A plaintiff out of possession must seek recovery of possession alongside a declaration of title.

The plaintiff sought a declaration of title and permanent injunction over four guntas in Survey No. 22/6, claiming she had purchased the land from the defendants under a registered sale deed dated 5 March 1998. The deed, however, described the land as Survey No. 48/4, and no rectification deed correcting the survey number was executed.

The trial court dismissed the suit, finding that the plaintiff had not proved possession and had admitted that the defendants possessed the property; it also held that she had omitted to seek possession as required by Section 34 of the Specific Relief Act, 1963.

The first appellate court reversed that decree and granted relief to the plaintiff. The defendants appealed under Section 100 CPC; the High Court admitted the appeal on the substantial question concerning the appellate court’s reliance on revenue records and its treatment of the plaintiff’s admissions about possession.

Whether the first appellate court was justified in finding that the plaintiff was in possession on the basis of revenue records, despite her cross-examination admissions that the defendants were in possession, and in decreeing the suit for declaration and injunction?

Section 34 of the Specific Relief Act, 1963 permits a declaration of legal character or property right, but its proviso bars declaratory relief where the plaintiff can seek further relief and omits to do so; where the plaintiff is out of possession, possession is the appropriate consequential relief.

In a second appeal under Section 100 CPC, the High Court considers the formulated substantial question of law and may interfere where the first appellate court’s findings rest on an erroneous appreciation of the evidence or are unsupported by the record.

The judgment also treated the unrectified description in the sale deed, the plaintiff’s admissions, and the absence of supporting records for Survey No. 22/6 as material to whether she had established title and possession over the suit property.

The sale deed relied on by the plaintiff identified Survey No. 48/4, not Survey No. 22/6, and no valid document corrected that description. The revenue records relied on by the plaintiff either related to Survey No. 48/4 or did not record her as owner or possessor of the disputed portion of Survey No. 22/6; the defendants, by contrast, produced records concerning that survey number.

The compromise decree in the earlier suit did not establish the plaintiff’s rights because she was neither a party nor a beneficiary, and its subject matter and boundaries differed from those in the present suit.

The plaintiff also admitted that the defendants were in possession, while the sale deed remained unrectified. The High Court therefore held that the first appellate court erred in relying on the revenue records and disregarding those admissions; its findings were not supported by the evidence.

It allowed the appeal, set aside the first appellate court’s judgment and decree dated 2 June 2014, and restored the trial court’s decree dismissing the plaintiff’s suit.