- 1 - NC: 2025:KHC:9122 RSA No. 780 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 780 OF 2016 (DEC/INJ) BETWEEN: SRI K ZAFRULLA S/O LATE ABDUL JABBAR AGED ABOUT 67 YEARS R/AT TAYALUR VILLAGE MULBAGAL TALUK KOLAR DISTRICT NOW R/AT NO 12, M R PALYA JAYACHAMARAJENDRA NAGAR, BANGALORE – 563 131 …APPELLANT (BY SRI. V. VINOD REDDY, ADVOCATE) AND: 1. ILYA AHMED GHOURI S/O LATE MOHAMMED MOHIDDIN GHOURI AGED ABOUT 54 YEARS R/OF TAYALUR VILLAGE, POST & HOBLI MULBAGAL TALUK KOLAR DISTRICT – 563 131 2. ABDUL SALAM S/O LATE GULAM DASTAGIR SAB AGED ABOUT 77 YEARS R/OF TAYALUR VILLAGE, POST & HOBLI MULBAGAL TALUK KOLAR DISTRICT – 563 131 Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:9122 RSA No. 780 of 2016 3. ABDUL BASITH DEAD BY LEGAL REPRESENTATIVES SIGHBAT, S/O LATE ADBIL BASITH AGED ABOUT 40 YEARS 4. SADATH S/O LATE ABDUL BASITH AGED ABOUT 36 YEARS RESPONDENTS 3 AND 4 ARE R/AT ARABI COLLEGE, NEAR NOBLE SCHOOL IRISHAD NAGAR, BANGALORE – 560 043 5. ABDUL WAZID AGED ABOUT 67 YEARS S/O LATE GULAM DASTAGIR SAB, R/OF TAYALUR VILLAGE, POST & HOBLI MULBAGAL TALUK KOLAR DISTRICT – 563 131 …RESPONDENTS (BY SRI. IRSHAD AHMED K, ADVOCATE FOR R1 NOTICE TO R2 TO R5 DISPENSED WITH VIDE ORDER DATED 06.07.2023) THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 09.02.2016 PASSED IN R.A.NO.49/2012 ON THE FILE OF II ADDL. SENIOR CIVIL JUDGE & J.M.F.C., KOLAR, PARTLY ALLOWING THE APPEAL AND SET ASIDE THE JUDGMENT AND DECREE DATED 13.02.2012 PASSED IN O.S.NO.337/2009 ON THE FILE THE ADDL. CIVIL JUDGE & J.M.F.C., MULBAGAL. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2025:KHC:9122 RSA No. 780 of 2016 CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellant, challenging the judgment and decree dated 9.02.2016, passed in R.A.No.49/2012 by the learned II Additional Senior Civil Judge, Kolar (Itenerating at Mulbagal) setting aside the judgment and decree dated 13.02.2012 passed in O.S.No.337/2009, by the learned Additional Senior Civil Judge and JMFC, Mulbagal, regarding the declaratory relief. 2. For convenience, the parties are referred to, based on their rankings before the trial Court. The appellant was the defendant, respondent No.1 was the plaintiff, and respondent Nos.2 to 5 were the defendants. 3. Brief facts leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendants for declaration of the title over the suit schedule property, and - 4 - NC: 2025:KHC:9122 RSA No. 780 of 2016 to declare the registered sale deed dated 03.08.1985 executed in favour of defendant No.1 by defendants No.2 to 4 as null and void, and not binding on him and for permanent injunction restraining defendant No.1 from interfering with the peaceful possession, and enjoyment of the suit schedule property. 3.1. It is the case of the plaintiff that, originally, the suit schedule property was owned by his great grandfather, Ghori Mohiddin Sab, who purchased the same from his vendor, Syed Mustafa Sab, under a registered sale deed dated 08.08.1922. His grandfather exercised his right over the suit schedule property as an absolute owner. After the demise of Ghori Mohiddin Sab, his son Ghouri Mohammed Ali Sab was enjoying the suit schedule property, and the khata was transferred in his name. After his death, the plaintiff’s father and the plaintiff were in possession of the suit property and after the death of plaintiff’s father, the plaintiff is enjoying the suit schedule property as the absolute owner. It is contended that - 5 - NC: 2025:KHC:9122 RSA No. 780 of 2016 defendant No.1 has illegally purchased the suit schedule property from defendants No.2 to 4 by creating documents. His grandfather Ghori Mohammed Ali Sab purchased the land bearing Sy.Nos.36/1 and 37/2 measuring 0.13 guntas, which includes a well from Gulam Dastgir Sab in 1940. The Dastagir Sab executed the sale deed regarding Sy.No.37/2, but there is no such survey number 37 in Kottapalli village, measuring 16 guntas existing in the said village. The vendor, Gulam Dastgir Sab was the owner of the property bearing Sy.No.35, measuring 13 guntas, but in the sale deed, it is wrongly mentioned as Sy.No.37/2 instead of Sy.No.35, but the boundaries mentioned in the registered sale deed tallies to the land bearing Sy.No.35. His grandfather, and father did not know about the said fact who sold the property bearing Sy.No.37/2 instead of Sy.No.35 measuring 13 guntas, to one Gulam Dastgir Sab, who was earlier owner. The purchaser challenged the khata of the property bearing Sy.No.37 instead of Sy.No.35 in his name. The Tahsildar, passed the order stating that the survey number - 6 - NC: 2025:KHC:9122 RSA No. 780 of 2016 is wrongly mentioned as Sy.No.37/2 in the sale deed, but Sy.No.37/2 is not yet divided. The Tahsildar has passed the order to change the khata. The khata was not changed in the name of his grandfather. Defendants No.2 to 4, taking undue advantage of the same, got changed khata illegally in their name and then sold the same in favour of defendant No.1 on 03.08.1985 and said transfer is not binding. It is contended that, defendant No.1 does not have any right, title or interest over the suit schedule property. He is trying to put stone slabs around the suit schedule property. The plaintiff has resisted the illegal acts of defendant No.1 with great difficulty, and he has also preferred an appeal before the Assistant Commissioner, Kolar, which is pending. Hence, a cause of action arose for the plaintiff to file a suit for declaration of title and permanent injunction. Accordingly, prays to decree the suit. 3.2. The trial Court issued summons to the defendants. Despite service of summons, the defendant - 7 - NC: 2025:KHC:9122 RSA No. 780 of 2016 Nos.2 to 4 remained unrepresented. Hence, they were placed exparte. 3.3. Defendant No.1 filed a written statement denying the entire allegations made in the plaint. It is contended that the suit schedule property originally belonged to Gulam Dastgir Sab, who was enjoying the property for more than 4 decades. Defendants No.2 to 4 are the sons of Ghori Dastgir Sab, and the suit schedule property was acquired by their father on 24.11.1964 under a settlement deed, by taking their shares, including the suit schedule property. Defendant Nos.2 to 4 became the absolute owner of the suit schedule property, and they purchased the share of Abdul Basith under a registered sale deed dated 03.08.1985. It is contended that, defendant Nos.2 to 4 have sold the suit schedule property and other properties in his favour under the registered sale deed. Defendant No.1 is in possession of the suit schedule property as an absolute owner, since the date of purchase. The plaintiff is not in possession and his father - 8 - NC: 2025:KHC:9122 RSA No. 780 of 2016 was not in possession, and enjoyment of the suit schedule property. There is no cause of action to file the suit against the defendants. A cause of action shown in the plaint is false and imaginary. Hence, prays to dismiss the suit. 3.4. The Trial Court, based on the above said pleadings, framed the following issues: (1) Whether the plaintiff proves that he is the absolute owner of the suit schedule property? (2) Whether the plaintiff proves that he is in actual possession of the suit schedule property ? (3) Whether the plaintiff proves that the sale deed dated 03.08.1985 executed by defendant Nos.2 and 4 in favour of defendant No.1 in respect of suit schedule property as null and void? (4) Whether the plaintiff proves the alleged interference by defendant No.1? (5) Whether the plaintiff is entitled for any relief as claimed in the plaint? (6) What decree/order? 3.5. The plaintiff, to substantiate his case, examined himself as PW-1, examined two witnesses as PWs-2 & 3, - 9 - NC: 2025:KHC:9122 RSA No. 780 of 2016 and marked 16 documents as Exs.P1 to P16. On the other hand, defendant No.1 was examined as DW.1, examined one witness as DW.2 and marked 51 documents as Exs.D1 to 51. 3.6. The trial Court, after recording the evidence, hearing on both sides, and on assessing the verbal and documentary evidence of the parties, answered issue Nos.1 to 5 in the negative and issue No.6 as per the final order consequently, dismissed the suit with costs vide judgment dated 13.02.2012. The plaintiff, aggrieved by the judgment and decree passed in O.S.No.337/2009 dated 13.02.2012, preferred an appeal in R.A.No.49/2012. 3.7. The First Appellate Court, after hearing the parties, has framed the following points for consideration: (1) Whether the judgment and decree passed by the learned Additional Civil Judge and JMFC, Mulbagal, in O.S.No.337/2009 dated 13.02.2012 is perverse, erroneous, opposed to law which needs interference of this Court? (2) What order? - 10 - NC: 2025:KHC:9122 RSA No. 780 of 2016 3.8. The First Appellate Court, after hearing the learned counsel for the parties, and on re-assessing the verbal and documentary evidence, answered point No.1 partly in the affirmative, and point No.2 as per the final order. The First Appellate Court partly allowed the appeal vide judgment dated 09.02.2016. The judgment and decree passed by the trial Court regarding the relief of permanent injunction was confirmed, and the judgment and decree of the trial Court regarding the declaratory relief was set aside, and it was declared that the plaintiff is the absolute owner of the suit schedule property. The registered sale deed dated 03.08.1985 regarding the suit schedule property bearing Sy.No.37 measuring 16 guntas was declared null and void. The plaintiff is at liberty to seek recovery of possession of the suit schedule property from defendant No.1. The defendant, aggrieved by the judgment and decree passed in R.A.No.49/2012 on the file of II Additional Senior Civil Judge and JMFC, Kolar, has filed this Regular Second Appeal. - 11 - NC: 2025:KHC:9122 RSA No. 780 of 2016 4. Heard the arguments of the learned counsel for the defendants, and the plaintiff. 5. Learned counsel for the defendants submits that the plaintiff has filed a suit for declaration of title and permanent injunction. The plaintiff is not in possession of the suit schedule property. He submits that the suit for declaration of the title without seeking the further relief of possession is not maintainable as per provisions of Section 34 of the Specific Relief Act. Further, to buttress his arguments, he has placed reliance on the judgment of the Hon’ble Apex Court in the case of VASANTHA (DEAD) THR. L.R. VS. RAJALAKSHMI @ RAJAM (DEAD) THR. LRS. reported in 2024 (5) SCC 282, CIVIL APPEAL NO.3854/2014. Hence, prays to allow the appeal. 6. Per contra, the learned counsel for the plaintiff submits that the plaintiff is the absolute owner of the suit schedule property. He acquired the suit schedule property under the registered sale deed. The plaintiff is in possession and enjoyment of the suit schedule property. - 12 - NC: 2025:KHC:9122 RSA No. 780 of 2016 The first Appellate Court, considering the evidence of PWs.1 to 3 and the registered sale deed dated 06.11.1940, has rightly declared the plaintiff as a owner and reserved the liberty to seek for recovery of possession of the suit schedule property from defendant No.1. The judgment and decree passed by the first Appellate Court is just and proper, and do not call for any interference. Hence, on these grounds, prays to dismiss the appeal. 7. This Court, on 06.11.2019, admitted the appeal, to consider the following substantial question of law : “Whether the appellate Court could have granted declaratory relief of title and that the sale deed dated 03.08.1985 in favour of the respondent No.1 is null and void despite concurring with the trial Court’s judgment that the respondent No.1 is not in possession of the property in view of the provisions of Section 34 of Specific Relief Act, 1963”? 8. Perused the records, and considered the submissions of learned counsel for the parties. - 13 - NC: 2025:KHC:9122 RSA No. 780 of 2016 9. The plaintiff, to prove his case, examined himself as PW.1. He deposed that the suit schedule property originally belonged to his great grandfather i.e., Ghori Mohiddin Sab. He had purchased the said property in Sy.No.37 measuring 00.16 guntas situated at Kottapalli Village, Tayalur Hobli, Mulbagal Taluk, from its vendor by the name Syed Mustafa Sab in 1922 under the registered sale deed dated 08.08.1922. During his lifetime, he exercised his rights over the same as an absolute owner. After the demise of Ghori Mohiddin Sab, his son Ghori Mohammed Ali Sab was in possession and enjoyment of the suit schedule property. The khata was transferred under the name Ghori Mohammed Ali Sab. After the death of Ghori Mohammed Ali Sab, the father of the plaintiff, and the plaintiff came into possession and enjoyment of the suit schedule property. He has deposed that the defendant No.1 purchased the suit schedule property illegally from defendants No.2 to 4 and created the documents by colluding with the revenue officials. During the lifetime of the grandfather of the plaintiff, Ghori Mohammed Ali Sab, - 14 - NC: 2025:KHC:9122 RSA No. 780 of 2016 purchased the wetland bearing Sy.No.36/1 and another Sy.No.37/2 measuring 00.13 guntas including well from one Gulam Dastagir Sab in 1940, and there was no survey number 37 in Kottapalli village. Gulam Dastagir Sab owned the land bearing Sy.No.36, measuring 13 guntas situated at Kottapalli village, but in the sale deed, it was mentioned as Sy.No.37/2 instead of Sy.No.35. The boundaries mentioned as Sy.No.37/2 and Sy.No.35 tallies. He deposed that during 1942, again, his grandfather Ghori Mohammed Ali Sab did not show the said fact, i.e., Sy.No.37/2 instead of Sy.No.35, sold the property to one Gulam Dastagir Sab, who is none other than the previous vendor of the said property. After purchasing Sy.No.35 (37/2) measuring 00.13 guntas of Kottapalli village, he changed the khata of Sy.No.37 instead of Sy.No.35 in his name. He deposed that, by knowing the wrongly mentioned Sy.No.37/2 instead of Sy.No.35, his grandfather filed a case in Dispute No.1/1968-69 before the Tahasildar, Mulbagal against defendant Nos.2 to 4. The Tahasildar has passed the order rectifying the survey - 15 - NC: 2025:KHC:9122 RSA No. 780 of 2016 numbers, and Khata was not changed to the plaintiff’s name. Defendants No.2 to 4 got changed the khata of the suit schedule property in their favour by colluding with the revenue officials. The change of khata was illegal, improper and against natural justice. 10. Defendant No.1 has no right, title or interest over the suit schedule property; he is trying to survey the suit schedule property by putting the stone slabs around the suit property. In support of his contention, he has produced the documents. Ex.P1 is the Genealogical tree, Ex.P2 is the registered sale deed dated 24.06.1922, executed by Shak Mustaf in favour of Ghori Mohiddin Sab. Ex.P3 is the certified copy of the sale deed dated 03.08.1985 executed by defendants No.2 to 4 in favour of defendant No.1, Ex.P4 is the order passed by the Tahasildar, Ex.P5 is the index of lands, Ex.P6 is the copy of the record of rights, Ex.P7 is the application, Ex.P8 is the mahazar, Ex.P9 is the RTC extract, Ex.P10 is the photographs, Ex.P10(a) are negatives, Ex.P11 is the - 16 - NC: 2025:KHC:9122 RSA No. 780 of 2016 certified copy of the registered sale deed dated 06.11.1940 executed by Dastagiri Sab in favour of the grandfather of the plaintiff. Ex.P12 is the certified copy of the registered sale deed dated 23.12.1942 executed by the plaintiff’s grandfather in favour of Dastagiri Sab. Ex.P13 is the RTC extract, Ex.P14 is the letter, Ex.P15 is the tax paid receipt, and Ex.P16 is the order passed by the Assistant Commissioner, Kolar. 11. During the course of the cross-examination of PW.1, it was suggested that, the plaintiff is not the absolute owner of the suit schedule property, and not in possession of the suit schedule property, it is suggested that the defendants are the owners and that a partition had been effected between defendants Nos.2 to 4, and based on the partition, the khata was effected in their names. The said suggestion was denied by PW.1, and it is also suggested that Ex.P2, i.e., registered sale deed executed in 1922. The survey number is shown as 37 measuring 16 guntas, and the said sale deed does not - 17 - NC: 2025:KHC:9122 RSA No. 780 of 2016 disclose that the great grandfather of the plaintiff had purchased Sy.No.35 and Ex.P11 registered sale deed dated 06.11.1940 executed in favour of grandfather of the plaintiff by Dastagiri Sab was in respect of Sy.No.36/1. The said suggestion was denied by PW.1. 12. The plaintiff examined one Javeed pasha as PW.2, who deposed that he knows the plaintiff and defendants and the suit property belongs to the great grandfather of the plaintiff, and thereafter it belonged to the grandfather of the plaintiff, and the plaintiff is cultivating the suit schedule property. The land of PW.2 is adjacent to the suit schedule property, and the suit schedule property is Sy.No.37 measuring 0.16 guntas. The said land is situated within the jurisdiction of Tayalur village, Mulbagal Taluk. 13. During the course of cross-examination, he stated that he had seen the suit schedule property, which bears survey number 37, and he did not know the boundaries of the suit schedule property. He has deposed - 18 - NC: 2025:KHC:9122 RSA No. 780 of 2016 that as his land is adjacent to the suit land; he knows the survey number of the suit land. He deposed that, he is aware of the survey done on suit property. The plaintiff also examined Habeeulla as PW.3. He has deposed that the plaintiff is in possession of the suit schedule property. 14. On the other hand, defendant No.1 was examined as DW.1. He reiterated the written statement averments in the examination-in-chief and deposed that Gulam Dastagiri Sab was in possession and enjoyment of the property for more than 4 decades without any interference. He deposed that defendants No.2 to 4, who are the sons of Gulam Dastagiri Sab by, obtaining their share in the family partition that has taken place in the suit schedule property and the other properties acquired under a settlement deed dated 24.11.1964, and became the absolute owner of the suit schedule property. Later on, defendants No.2 to 4 purchased the share of Abdul Basheer under a registered sale deed dated 03.08.1985. Based on the settlement deed, and the sale deed, - 19 - NC: 2025:KHC:9122 RSA No. 780 of 2016 defendants No.2 to 4 became the absolute owners of the suit schedule property along with other properties. They executed a registered sale deed dated 03.08.1985 regarding the suit schedule property in favour of defendant No.1, and defendant No.1 was put in possession of the properties since the date of purchase, the defendant No.1 is in possession of the suit property. The plaintiff based on the order passed by the Tahasildar, Mulbagal created a false story, to grab the suit schedule property. He has deposed that defendant No.1 is the absolute owner in possession of the suit schedule property, and to prove the defence of the defendants, defendant No.1 has produced Ex.D1 Settlement deed, which discloses that a partition was effected between defendant Nos.2 to 4 and in the said partition, the suit schedule properties and other properties were fell to their respective shares. Ex.D2 is the additional settlement deed dated 30.12.1964 executed amongst the defendant Nos.2 to 4. Ex.D.3 is the partition deed dated 14.10.1976, Ex.D4 is the registered sale deed dated 03.08.1985 executed in favour of A.S.Abdul Salam, - 20 - NC: 2025:KHC:9122 RSA No. 780 of 2016 Ex.D5 is the registered sale deed dated 03.08.1985 executed in favour of K.Japarulla, Exs.D6 to 8 are the Mutation Register extracts, Exs.D9 to 38 are the RTC extracts, Ex.D39 is the sketch, Exs.D40 to 42 are the patta receipt books, and Ex.D43 to 51 are the tax paid receipts. 15. Further, the defendant also examined one witness as, DW.2, who has deposed that defendant No.1 is in possession and enjoyment of the suit schedule property. From the entire records, it discloses that the plaintiff’s great-grandfather, Ghori Mohiddin Sab, had purchased the land under the registered sale deed dated 08.08.1922 from one Syed Mustafa Sab of Tayalur village. After the demise of the plaintiff’s great grandfather, the property was transferred to the name of the plaintiff’s father, and Khata was transferred in his name. During the lifetime of the grandfather of the plaintiff, Ghori Mohammed Ali Sab, purchased the land bearing Sy.No.36/1, and 37/2, including the well from Gulam Dastagiri Sab. - 21 - NC: 2025:KHC:9122 RSA No. 780 of 2016 16. Though in the registered sale deed, the survey number has been shown as 37 instead of 35, neither the plaintiff nor his ancestors made any attempts to rectify the mistake. Instead of rectifying the survey number in the registered sale deed, the plaintiff filed the instant suit. The issue in this case is, whether the suit property is Sy.No.37 or Sy.No.35 be determined by the Court? 17. From the perusal of Ex.P11, the registered sale deed executed in favour of the great grandfather of the plaintiff regarding the land in Sy.No.37/2 as alleged by the plaintiff or regarding the Sy.No.35 as claimed by the plaintiff, there is a mistake crept in the sale deed as per Ex.P11. The survey number is shown as Sy.No.37/2 measuring 13 guntas instead of mentioning it at Sy.No.35 measuring 13 guntas. The defendant nowhere in his pleadings or evidence denied the execution of the sale deed as per Ex.P2 in favour of the great grandfather of the plaintiff. Ex.P2 relates to Sy.No.37, measuring 16 guntas. - 22 - NC: 2025:KHC:9122 RSA No. 780 of 2016 18. From the perusal of Exs.P11 and 12, there is a mistake in the survey number while executing a registered sale deed in favour of the great grandfather of the plaintiff. The said mistake was continued in the subsequent document. Neither the ancestors of the plaintiff nor the plaintiff has taken any steps to rectify the error crept in the sale deed or filed a suit for declaration of title regarding the suit property. After the lapse of 70 years, the plaintiff has come up with the present suit for declaration of title over the property. 19. The trial court, after recording the entire evidence on record, has held that the plaintiff has failed to prove that he is the absolute owner of the suit schedule property, and in possession of the suit schedule property and the sale deed executed by defendants No.2 and 4 in favour of defendant No.1 dated 03.08.1985 regarding the suit schedule property is null and void and dismissed the suit of the plaintiff. The first appellate court, on reassessing the entire evidence on record, has recorded a - 23 - NC: 2025:KHC:9122 RSA No. 780 of 2016 finding that the plaintiff and his ancestors are not parties to the title deeds, then Exs.D9 to 38, the RTC extracts are not helpful to defendant No.1 to prove his possession over the suit schedule property, since the plaintiff and his ancestors have not delivered the possession of the suit schedule property through a valid document. The first appellate court has failed to consider the recitals of the sale deed, which discloses that the possession of the suit schedule property was delivered to the vendee. Further, the plaintiff, to establish his possession over the suit schedule property, has not produced any documents. The plaintiff examined two witnesses as PW.2 and PW.3. The First Appellate Court, considering the evidence of PW.2 and DW.2 held that the plaintiff is not in possession of the suit schedule property. 20. Further, PW.2, in the cross examination, has categorically admitted that defendant No.1 is enjoying the property situated at the western side of his property, and he has also stated that the property enjoyed by defendant - 24 - NC: 2025:KHC:9122 RSA No. 780 of 2016 No.1 is bounded by east, the land of Appoji, and now the land of Asif, west by Gramtana, north by land of Asif and south by Oni and dastagiri Sab’s land. The property situated within the said boundaries is the property bearing Sy.No.37, and he also admitted that in 2009, the defendant dug a trench in the suit schedule property and planted mango plants, due to which the plaintiff has filed this suit. 21. From the perusal of the evidence of PW.2, who has admitted that defendant No.1 is in possession of the suit schedule property, it is clear that, the plaintiff has failed to prove his possession over the suit schedule property. Admittedly, the plaintiff has been unable to prove the possession over the suit schedule property as per Section 34 of the Specific Relief Act, 1963, which 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 - 25 - NC: 2025:KHC:9122 RSA No. 780 of 2016 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. 22. The provision restricts the application of such discretion in terms of declaration of right or status as a matter of discretion. However, the proviso restricts the application of such discretion in terms that it is not to be exercised when the complainant seeks only the declaration of title when he can seek further relief. The Hon’ble Apex Court in the case of VASANTHA (DEAD) THR. L.R. (referred supra) held in para Nos.29 to 31 reads as follows:- 29. This position has been followed by this Court in Union of India v. Ibrahim Uddin (2-Judge Bench)30, elaborated the position of a suit filed without the consequential relief. 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. 56. In Ram Saran v. Ganga Devi [(1973) 2 SCC 60] this Court had categorically held that the suit seeking - 26 - NC: 2025:KHC:9122 RSA No. 780 of 2016 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. In Vinay Krishna v. Keshav Chandra [1993 Supp (3) SCC 129] this Court dealt with a similar issue where the plaintiff was not in exclusive possession of property and had filed a suit seeking declaration of title of ownership. Similar view has been reiterated observing that the suit was not maintainable, if barred by the proviso to Section 34 of the Specific Relief Act. (See also Gian Kaur v. Raghubir Singh [(2011) 4 SCC 567) 57. In view of the above, the law becomes crystal clear that it is not permissible to claim the relief of declaration without seeking consequential relief. 58. In the instant case, the suit for declaration of title of ownership had been filed, though Respondent 1-plaintiff was admittedly not in possession of the suit property. Thus, the suit was barred by the provisions of Section 34 of the Specific Relief Act and, therefore, ought to have been dismissed solely on this ground. The High Court though framed a substantial question on this point but for unknown reasons did not consider it proper to decide the same.” 30. In Venkataraja and Ors. v. Vidyane Doureradjaperumal (Dead) thr. LRs (2-Judge Bench)31, the purpose behind Section 34 was elucidated by this Court. It was observed that the purpose behind the inclusion of the proviso is to prevent multiplicity of proceedings. It was further expounded that a mere declaratory decree remains non-executable in most cases. This Court noted that (2012) 8 SCC 148 (2014) 14 SCC 502 21| Civil Appeal No. 3854 of 2014 - 27 - NC: 2025:KHC:9122 RSA No. 780 of 2016 the suit was never amended, even at a later stage to seek the consequential relief and therefore, it was held to be not maintainable. This position of law has been reiterated recently in Akkamma and Ors. v. Vemavathi and Ors. (2-Judge Bench)32. 31. This Court in Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar v. Chandran and Others (2-Judge Bench)33 while reversing the High Court decree, observed that because of Section 34 of the SRA, 1963, the plaintiff not being in possession and claiming only declaratory relief, ought to have claimed the relief of recovery of possession. It was held that the Trial Court rightly dismissed the suit on the basis that the plaintiff has filed a suit for a mere declaration without relief for recovery, which is clearly not maintainable. 23. The Hon’ble Apex Court held that ‘mere suit for declaration without seeking further relief, the plaintiff is not entitled to mere declaration’. Admittedly, in the instant case, the plaintiff has sought the relief of declaration of title and permanent injunction. Admittedly, the plaintiff was not in possession of the suit schedule property as of the date of the suit. The plaintiff ought to have sought a relief of declaration of title and, consequently, the relief of possession. The plaintiff has failed to seek the relief of possession. Considering the ratio laid down by the Hon’ble Apex Court in the case of - 28 - NC: 2025:KHC:9122 RSA No. 780 of 2016 VASANTHA (DEAD) THR. L.R. (referred supra), this court is of the opinion that the first Appellate Court committed an error in passing the impugned judgment. 24. The impugned judgment passed by the first Appellate Court is contrary to the law laid by the Hon’ble Apex Court in the case of VASANTHA (DEAD) THR. L.R. (referred supra).Hence, the judgement and decree passed by the First Appellate Court is arbitrary, and erroneous. Further, the First Appellate Court committed an error in declaring that the registered sale deed dated 03.08.1985 in favour of defendant No.1 is null and void despite concurring with the trial Court’s judgment that the plaintiff No.1 is not in possession of the property in view of the provisions of Section 34 of the Specific Relief Act, 1963. In view of the above discussion, I answer substantial question in the negative. 25. Accordingly, I proceed to pass the following: - 29 - NC: 2025:KHC:9122 RSA No. 780 of 2016 ORDER i. The Regular Second Appeal is allowed. ii. The judgment and decree dated 09.02.2016, passed in R.A.No.49/2012 by the II Additional Senior Civil Judge and JMFC, Kolar (itenarating at Mulbagal) is set aside. iii. The judgment and decree passed in O.S.No.337/2009 dated 13.02.2012 by the Additional Civil Judge and JMFC, Mulbagal, is restored. No order as to the costs. In view of the disposal of the appeal, I.A.No.1/2016, does not survive for consideration, and is accordingly, disposed of. Sd/- (ASHOK S.KINAGI) JUDGE sks