1 / 10 2025:CGHC:48172 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 69 of 2015 • Smt. Archana Jain W/o Anil Kumar Jain Aged About 44 Years R/o Plot No. 148 Modal Town, Road No. 2, Bhilai Post Nehru Nagar, Tahsil And District Durg Chhattisgarh , Chhattisgarh --- Appellant/Defendant versus • A. L. Prasad S/o Heeralal Sao Aged About 65 Years R/o D/701, Kalpvriksh Gotri, Main Road, Badoda Gujrat, Gujarat ---Respondent/ Plaintiff ____________________________________________________________ For Appellant : Ms. Sharmila Singhai, Sr. Advocate assisted by Ms. Kanchan Kalwani, Advocate & Mr. Hrishabh Deo Shukla, Advocate For Respondent : Ms. Renu Kochar, Advocate with Mr. Gyan Prakash Dandekar, Advocate Hon'ble Shri Justice Parth Prateem Sahu Judgment on Board 18.09.2025 1. This first appeal under Section 96 CPC has been filed by defendant assailing the judgment and decree dated 31.01.2015 passed by learned Fourth Additional District Judge, Durg, District Durg (CG) in Civil Suit No. A/1235222/2011, by which the trial Court has allowed the suit filed by the respondent/plaintiff for declaration of title and permanent injunction, declare the plaintiff to be the owner of land bearing Khasra No. 1084/366 measuring 0.01 hectare ie., 1200 sq.ft situated at village Junwani and to injunct the defendant from selling or transferring the said land. PAWAN KUMAR JHA Digitally signed by PAWAN KUMAR JHA 2 / 10 2. For the sake of convenience, the parties shall be referred to in terms of their status shown in Civil Suit No. A/1235222/2011 before the trial court. 3. Brief facts of the case as projected by the plaintiff before the Trial Court are as under: (i) Plaintiff, originally residing in Model Town, Junwani, Bhilai, District Durg, but presently residing in Gujarat, entered into an agreement with the defendant on 11.01.2006 to sell his land bearing Khasra No. 970, admeasuring 0.02 hectares (1200 sq. ft.), situated in Model Town, Junwani, Bhilai. As per the agreement, consideration was fixed, and upon receipt of balance amount, plaintiff executed a registered sale deed dated 06.05.2006 in favour of the defendant for Khasra No. 970 only. The plaintiff submitted Khasra, map of Khasra No. 970 at the time of registration, and execution of sale deed was duly completed. (ii) The plaintiff later discovered that, apart from Khasra No. 970, the defendant had also got another piece of land, bearing Khasra No. 1084/366, admeasuring 0.02 hectares (Plot No. 103), fraudulently inserted in the sale deed dated 06.05.2006. The plaintiff never agreed to sell, nor executed any deed, or received consideration for land bearing Khasra No. 1084/366. When the plaintiff attempted to deal with Khasra No. 1084/366 in September 2007, he found that the said land stood mutated in the defendant’s name in revenue records, leading him to obtain a certified copy of the sale deed which confirmed the fraudulent inclusion of Khasra No. 1084/366 by the defendant. (iii) Upon becoming aware of the fraud, plaintiff issued a registered legal notice dated 12.11.2007, served upon defendant on 17.11.2007, asking for return of his land. However, the defendant failed to comply and instead demanded money for reconveyance. Plaintiff, thereafter filed a suit on 15.02.2011 seeking declaration that land bearing Khasra No. 1084/366 to be his property, deletion of the defendant’s name from the revenue records, and 3 / 10 a permanent injunction restraining the defendant from alienating the disputed land. 4. In written statement filed on behalf of defendant, it is pleaded that an agreement was executed with the plaintiff on 11.01.2006, but denied that only Khasra No. 970 measuring 0.02 hectare was mentioned in the agreement dated 11.01.2006. Plaintiff had shown the land and building to defendant, and the total sale consideration was fixed at ₹ 3,40,000/-. In compliance with the said agreement, plaintiff executed a registered sale deed dated 06.05.2006 in favour of defendant before the Sub-Registrar, Durg. Defendant further admitted that the plaintiff owned two parcels of land—Khasra No. 970 and Khasra No. 1084/366, each measuring 0.02 hectare/ 1200 sq.ft. in Model Town, Junwani. However, she stated that the agreement dated 11.01.2006 was in respect of all the land covered in the registered sale deed of 06.05.2006. Plaintiff received entire sale consideration of ₹ 3,40,000/- from defendant, and the sale deed was lawfully executed. She never got land registered without consideration, nor did she ever demand money for reconveyance. Plaintiff was fully aware of the terms of the transaction and had accepted full consideration against property. 5. On the basis of pleadings of the parties and evidence, learned Trial Court has framed as many as four issues which are extracted below: Sr. No. Issues Conclusion 1. Whether the land Khasra No. 1084/366 situated in village Junwani still belongs to the plaintiff, which the defendant has fraudulently included in the sale deed dated 06/05/2006? Proved 2. Whether the defendant is required to be restrained from transferring the said land to any other person? Proved 3. Whether the defendant purchased from the plaintiff, through the sale deed dated 06/05/2006, land Khasra No. 970, area 1200 sq. ft. along with the house, besides other vacant land Khasra No. 1084/366, area 1200 sq. ft.? Proved 4. Relief and cost? Plaintiff's suit 4 / 10 was accepted as per clause no. 30 of the judgment. 6. Learned Senior counsel for the appellant-defendant would submit that learned Trial Court while considering pleadings made in the plaint and evidence of plaintiff held that the defendant while executing sale deed has played fraud, added the open land bearing Khasra No. 1084/366, however not decided the said ground raised by plaintiff in accordance with law, and concluded that due to typographical error by the document writer the land bearing Khasra No. 1084/366 is also mentioned in the sale deed, which is erroneous. She next contended that the plaintiff after execution of sale deed was not in possession of land bearing Khasra No. 1084/366, however, in the plaint no relief of possession of land has been claimed and therefore also the Civil Suit was not maintainable in absence of further relief which ought to have been sought in the plaint in addition to the relief as already sought. She further submits that admittedly grievance of the plaintiff was about the description of property as mentioned in the sale deed ie., open land bearing Khasra No. 1084/366 which is a registered document under Registration Act, however, no relief is claimed for setting aside that portion of the sale deed which bears in description of property, subject matter of sale deed of the land bearing Khasra No. 1084/366 and therefore also no relief can be granted as prayed for. Lastly she contended that the sale deed is a registered document and therefore if it is challenged on the ground of fraud played by the parties to the document, it is to be proved by producing admissible evidence in this regard and read over the provisions of Sections 91 & 92 of the Evidence Act, 1872. In support of her contention, she places reliance upon the decision of Hon’ble Supreme Court in case of Suhrid Singh alias Sardool Singh vs. Randhir Singh and others reported in (2010) 12 SCC 112, Vasantha v. Rajalakshmi, reported in (2024) 5 SCC 282, Electrosteel Castings Ltd. v. 5 / 10 UV Asset Reconstruction Co. Ltd., reported in (2022) 2 SCC 573, Tamil Nadu Electricity Board v. N. Raju Reddiar, reported in (1996) 4 SCC 551 and Jagdish Prasad Patel (dead) through Lrs vs. Shivnath and others reported in (2019) 6 SCC 82. 7. Ms. Renu Kochar, learned counsel for plaintiff would vehemently oppose the submission of learned counsel for defendant and would further submit that the sale deed was executed pursuant to the sale agreement Ext. P-1 entered into between the parties. Ext. P-1, agreement of sale is with respect to constructed house only and there is no mention of any open land bearing Khasra No. 1084/366. She would also submit that sale consideration of the house is mentioned as ₹ 3,40,000 only from which it is evident that the sale deed was executed with respect to constructed house as per sale agreement. To substantiate her submission that the intention of plaintiff was to sale house only, she read paragraph No. 5 of deposition of defendant/ appellant and submitted that, she admitted that the constructed area of the house was 687 sq.ft. on 1200 sq.ft. of land. She submits that both the properties are having land area of 1200 sq.ft. She would submit that from the document Ext. P-1 and the evidence of DW-1, it is apparent that the intention of plaintiff and purchaser is to sale and purchase the constructed house only and not the open land. She next contended that when the document which is subject matter of the Civil Suit ie., the sale deed, is questioned on the ground of fraud, the provisions under Sections 91 & 92 of the Evidence Act will not apply and it can be proved only on the basis of oral evidence. 8. Learned Senior counsel in reply to the arguments raised by learned counsel for plaintiff would submit that defendant No. 1 in her deposition which is read over by the learned counsel for plaintiff has made statement with respect to two different properties one is house, construction area of which is 687 sq.ft. 6 / 10 and other is plot having area of 1200 sq.ft. and therefore it has to be read separately and not inclusively. 9. I have heard learned counsel for the parties and also perused the record of Trial Court. 10. In the plaint, plaintiff in paragraph No. 9 has clearly mentioned that defendant has not returned back the land even after issuance of notice dated 12.11.2007 which was the cause of action for filing Civil Suit. However, in the relief clause, plaintiff has not sought a relief of possession of land bearing Khasra No. 1084/366. Section 34 of the Specific Relief Act, 1963 talks of Discretion of court as to declaration of status or right. Under proviso to Section 34, it envisages 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. 11. In the case at hand, plaintiff has sought for declaration of title and permanent injunction. Even after pleading in the plaint in paragraph No. 9 that the possession of land, subject matter of the Civil Suit, bearing Khasra No. 1084/366 was not returned by defendant, plaintiff did not chose to seek further relief of possession. Hon’ble Supreme Court in the case of Vasantha (supra) while considering that whether the suit for declaration simpliciter was maintainable in absence of further relief, in view of Section 34 of the Specific Relief Act, 1963 observed thus: “49. We now proceed to examine the law on this issue. As submitted by the learned Senior Counsel for the appellant, in Vinay Krishna v. Keshav Chandra [Vinay Krishna v. Keshav Chandra, 1993 Supp (3) SCC 129] (two-Judge Bench), this Court while considering Section 42 of the erstwhile Specific Relief Act, 1877 to be pari materia with Section 34 of SRA, 1963 observed that the plaintiff's not being in possession of the property in that case ought to have amended the plaint for the relief of recovery of possession in view of the bar included by the proviso. 7 / 10 50. This position has been followed by this Court in Union of India v. Ibrahim Uddin (two-Judge Bench), elaborated the position of a suit filed without the consequential relief. It was observed : (SCC p. 173, paras 55-58) “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 [Ram Saran v. Ganga Devi, (1973) 2 SCC 60] this Court had categorically held that the suit seeking for declaration of title of ownership but where possession is not sought, is hit by the proviso to Section 34 of the Specific Relief Act, 1963 and, thus, not maintainable. In Vinay Krishna v. Keshav Chandra [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 [Gian Kaur v. Raghubir Singh, (2011) 4 SCC 567 : (2011) 2 SCC (Civ) 366] .) 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.” 12. In the case of Venkataraja v. Vidyane Doureradjaperumal, reported in (2014) 14 SCC 502, Hon’ble Supreme Court has observed that the purpose behind incorporating the proviso to Section 34 of the Specific Relief Act, 1963 8 / 10 is to prevent multiplicity of proceedings. The declaratory decree remains non- executable in most cases. In that case, Hon’ble Supreme Court took note of the fact that the suit was not amended even at a later stage seeking consequential relief and held the suit to be not maintainable. 13. In the case of Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar vs. Chandran and others reported in (2017) 3 SCC 702, Hon’ble Supreme Court has observed that where the plaintiff therein was not in possession of the suit property and claiming only declaratory relief, ought to have claimed relief of recovery of possession and it was held that Trial Court had not committed any error in dismissing the suit observing that the plaintiff has filed the suit for only declaration without the relief for recovery of possession, to be not maintainable. 14. Hon’ble Supreme Court in the case of Anathula Sudhakar v. P. Buchi Reddy reported in (2008) 4 SCC 594 has explained as under: • If a person is not in possession, he cannot only ask for injunction. • If title is disputed and the plaintiff is not in possession, he must ask for declaration and possession, not just one of them. 15. Plaintiff in his suit did not ask for possession of the land. In paragraph 9 of his plaint, the plaintiff himself said that the defendant did not return the land even after notice dated 12.11.2007, as discussed in preceding paragraph. But in the relief clause, he only asked for (i) declaration of title and (ii) injunction — not possession. Under Section 34 of the Specific Relief Act, 1963, if a person is not in possession and could have asked relief of possession, but fails to do so, the Court cannot grant only a declaration of ownership. Therefore, the suit, asking for declaration and injunction without seeking relief of possession, was not maintainable. 16. In the case at hand also, plaintiff in this case had not made any prayer seeking relief of possession of the property, subject matter of the plaint. 9 / 10 17. The plaintiff was also the person who sold the property and executed the sale deed. As per the Supreme Court judgment in Suhrid Singh alias Sardool Singh (supra), when the executant of a sale deed wants to challenge it, he must ask for cancellation of that sale deed and pay the required court fee. He cannot just file a suit for “declaration” saying the sale deed is invalid. Since the plaintiff in the present case did not ask for cancellation of the sale deed, even partly for Khasra No. 1084/366, his suit was legally defective. 18. In this case, the plaintiff did not ask relief of possession and cancellation of sale deed and hence, case is defective on both counts. 19. Hon’ble Supreme Court in the case of Electrosteel Castings Ltd. (supra) while considering the issue of fraud raised by the parties therein has observed thus: “8.1. Similar view has been expressed in Ladli Parshad Jaiswal [Ladli Parshad Jaiswal v. Karnal Distillery Co. Ltd., (1964) 1 SCR 270 : AIR 1963 SC 1279] and after considering the decision of the Privy Council in Bharat Dharma Syndicate Ltd. v. Harish Chandra [Bharat Dharma Syndicate Ltd. v. Harish Chandra, 1937 SCC OnLine PC 24 : (1936-37) 64 IA 143] , it is held that a litigant who prefers allegation of fraud or other improper conduct must place on record precise and specific details of these charges. Even as per Order VI Rule 4 in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, particulars shall be stated in the pleading. Similarly in K.C. Sharma & Co. [Union of India v. K.C. Sharma & Co., (2020) 15 SCC 209] it is held that “fraud” has to be pleaded with necessary particulars. In Ram Singh [Ram Singh v. Gram Panchayat Mehal Kalan, (1986) 4 SCC 364], it is observed and held by this Court that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances by which the suit is barred by law of limitation.” 10 / 10 20. In the aforementioned decision, Hon’ble Supreme Court has clearly observed that if the plea of fraud is taken then it has to be pleaded with specific and necessary particulars. 21. For the foregoing discussion, the suit for declaration and injunction only, without asking for possession, is barred under Section 34 of the Specific Relief Act. The executant of the sale deed, ie., plaintiff should also have sought cancellation of the document under Section 31 of the Specific Relief Act but did not do so. Therefore, this Court holds that the plaintiff’s suit was not maintainable and that the findings of the trial court to that extent were legally incorrect. Mutation made in the defendant’s name on the basis of registered sale deed cannot be disturbed without proper cancellation of sale deed. 22. As this Court held that the suit, only for declaration of title without further relief of possession, when the plaintiff was not in possession of suit property and further that the plaintiff though party to the sale deed failed to sought relief of cancellation of sale deed, is defective, this Court is not discussing the issue of fraud in execution of sale deed as raised by the plaintiff in his suit. 23. Accordingly, the appeal is allowed. The impugned judgment and decree dated 31.01.2015 passed by the Fourth Additional District Judge, Durg in Civil Suit No. A/1235222/2011 are set aside. The plaintiff’s suit is dismissed. 24. All pending applications, if any, are disposed of. Decree be drawn up accordingly. Sd/- (Parth Prateem Sahu) Judge pwn