14 SCC 535; (2013) 3 AWC (SC)
2213; AIR 1996 SC 642; (2005) 5 SCC 390: 2005
(2) SCCD 838:2005(2) AWC 1599 (SC)

## Text

1240
 INDIAN LAW REPORTS ALLAHABAD SERIES
14. Accordingly, the appeal is
allowed and the impugned judgment and
order dated 3.3.2011 is quashed.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.09.2014
BEFORE
THE HON'BLE RAJES KUMAR, J.
THE HON'BLE OM PRAKASH-VII, J.
First Appeal No. 447 of 2014
Smt. Rekha Mishra & Anr.
...Appellants
Versus
Shiv Prasad Srivastava & Ors. Respondents
Counsel for the Appellants:
Sri Sandeep Kumar Srivastava, Sri Pranab
Kr. Ganguly
Counsel for the Respondents:
Sri Anil Kr. Srivastava
C.P.C. Order VII Rule-11-read with Specific
Relief Act-34-Rejection of Plaint-suit for
declaration
without
possession-held-not
maintainable-held
Trail
Court
not
committed any error-Appeal dismissed.
Held: Para-10
We do not find any error in the impugned
order. The relief sought in the plaint has
been referred hereinabove. The admitted
fact is that the appellants were not in
possession of one of the shop on the ground
floor and the other on the first floor of the
house in dispute, while the decree of
declaration was being sought to declare the
appellants as the sole and exclusive owners
of the house no. 117/193/I, block, Navin
Nagar, Kanpur Nagar, without seeking the
relief of possession of those portions of the
house which were not in the possession of
the appellants.
Case Law discussed:
AIR 1993 SC 957; (2002) 7 SCC 559; (2003) 1
SCC 557; (2005) 7 SCC 510; (1993) Suppl. 3 SC
129; (2007) 14 SCC 535; (2013) 3 AWC (SC)
2213; AIR 1996 SC 642; (2005) 5 SCC 390: 2005
(2) SCCD 838:2005(2) AWC 1599 (SC)
(Delivered by Hon'ble Rajes Kumar, J.)
1. Heard Sri P.K. Ganguly, learned
counsel for the appellants and Sri M.D.
Singh Shekhar, learned Senior Advocate,
appearing on behalf of the respondents.
2. This is an Appeal against the order
of the Civil Judge (Senior Division), Kanpur
Nagar, dated 2nd August, 2014 by which the
Suit no. 107/14, filed by the appellants, under
Order VII, Rule 11 of the Code of Civil
Procedure (In short 'CPC'), has been rejected
on the ground that the suit for declaration
without seeking the relief of possession is not
maintainable.
3. The appellants filed the Suit No.
107 of 2014, seeking following reliefs:
"A) A decree for Declaration that the
plaintiffs are the sole and exclusive
owners of the premises No. 117/193, Iblock, Navin Nagar, Kanpur Nagar, fully
detailed and bounded below.
B) A decree for Permanent Injunction
restraining the defendants, their agents
servants and assigns from causing any
interference in the free ingress and egress by
the
plaintiffs
and
from
forcefully
dispossessing the plaintiffs from the suit
accommodation viz ground floor portion,
excluding one room on the front side of
premises no. 117/193, I-block, Navin Nagar,
Kakadeo, Kanpur, both fully detained at the
foot of the plaint, and from taking its illegal
possession till disposal of the suit.
C) Cost of the suit be passed in
favour of the plaintiffs and against the
defendant.
D)Any other relief which this learned
court deems fit and proper in the
3 All]. Smt. Rekha Mishra & Anr. Shiv Prasad Srivastava & Ors.
1241
circumstances of the case may also be
passed in favour of the plaintiffs against
the defendant."
4. It appears that the appellants also
moved an application, under Order 39,
Rule 1 of the CPC, seeking the interim
relief. The court below, after hearing both
the parties, granted interim injunction on
15th April, 2014. It further appears that
the
respondent-defendants
filed
an
application, under Order VII, Rule 11 of
the CPC, with the prayer to reject the
plaint as the suit is barred by the
provisions of Section 34 of the Specific
Relief Act. The respondent-defendants
also filed FAFO No. 1512 of 2014 before
this Court against the order dated 15th
April, 2014, passed by the Trial court,
granting interim injunction. This Court,
by the order dated 20th May, 2014, has
directed the Trial court to dispose of the
application, under Order VII, Rule 11 of
the CPC pursuant to which present
impugned order has been passed by the
Trial court.
5. Learned counsel for the appellants
submitted that in the house in dispute, the
respondent-defendants are in possession
of one room on the ground floor and one
room on the first floor. Rest portion of the
house in dispute is in the possession of the
appellants.
6. There is no dispute about this fact.
The Trial court has rejected the suit on the
ground that in the suit, relief of
declaration, declaring the plaintiffs as the
sole and exclusive owners of premises no.
117/193, I-block, Navin Nagar, Kanpur
Nagar, has been sought, though the
defendants are in possession of one of the
room on the ground floor and one of the
room on the first floor, but no relief has
been sought seeking possession of the
said room on the ground floor and the
other room on the first floor. Therefore,
the suit is barred by Section 34 of the
Specific Relief Act. Reliance has been
placed by the Trial court on the decisions
of the Apex Court in the case of Vinay
Krishna v. Keshav Chandra, reported in
AIR 1993 SC 957 and the case reported in
AIR 2002 SC 1499.
7. Learned counsel for the appellants
submitted that no opportunity has been
given to the appellants to amend the
plaint. If the opportunity would have been
afforded to them, they would have would
have amended the plaint. The reliance is
being placed on the decision of the Apex
Court in the case of Sampath Kumar v.
Ayya Kannu and another, reported in
(2002) 7 SCC 559. He further submitted
that under Order VII, Rule 11 of the CPC,
the application, under Order VII, Rule 1 is
to be decided on the basis of the averments
made in the plaint and not on the basis of
the plea taken in the written statement. To
strengthen his submission, learned counsel
placed reliance on the decision of the Apex
Court in the case of Saleem Bhai and others
v. State of Maharashtra and others, reported
in (2003) 1 SCC 557. The submission is
that Order VII, Rule 11(d) applies only in a
situation where the statement, as made in
the plaint, without any doubt or dispute,
shows that the suit is barred by any law in
force. It does not apply in a case where
disputed questions are involved. Reliance is
being placed on a decision of the Apex
Court in the case of Popat and Kotecha
Property v. State Bank of India Staff
Association, reported in (2005) 7 SCC 510.
8.

Learned
counsel
for
the
respondents submitted that it is apparent
from the plaint that a decree for
1242
 INDIAN LAW REPORTS ALLAHABAD SERIES
declaration to declare the appellants as the
sole and exclusive owners of house no.
117/193, I-block, Navin Nagar, Kanpur
Nagar, has been sought. Admittedly, one
of the shop on the ground floor and on the
first floor are in possession of the
respondents. Therefore, without seeking
the relief for possession of those portions,
which are not in the possession of the
appellants, suit for declaration is barred
by Section 34 of the Specific Relief Act
and proviso to Section 42. To buttress the
submission, Reliance is being placed on
the decision of the Apex Court in the case
of Vinay Krishna v. Keshav Chandra,
reported in (1993) Suppl. 3 SC 129. He
submitted that ample time was available
to the appellants to move the amendment
application to amend the relief, if they so
desired,
but
no
such
amendment
application has been moved. Therefore,
the court below proceeded to decide the
suit on the basis of the admitted facts and
the averments made in the plaint. It is
submitted by Sri Shekhar that the
appellants are not remedy-less, even after
dismissal of the present suit, it is open to
them to file a fresh suit as provided under
Order 7, Rule 13 of the CPC.
9. We have considered rival
submission and perused the record.
10. We do not find any error in the
impugned order. The relief sought in the
plaint has been referred hereinabove. The
admitted fact is that the appellants were
not in possession of one of the shop on
the ground floor and the other on the first
floor of the house in dispute, while the
decree of declaration was being sought to
declare the appellants as the sole and
exclusive owners of the house no.
117/193/I, block, Navin Nagar, Kanpur
Nagar, without seeking the relief of
possession of those portions of the house
which were not in the possession of the
appellants.
11. Section 34 of the Specific Relief
Act reads as follows:
34. Discretion of court as to declaration
of status or 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 little
adverse to the title of someone who is not
in existence, and for whom, if in existence,
he would be a trustee."
12. Section 34 is pari materia to
Section 42 of the Specific Relief Act,
1877 before the amendment.
13. In the case of Vinay Krishna v.
Keshav Chandra (Supra), the Apex Court
categorically held that if the plaintiff had
been in possession, then a suit of mere
declaration would be maintainable. The
Apex Court in paragraph 14 of the said
judgment held as follows:
"14- From the reading of the plaint it is
clear that the specific case of the plaintiff
Jamuna Kunwar was that she was in
exclusive possession of property bearing No.
3 All]. Smt. Rekha Mishra & Anr. Shiv Prasad Srivastava & Ors.
1243
52 as well. She thought that it was not
necessary to seek the additional relief of
possession. However, in view of the written
statement of both the first and the second
defendant raising the plea of bar under
Section 42, the plaintiff ought to have
amended and prayed for the relief of
possession also. Inasmuch as the plaintiff did
not choose to do so she took a risk. It is also
now evident that she was not in exclusive
possession
because
admittedly
Keshav
Chandra and Jagdish Chandra were in
possession. There was also other tenants in
occupation. In such an event the relief of
possession ought to have been asked for. The
failure to do so undoubtedly bars the
discretion of the Court in granting the decree
for declaration."
14. In the case of Mehar Chandra
Das v. Lal Babu Siddiqui, reported in
(2007) 14 SCC 535, the apex Court held
as follows:
"11.
The
appellant
defendant,
therefore, had been in possession of the
suit property. In that view of the matter
the respondent-plaintiffs could seek for
further relief other than for a decree of
mere declaration of title.
12. The High Court, in our opinion,
committed a manifest error in not relying the
decision of this Court in Vinay Krishna. The
said decision categorically lays down the law
that if the plaintiff had been in possession,
then a suit for mere declaration would be
maintainable; the logical corollary whereof
would be that if the plaintiff is not in
possession, a suit for mere declaration would
not be maintainable."
15. In a recent case, reported in
(2013) 3 AWC (SC) 2213, Venkata Raja
and others v. Vidyane Doureradjaperumal
(D) through Lrs and others, the Apex
Court held as follows:
"17. A mere declaratory decree remains
non-executable in most cases generally.
However, there is no prohibition upon a party
from seeking an amendment in the plaint to
include the unsought relief, provided that it is
saved by limitation. However, it is obligatory
on the part of the defendants to raise the issue
at the earliest. (Vide : Prakash Chand
Khurana etc. v. Harnam Singh and others,
AIR 1973 SC 2065 and State of M.P. v.
Mangilal Sharma, AIR 1998 SC 743).
In Muni Lal v. Oriental Fire and
General Insurance Co. Ltd. And another,
AIR 1996 SC 642, this Court dealt with
declaratory decree, and observed that "mere
declaration without consequential relief dos
not provide the needed relief in the suit; it
would be for the plaintiff to seek both reliefs.
The omission thereof mandates the Court to
refuse the grant of declaratory relief."
In Shakuntla Devi v. Kamla and others,
(2005) 5 SCC 390 : 2005 (2) SCCD 838 :
2005 (2) AWC 1599 (SC), this Court while
dealing with the issue held:
"..............a
declaratory
decree
simpliciter does not attain finality if it has
to be used for obtaining any future decree
like possession. In such cases, if suit for
possession
based
on
an
earlier
declaratory decree is filed, it is open to
the defendant to establish that the
declaratory decree on which the suit is
based is not a lawful decree."
18. In view of the above, it is evident
that the suit filed by the appellants/plaintiffs
was not maintainable, as they did not claim
consequential relief. The respondent nos. 3
and 10 being admittedly in possession of the
1244
 INDIAN LAW REPORTS ALLAHABAD SERIES
suit property, the appellants/plaintiffs had to
necessarily claim the consequential relief of
possession of the property . Such a plea was
taken by the respondents/defendants while
filing
the
written
statement.
The
appellants/plaintiffs did not make any
attempt to amend the plaint at this stage, or
even at a later stage. The declaration sought
by the appellants/plaintiffs was not in the
nature of a relief. A worshiper may seek that
a decree between the two parties is not
binding on the deity, as mere declaration can
protect the interest of the deity. The relief
sought therein was for the benefit of the
appellants/plaintiffs themselves.
As a consequence, the appeals lack
merit and, are accordingly dismissed.
There is no order as to costs."
16. In view of the law laid down by
the Apex Court, we are of the view that
the Trial court has not committed any
error in rejecting the suit as barred by
Section 34 of the Specific Relief Act.
17. The decisions cited by the learned
counsel
for
the
appellants,
referred
hereinabove, are not applicable to the present
case and are of no help to the appellants. The
appellants are not remedy-less. It is open to
them to file a fresh suit, as provided under
Order VII, Rule 11 of the CPC.
18. In view of what has been
discussed above, in the result, the Appeal,
being devoid of merits, fails and is
dismissed.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.09.2014
BEFORE
THE HON'BLE RAKESH TIWARI, J.
THE HON'BLE ASHOK PAL SINGH, J.
Special Appeal No. 497 of 2013
Seema Srivastava
...Appellant
Versus
The State of U.P. & Ors.
...Respondents
Counsel for the Appellant:
Sri Prabhakar Awasthi
Counsel for the Respondents:
C.S.C. Sri P.D. Tripathi
Constitution of India, Art.-226-Cancellation
of appointment-part time teacher (Art &
Music)-honorarium
payable
subject
to
verification of educational testimonialsadmittedly appellant/petitioner-not possess
TET
certificate-contention
that
no
requirement of TET-under Basic Educations
(teacher)
Service
Rules
1981-held-in
absence
of
requisite
qualification-once
participated in pursuance of advertisementjoined with open eye-can not be allowed to
question the validity of such requirement of
advertisement-Single Judge rightly refused
to interfere-appeal dismissed.
Held: Para-12
We have considered the rival contentions
of learned counsel for the parties and in
our opinion, the appellant-petitioner on
one hand, cannot take advantage of
advertisement for appointment and on
the
other
hand,
challenge
the
advertisement. After verification of her
educational testimonials she has been
found to be unqualified for the post.
Hence, she cannot now turn around now
and challenge the advertisement as well
as the order of termination passed on
the ground that she was ineligible for
appointment for the post in question. It
is always open to the college to invite
applications from the candidates who are
eligible and having better qualifications
than
the
minimum
qualifications
prescribed in the statute itself. The
petitioner
was
found
ineligible
for
appointment on the post in question,
hence her appointment has rightly been
cancelled by the authority.