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Anirudha Padhan Vs. Chhai Padhan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 208 of 1977
Judge
Reported inAIR1981Ori74; 51(1981)CLT155
ActsSpecific Relief Act, 1963 - Sections 34
AppellantAnirudha Padhan
RespondentChhai Padhan and ors.
Appellant AdvocateG. Rath and ;N.C. Panigrahi, Advs.
Respondent AdvocateS.C. Mohapatra, Adv.
DispositionAppeal dismissed
Excerpt:
.....assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 3 was not the adopted son of khadia padhan and that he failed to establish his plea of adverse possession......is anirudha (defendant no. 3). the plaintiffs' case was that they were in joint possession of the suit lands along with defendant no. 2 tillthe year 1962 when a dispute arose between the parties as defendant no. 3 falsely claimed himself to be the adopted son of khadia padhan. a proceeding under section145, cr. p. c. was started and it terminated on 4-1-1965, in favour of defendant no. 3. since then the defendant no. 3 possessed the suit lands after evicting the plaintiffs therefrom. hence the plaintiffs filed the suit on 26-7-1965 for the aforesaid reliefs. 3. defendant no. 3 was the only contestant in the suit. his defence was that he had been duly adopted as a son by khadia padban in the year 1943. alternatively he claimed to have acquired title to the suit lands by adverse.....
Judgment:

P.K. Mohanti, J.

1. The second appeal is by defendant No. 3 against a decree of affirmance. The suit was for partition on adjudication that the three plaintiffs and defendants 1 and 2 are entitled to one-fifth share each and for delivery of possession of the properties allotted to each.

2. The lands in suit originally belonged to one Khadia Padhan who died in 1958 leaving behind him five daughters named Apurba, Chhai, Subhadra, Sundarmani and Bhama. Apurba is dead and her son is Ghasia (defendant No. 1). Chhai, Sundarmani and Bhama are plaintiffs 1, 2 and 3 respectively. Subhadra is defendant No. 2 and her son is Anirudha (defendant No. 3). The plaintiffs' case was that they were in joint possession of the suit lands along with defendant No. 2 tillthe year 1962 when a dispute arose between the parties as defendant No. 3 falsely claimed himself to be the adopted son of Khadia Padhan. A proceeding under Section145, Cr. P. C. was started and it terminated on 4-1-1965, in favour of defendant No. 3. Since then the defendant No. 3 possessed the suit lands after evicting the plaintiffs therefrom. Hence the plaintiffs filed the suit on 26-7-1965 for the aforesaid reliefs.

3. Defendant No. 3 was the only contestant in the suit. His defence was that he had been duly adopted as a son by Khadia Padban in the year 1943. Alternatively he claimed to have acquired title to the suit lands by adverse possession.

4. The Court of first instance decreed the suit on the findings that defendant No. 3 was not the adopted son of Khadia Padhan and that he failed to establish his plea of adverse possession.

Defendant No. 3 went up in appeal. The Appellate Court reversed the findings of the trial Court and held that defendant No. 3 was the duly adopted son of Khadia Padhan. Accordingly it directed partition of the suit lands declaring one-twelfth share of each of the plaintiffs 1 to 3, defendant No. 1 and defendant No. 2 and seven-twelfths share of defendant No. 3.

The plaintiffs preferred second appeal No. 155/68 which was allowed by this Court and the suit was remanded for fresh disposal with directions to the Trial Court to frame an additional issue regarding custom of adoption of a daugher's son and to allow the parties to adduce additional evidence on that issue. A further direction was also issued to the Trial Court to decide whether the lands in suit were the self-acquired properties of Khadia Padhan.

5. After remand the Trial Court came to hold that the suit lands were the separate properties of Khadia Padhan and that defendant No. 3 was not the legally adopted son of Khadia Padhan. It also negatived the plea of adverse possession.

On appeal, the appellate Court maintained the findings of the trial Court.

The only point that has been seriously pressed in this Court is that the suit for a mere declaration is barred by Section 34 of the Specific Relief Act as the plaintiffs could have claimed further relief for recovery of possession.

6. Section 34 of the Specific Relief Act reads as follows:--

'Section 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'.

7. The proviso to the section forbids a suit for a mere declaration without further relief. The object of the proviso is to avoid multiplicity of suits and to prevent a person from getting a mere declaration of his rights in one suit and to resort to another for another remedy which is already available to him. Another object of the proviso is to protect the revenue from having a suit brought without the proper ad valorem Court-fee having been paid Court-fee for a mere declaration is a nominal fee whereas if consequential relief is asked for, it would be ad valorem.

8. From a reading of the proviso along with the main section it is clear that the further relief contemplated in the proviso is a relief which was available to the plaintiffs at the time of institution of the suit and which he omitted to ask for. The further relief must be a relief in relation to the legal right as to property which the plaintiff is entitled to and it must also be a relief appropriate to and necessarily consequent on the right asserted.

9. In the present case, the plaintiffs have not claimed a bare declaration of their shares. They have claimed a further relief by way of partition and delivery of possession. They have paid ad valorem Court-fee on the plaint.

10. No doubt the appellant is in possession of the suit lands. He claimed title to the suit lands as an adopted son of Khadia Padhan. In the alternative he claimed acquisition of title by adverse possession. Both the claims have been negatived by the Court below. A decree for partition and separate possession has been passed in favour of the plaintiffs. The matter in controversy between the parties could not be settled finally until the joint property was partitioned. In my opinion the plaintiffs were not under any necessity of claiming any further relief in the suit, I am, therefore, unable to accede to the submission that the suit is barred by Section 34 of the Specific Relief Act.

11. The appeal fails and is dismissed with costs.


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