Lachhman Das and Others vs Arjan Singh

H.R. Khanna, J.—This regular second appeal filed by Lachhman Dass and nine other defendants is directed against the judgment and decree of the learned Senior Subordinate Judge Amritsar, whereby he accepted the Appeal of Arjan Singh plaintiff-respondent, and awarded a decree for declaration in his favour against Lachhman Dass and other defendants. The only question that arises for determination in the present appeal is whether the suit for declaration as brought by the plaintiff-respondent is maintainable.

The facts giving rise to the present appeal are that Lachhman Dass and other appellants were granted a decree for possession in respect of the property in dispute against Mst. Sardar Begum and 11 others including Amar Singh on 4th July 1945. The appellants filed an application on 29th August 1953 for execution of that decree and in the application they described Amar Singh, judgment-debtor, as Amar Singh alias Arjan Singh. Warrant for possession was accordingly issued on 5th March 1954. On 8th March 1954 when the bailiff wanted to execute the decree by dispossessing Arjan Singh, the latter executed a rent in note in favour of the appellants with respect to the property in dispute. The bailiff accordingly made a report that Arjan Singh had executed rent deed in favour of the decree-holders. Arjan Singh then filed an application under Order 21, rule 100, Civil Procedure Code, contending that he was in possession of the property in his own right and that he had been illegally dispossessed from the same. The executing Court held that as Arjan Singh had executed rent note in favour of the decree-holders, no cause of action was left to him to come to the Court under Order 21, rule 100, Civil Procedure Code. His application was accordingly rejected. Arjan Singh then filed the present suit on 19th October 1954 for a declaration that there was no relationship of tenant and landlord between him and the defendants in respect of the property in dispute. According to Arjan Singh he was made to execute the rent note in favour of Lachhman Dass and other appellants by coercion and undue influence. Arjan Singh also prayed for injunction restraining the defendants from evicting him on the basis of the aforesaid rent note, but this relief was subsequently given up on 13th June 1955.

The defendants contested the suit and pleaded that they exercised no coercion and undue influence in obtaining the aforesaid rent note from the plaintiff and that the suit was not maintainable in the present form. The following issues were framed in the case:-

Whether the rent note from the plaintiff was got executed under coercion, if so, what is its effect?

Whether the suit in the present form is barred by section 42, Specific Relief Act?

Relief?

The trial Court decided both the issues in favour of the defendants and dismissed the suit of the plaintiff. On appeal by Arjan Singh, plaintiff, the learned Senior Subordinate Judge reversed the findings of the trial Court on both the issues and granted the decree for declaration sought by the plaintiff.

In second appeal the learned counsel for the defendants-appellants has not challenged finding of the lower appellate Court on issue No. 1 because of its being a finding of fact. He has, however, urged that the suit is not maintainable in the present form.

Two arguments have been advanced by the learned counsel for the appellants in support of his contention that the suit is not maintainable in the present form. In the first instance, it is argued that the suit is not maintainable because the plaintiff in the present case seeks a negative declaration to the effect that there is no relationship of tenant and landlord between the parties. It is urged that no suit for a negative declaration is maintainable. Reliance in this connection has been placed upon case Daw Pone v. Ma Hnin May AIR 1941 Ran 220, wherein it was held that a suit for declaration that the defendant was not keittima daughter of the plaintiff and her husband did not lie u/s 42, Specific Relief Act. A perusal of this authority, however goes to show that there was hardly any discussion on the point and the view was expressed that the suit should not have been brought. In the present case I find that the defendants claim to be the landlords of the plaintiff in pursuance of the rent note Exhibit D. 1 that was executed by the plaintiff when he was sought to be dispossessed in execution of the decree dated 4th July 1945. The plaintiff can prove that he is in possession of the property in dispute in his own right by only negativing the right claimed by the defendants that they are his landlords. Where the effect of negativing a right claimed by the defendant is to affirm a right claimed by the plaintiff a suit for declaration that the defendant does not possess such a right in my opinion is maintainable, if the effect of the declaration is to remove a cloud on the plaintiff''s title. I may in this context refer to a Division Bench case L. Ganeshi Lal and others v. Anwar Khan Mahboob & Co. AIR 1933 All. 495, the relevant head note of which reads as under:-

Where the effect of negativing a right claimed by the defendant is to directly or indirectly affirm a right claimed by the plaintiff in common with others, a suit for declaration that the defendant does not possess such right is maintainable. However the relief may be worded, the test is always the same, namely whether the right claimed by the defendant implies a denial of the plaintiff''s ''right as to any property'' or to some legal character.

Niamatullah J. in the course of his judgment made the following observations:-

Ordinarily there can be no objection to a plaintiff seeking a declaration which negatives the defendant''s right and in so doing affirms some right claimed by the plaintiff. Suits for a declaration that the defendant is, not the adopted son of another whose heir, in the absence of adoption, the plaintiff admittedly is, or that the defendant is not the owner of the land of which the plaintiff is a tenant are familiar instances of negative declarations which a Court may well grant. In such cases a cloud is removed from the plaintiff''s own title when the defendant''s alleged right is negatived.

Reference may also be in this context made to case Baishri Vakuba v. Thakore Agarsinghji ILR 34 Bom. 676, wherein it was held that a suit for a declaration that defendant was not the son of the plaintiff was maintainable. Another case which has bearing on the point is Chinnasami Mudaliar and another v. Ambalavana Mudaliar ILR 29 Madras 48, wherein it was held that a suit for a declaration that the person alleged to have been adopted was not adopted son of the plaintiff, was maintainable. I, therefore, hold that the argument about the suit being not maintainable on the ground that it seeks a negative declaration is not well founded.

There is, however, force in the second contention of the learned counsel for the appellants that the suit is not maintainable in the present form because the plaintiff being able to seek a consequential relief for the cancellation of the rent note exhibit D. 1 has omitted to do so. The suit is consequently stated to be not maintainable in its present form because of the proviso to section 42 of the Specific Relief Act. Under the proviso no court should make any such declaration as is mentioned in the section where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. The plaintiff in the present suit seeks a declaration that he is not a tenant of the defendants in the property in dispute. According to the defendants, the plaintiff is their tenant and they rely upon the rent note Exhibit D. 1 which was executed by the plaintiff. The plaintiff admits having executed the aforesaid rent note but according to him it, was got executed from him under undue influence and coercion. The said rent note is an insuperable obstruction in the way of the plaintiff and he cannot get a declaration about his not being the tenant of the defendants in the property in dispute without removing that obstruction. The only way of removing that obstruction was to ask for the cancellation of the rent note to which the plaintiff was a party. The plaintiff having failed to ask for the relief for cancellation of the rent note cannot in my opinion get a declaration that he is not the tenant of the defendants in the property in dispute. It is essential for him if he wants that declaration to ask at the same time for the cancellation of the rent note executed by him It is significant that the plaintiff has not even prayed for the relief that the rent note in question executed by him- may be declared null and void.

According to the plaintiff the rent note Exhibit D. 1 was voidable at his instance because he was made to execute it under coercion. The plaintiff as such could have asked for the cancellation and delivery up of the rent note u/s 39 of the Specific Relief Act. Prayer for cancellation of a document to which the plaintiff is a party can constitute a consequential relief as contemplated by the proviso to section 42 of the Specific Relief Act. Reference in this, connection may be made to case Tacootdeen Tewarry v. Nawab Syed Ali Hossein Khan 1 I.A. 192 and S. Bhagat Singh v. Sainam Transport Co. Ltd. AIR 1961 P&H. 278. I, therefore, am of the view that the suit for bare declaration as brought by the plaintiff is not maintainable and he should have also sought a consequential relief for the cancellation and delivery up of the rent note Exhibit D. 1.

The next question which arises for consideration is as to whether the plaintiff''s suit should be dismissed because of his failure to ask for further relief in the shape of cancellation of rent note or whether the suit should be remanded, as prayed for in the alternative by the learned counsel for the respondents, for allowing an opportunity to the plaintiff to amend his plaint so as to include a prayer for a consequential relief. This matter has been dealt with in a Division Bench case S. Bhagat Singh v. Satnam Transport Co. Ltd. AIR 1961 P&H. 278, referred to above. The head note, which has bearing on this case, reads as under:-

In a case where the plaintiff who is able to sue for further relief, omits to do so and sues for a declaration alone, and the proviso to S. 42 is attracted, the Court should not dismiss the suit but should give the plaintiff an opportunity to amend his plaint so as to include a prayer for consequential relief. It is then for the plaintiff either to amend the plaint and include the prayer for consequential relief, or face the possibility of the suit being dismissed. But if after an opportunity to amend the plaint has been given to the plaintiff, he fails to avail of that opportunity then there is no alternative but to dismiss the suit.

Following the above authority, I am of the view that an opportunity should be given to the plaintiff to amend his plaint so as to include a prayer for consequential relief. It is then for the plaintiff either to amend the plaint and to include the prayer for consequential relief or face the possibility of the suit being dismissed. But if after an opportunity to amend the plaint has been given to the plaintiff, he fails to avail of that opportunity, then there is no alternative but to dismiss the suit.

In the light of observations made above, I allow the appeal, set aside the judgment and decree of the Courts below and remand the case to the trial Court for retrial after affording an opportunity to the plaintiff to amend his plaint. The costs shall abide the event. The parties are directed to appear in the trial Court on the 3rd of October, 1960.