Feb 28, 2024

Suit for declaration of title without seeking recovery of possession not maintainable when plaintiff not in possession: Analysis of the Hon’ble Supreme Court judgement


Supreme Court of India (“SC”) in a recent judgment in a case titled ‘Vasantha (Dead) Thr. Lr. v. Rajalakshmi @ Rajam (Dead) Thr. Lrs.‘, illustrated the technical interplay between the title to property and possession to the same property in dispute. SC examined the implication of Section 27 (Extinguishment of right to property) of the Limitation Act, 1963 (“LA”), on property rights and maintainability of suit for declaration of title of ownership, in absence of relief of recovery of possession, which may be hit by proviso to Section 34 (Discretion of Court as to declaration of status or right) of the Specific Relief Act, 1963 (“SRA”).


This case relates to a family property dispute that originated in the year 1947, wherein Thayammal vide a settlement deed, granted rights in her property to her 2 sons, Raghavulu Naidu and Munusamy Naidu, for their lifetimes and thereafter the rights in the property was to devolve upon, Raghavulu Naidu’s 2 daughters, Saroja and Rajalakshmi. Saroja pre-deceased Thayammal, her father and uncle. Later, on July 31, 1952, Raghavulu and Munusamy reverted the rights and interests in the property to their mother vide a settlement deed (“First Settlement Deed”). Thayammal executed another settlement deed (“Second Settlement Deed”) bequeathing absolute interest in the property only in favour of her 2 sons. Munusamy had no children and his wife, Pavunammal enjoyed life interest in the property bequeathed to her husband. They had an adopted daughter, Vasantha, the appellant. Munusamy, on October 7, 1976, executed a settlement deed in favor of his wife and she executed a settlement deed in favour of Vasantha on July 19, 1993.

In 1993, Saroja’s husband Gopalakrishnan, filed a suit for declaration of ownership of the said property before the Additional District Munsif (“Trial Court”). In the said suit, it was urged that only the First Settlement Deed had legal validity and Pavunammal was only entitled to possession and enjoyment of the property till her lifetime. Munusamy could not transfer the rights in the property in favour of his wife and accordingly, she could not have transferred the rights in the property in favour of Vasantha. It was also urged that the Second Settlement Deed only applied during Thayammal’s lifetime and did not affect the vested rights of Saroja, which were inherited by Gopalakrishnan. Further, as the vested rights in favor of Saroja were created before adoption of Vasantha, therefore that would not affect the rights of Gopalkrishnan. The Trial Court held that (i) the First Settlement Deed was genuine and existing; and (ii) as Gopalakrishnan, being apprised of the execution of Second Settlement Deed and executing a settlement deed in 1976, filed the suit only in 1993, which was barred by limitation, thus abating the rights of the petitioner.

Thereafter, Gopalkrishnan filed an appeal before Additional District and Session Judge (“1st Appellate Court”). The 1st Appellate Court held that as the petitioner never took any steps to revoke various transactions, with respect to the property and failed to prove dispossession within a period of 12 years, i.e., the time period within which adverse possession could be claimed, thus, judgement of the Trial Court was upheld, and the appeal was disallowed by the 1st Appellate Court. Aggrieved by the decision, Gopalkrishnan filed a second appeal before the High Court (“HC”) in 2002. HC held that (i) the interest vested in Saroja was full and not life interest, and upon her death, her interest in the property would not reverse to the settlor and the enjoyment of the property stood postponed till the life interest of Raghavulu and Munusamy; (ii) on question of limitation, the suit was not barred by limitation as the 2 settlement deeds executed after the First Settlement Deed were beyond the competency of the executants and since in the suit, the life estate holder has been impleaded and as Gopalkrishna had the option of filing the suit even after her lifetime, the same is not barred by limitation; and (iii) according to the First Settlement Deed, the petitioner shall be entitled to half share in the property after the lifetime of Vasantha. The HC’s order was then challenged by Vasantha before the SC.


The questions for considerations by SC inter alia were (i) whether Gopalkrishna’s suit for declaration based on the First Settlement Deed, filed in 1993 was barred by limitation; and (ii) whether the suit for declaration was maintainable in view of proviso to Section 34 of SRA.

SC, while contemplating on the first issue, held that the period of limitation for establishing adverse possession of Vasantha began upon the death of Pavunammal in the year 2004 and by 2016, Vasantha had perfected the title by adverse possession. SC held that since the suit filed by Gopalkrishnan is a suit for declaration simpliciter and not recovery of possession, the possession still rests with heirs of Pavunammal. The possible cause of action would have arisen at the time of the Second Settlement Deed (1952); Munusamy’s settlement deed with Pavunammal (1976); Pavunammal’s vesting of the rights in the property to Vasantha (1993); or Pavunammal’s death (2004). Thus, apart from declaration, he ought to have sought the relief of possession as well. However, on no such occasion a relief of possession was sought. SC held that the 12-year period stood expired in 2016 (Pavunammal’s death in 2004), and the suit is barred by limitation. SC further stressed on the principle enshrined in Section 27 of the LA, emphasizing that the lapse of limitation restricts the remedy available to the aggrieved party but does not nullify the underlying title.

While examining the second issue of whether the suit for declaration was maintainable, SC referred to cases titled ‘Ram Saran v. Ganga Devi’[1] and ‘Vinay Krishna v. Keshav Chandra’[2] wherein it was held that the suit seeking a declaration of title of ownership where possession is not sought, is hit by the proviso of Section 34 of the SRA, and is thus, not maintainable. SC also referred to a case titled ‘Venkataraja and Ors. v. Vidyane Doureradjaperumal (Dead) through LRs [3], wherein the objective behind Section 34 of the SRA was elucidated by the SC. SC observed that the proviso is to prevent multiplicity of proceedings. It was further expounded that mere declaratory decree remains non-maintainable in most cases. SC further noted that the suit for declaration filed by the Petitioner 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 was reiterated in the case titled ‘Akkamma v. Vemavathi[4].

Although, SC recorded the contention of the petitioner that “since at the time of filing of the suit, the life interest holder was alive, she was entitled to be in possession of the property” the petitioner “not being entitled to possession at the time of institution of the suit, recovery of possession could not have been sought“.

SC in the present case, observed that the law becomes crystal clear that it is not permissible to claim the relief of declaration without seeking consequential relief. SC held that in the instant case, suit of declaration was filed, though the petitioner was admittedly not in possession of the suit property. Thus, the suit was barred by the provisions of Section 34 of the SRA, and ought to have been dismissed solely on such ground by the HC. SC further observed that on perusal of the plaint, the petitioner was aware that the appellant was in possession of the suit property and therefore it was incumbent upon him to seek the relief which follows. SC further noted that after the death of life estate holder in 2004, there was no attempt made by Gopalkrishnan, the petitioner to amend the plaint to seek the recovery of possession, which could have been done at any stage of the suit, even at the second appeal stage. SC answered the second issue in the favour of the appellant and against Gopalkrishnan.

SC, thus, set aside the second appeal no. 1926 of 2004 dated September 27, 2012 filed before the HC, allowed the appeal before it and ruled that “…the judgment impugned before us fails scrutiny at the threshold stage itself, i.e. on limitation as also maintainability of the suit. This being the case, the judgment of the Trial Court in O.S. No. 726 of 1993 as also the First Appellate Court in S.C. Appeal Suit 47/99 FTC-II Appeal Suit 113/2002 which dismissed the suit of Gopalkrishnan on the grounds of limitation cannot be faulted with.”


In conclusion, SC relied on the technicality in cases where suit for declaration of title is filed by an aggrieved petitioner, who is not in possession of the suit property, relief of recovery of possession of the suit property is also ought to be claimed; and the petitioner who may have timely filed the suit for declaration of title did not get the relief since at that time appropriate relief for possession was not sought. In this case, the suit was first filed by the petitioner in 1993 (well within the timelines when cause of action arose, viz. immediately after execution of the Second Settlement Deed) and the judgement day of SC comes in 2024, after 31 years of the filing of the first suit in 1993, and thereby all conceivable limitations have expired! Had such suit for declaration was decided within certain reasonable timelines, then the petitioner may have conveniently sought a very consequential relief which is a suit for possession of the same property (since Pavunammal was alive until 2004, which is 11 years after filing of first suit). The petitioner here spent all his life-time and 31 years in fighting legal battles full of technicalities and long drawn tedious processes, and lost on a very technical ground!!

At the end, there appears to be ambiguity as to whether if a petitioner does not seek further relief of recovery of possession and files a suit for mere declaration of title, the suit will be hit by the proviso to Section 34 of the SRA, thus be not maintainable in all circumstances. Essentially, a petitioner should be allowed to file a “suit for possession” at a later stage as well, within the limitation period prescribed by law, which can be after obtaining a decree for a suit for declaration of title to the same property; and there should be no necessity for filing suit for possession when the suit for declaration of title is pending. That can certainly be planned if there is some certainty on the likely time that may take to obtain a simpliciter decree for suit for declaration!

Please watch this space as we continue our efforts to keep tracking legal complexities in real estate ….


[1] (1973) 2SCC 60.

[2] 1993 Supp (3) SCC 129.

[3] (2012) 8 SCC 148 (2-Judge Bench).

[4] 2021 SCC Online SC 1146.





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