Case laws relating to Section 34 of The specific relief Act

 Radhika Prasad Vs. NuruddIn Khan and ors.

Facts : the respondent plaintiff has filed a suit for declaration and injunction in respect of
agriculture land bearing Survey No. 311 situated at Sherpura, Vidisha it is alleged that the
said land was owned by one Akhter Alam. The plaintiff has entered into an agreement to
purchase the said property on 21-3-1967 and is in possession of the suit property. He has
paid the entire consideration of Rs. 3,000/- at the time of agreement. He filed the present
suit alleging that he may be declared the title holder of the property and his name be
mutated in the revenue record against the said property.
The contention of learned Counsel for petitioner is that the respondent plaintiff is
claiming title to the suit property on the basis of an agreement to sale.
Under Section 54 of the Transfer of Property Act an agreement to sale does not confer
any title to a person in whose favour the agreement is executed as per Section 54 an
agreement to sale merely creates right in the suit property and not a right to a suit
property. Hence, plaintiff can not be declared owner of the property on the basis of the
said agreement.
Section 53A of the T.P. Act merely gives protection to a person in possession of the
property in pursuance of an agreement but no one can file a suit on the basis of such
agreement for protection of his interest there is no doubt about this proposition

the plaintiff in the present case has filed a suit for declaration and injunction at the time
of deciding the application under Order VII Rule 11. This Court can not examine whether
a plaintiff shall ultimately succeed or not.

Neither Section 53A nor Section 54, T.P. Act creates any bar for filing the suit. The
learned Counsel for the petitioner has also urged that the suit is barred under Section 34
of the Specific Relief Act Section 34 prohibits a suit for mere declaration without
consequential relief. But in the present case relief of injunction is also prayed by the
plaintiff.

 Kamla Rani and anr. Vs. Joginder Singh and ors.

Facts : The case of the plaintiffs is that they purchased second floor of property No.108
comprised in Khasra No.250 of Mehrauli from defendant No.1 on 21.05.2004 and the
sale deed was duly executed by defendant No.1 in their favour. The sale deed by
defendant No.1 was executed as attorney of the previous owner Smt. Deep Mala. This is
also the case of the plaintiffs that possession of the aforesaid property had already been
delivered to them on 29.03.2004. It later transpired that in a sham transaction, defendant
No.1 had conveyed title of the aforesaid property to defendant No.2 in a clandestine
 manner. Defendant No.2 then took a loan from defendant No.3 - Allahabad Bank on the
strength of the title deed executed by defendant No.1 in his favour. The plaintiffs have
accordingly sought a declaration that the right, title and interest in the second floor of
property No.108 comprised in Khasra No.250 of Mehrauli vest with them and the sale
deed executed by defendant No.1 in their favour is legal and valid in law. They have
sought a further declaration that the sale deed executed by defendant No.1 in favour of
defendant No.2 is void ab initio. They have also sought a declaration that the mortgage of
the suit property by defendant No.2 in favour of defendant No.3 is vitiated in law

Though the case of the plaintiffs is that the transaction between defendants No. 1 and 2 was a
sham transaction, there is absolutely no evidence which would substantiate the case of the
plaintiffs in this regard. There is no evidence to prove that no such payment was actually made
by defendant No. 2 to defendant No. 1. In fact, the sale deed executed by defendant No. 1 in
favour of the plaintiffs is for a consideration of Rs 5 lac, which is less than half of the sale
consideration, purporting to have been received by him from defendant No. 2. Thus, there is no
evidence produced by the plaintiffs, which would persuade the Court to hold that the transaction
between defendants No. 1 and 2 with respect to sale of the suit property, was not a genuine sale
transaction.
7. In any case, the plaintiffs have not sought any cancellation of the sale deed executed by
defendant No. 1 in favour of defendant No. 2. The declaration sought by the plaintiffs cannot be
granted to them unless they seek relief of cancellation of the sale deed executed by defendant
No. 1 in favour of defendant No. 2. Section 34 of Specific Relief Act, to the extent it is relevant,
provides that a declaration with respect to any legal character was or to any right as to any
property shall not made by the Court, where the plaintiff, being able to seek further relief than a
mere declaration of title, omits to do so. The words "further relief" means a relief flowing
directly necessarily from the declaration sought. This is a relief appropriate to and necessarily
consequent on the right or title asserted by the plaintiffs, would complete the claim of the
plaintiff and avoid multiplicity of suits. Of course, the relief must be in relation to the legal
character or right to any property, which the plaintiff is entitled to and which the defendant
denies or is interested to deny.
The case of the plaintiffs is that the Power of Attorney and possession letter executed by
defendant No. 1 in their favour was witnessed by defendant No. 2. The documents filed by the
plaintiffs do show that defendant No. 2 Sunil was a witness to the General Power of Attorney,
purporting to be executed by defendant No. 1 in favour of the plaintiffs, but, this only means that
both defendants No. 1 and 2 had connived and conspired to cheat the plaintiffs by
misrepresenting to them that the suit property was still owned by defendant No. 1, whereas, in
fact, it had already been sold by him to defendant No. 2. If this is so, the appropriate remedy
available to the plaintiffs in law is to sue defendants No. 1 and 2 for damages and also seek
return of the money which they paid to defendant No. 1. They can also initiate appropriate
criminal proceedings against the defendants for cheating them by misrepresenting that the suit
property was owned by defendant No. 1, whereas he had, by that time, already sold it to
defendant No. 2. But, defendant No. 2 being a witness to the documents executed in favour of
the plaintiffs on 29th March, 2004, does not, by itself, show that the sale transaction between
defendants No. 1 and 2 on 07th January, 2004 was a sham and bogus transaction which was not
intended to be acted upon.

It was contended that since the plaintiff couldn’t prove that the transaction was bogus , the
property cannot be in their name.

 Shree Krishna Apartment Private Ltd. Vs. U.K. Developers Private Ltd.

Facts : the Plaintiff became the owner of the land in suit measuring 35 cottahs 3 chhitaks
and 15 square feet along with various sheds and structures standing thereon at premises
No. 187, Netaji Subhas Chandra Bose Road, P.S. Jadavpur by purchase. Admittedly, an
agreement was held between the parties (i.e. between the owner and the developer) on
July 28, 1996 for construction of a multi-storied building on the said land in suit and the
Defendant was entrusted to make construction of the building accordingly. Admittedly,
the Defendant invested huge money at the time of purchase of the property by the
Plaintiff, eviction of the tenants and unauthorized occupants there from and also at the
subsequent stage for the making construction etc. Amongst other clauses, there were
terms to the effect that upon construction, the Plaintiff would get 30 per cent of the
construction and the Defendant would be at liberty to dispose of 70 per cent of the
construction. 5. Ultimately, it was settled that the Plaintiff would get 7 flats and 7 garages
out of the property constructed by the Defendant and till the allocation in favor of the
Plaintiff is not made, the developer would hold the same as trustee of the Plaintiff and
that it would not part with, alienate, encumber or in any way deal with or dispose of the
same. Another term is to the effect that the developer is entitled to adjust the sum, out of
its allocation in the new building, at the agreed rate of Rs. 600/- per square foot of the
super built area although, the sale of the flat was being made to the others at the rate of
more than Rs. 3,000/- per square foot.

When the dispute cropped up between the parties, this Bench, in exercising of its
revisional jurisdiction against the interim order, has observed that as per terms of contract
between the parties, the Lower Appellate Court is quite justified in passing the order of
status quo. This Bench has also observed that as per times of settlement between the
parties, until the developer delivers the possession of seven flats and seven garages to the
Plaintiff, the developer shall possess the building as a trustee of the owner. Till such
period, the developer will not be able to execute and register any deed in favor of the
intending purchasers. Thereafter, the learned Lower Appellate Court has dismissed the
said misc. appeal on contest holding that the Plaintiff/Petitioner herein could not make
out a prima facie case in support of the prayer for an order of ad interim injunction and
that the learned Trial Judge did not err in refusing the said prayer for ad interim
injunction. Accordingly, she has dismissed the misc. case
 Several meetings were held for settlement of the dispute. In the meeting dated February
19, 2006, it was held that the Defendant would hand over the possession of six flats and
six garages to the Plaintiff. Subsequently, as per correspondences between the parties, the
Defendant agreed to deliver the possession of seven flats and seven garages to the
Plaintiff. 9. It is the specific contention of the Plaintiff that the Defendant had transferred
two flats in favor of the third party without handing over the possession of those seven
flats and seven garages to the Plaintiff at first in terms of the agreement dated July 28,
1996 and subsequent agreement and correspondences. 10. As per materials on record, the
Plaintiff executed the power of attorney in favor of the Defendant to construct the
building and not to sell the flats. Under the circumstances, the Plaintiff has been
compelled to file the suit for the relief's already stated. These facts clearly indicate that
the Plaintiff has shown prima facie case to go for trial to resolve the dispute between the
parties. The observations of the Appellate Court that the Plaintiff has failed to show
prima facie, I hold, cannot be accepted.

Mr. Mukherjee has also referred to Section 34 of the Specific Relief Act and thus, he has
submitted by referring the prayer of the plaint that since a pure suit for declaration has been
sought for, though, the Plaintiff is out of possession of the suit property, the suit is not
maintainable. For that reason, no injunction could be granted in favor of the Plaintiff.

 Meharchand Das vs. Lal Babu Siddique and Ors.

Facts : The appellant herein was a tenant under the respondents. He was, however, said
to be a landless person. A Parcha was purported to have been granted on or about
29.9.1969 by the Collector of Samastipur District, in terms of the provisions of Section 6
of the Bihar Privileged Persons Homestead Tenancy Act, 1947 ("the Act", for short), the
father of the respondents (Nos. l to 5) filed a suit for eviction against the appellant herein,
purported to be one under Bihar Buildings (Lease, Rent & Eviction) Control Act, 1947.
The said suit was dismissed on 27.5.1977. No appeal there against was filed. Another
suit, however, was filed in the Court of Munsif-II, Samastipur, which was as Title Suit
No. 71/1978, on the premise that the said Parcha under Section 6(2) of the Act, was
issued without jurisdiction and the same had been fraudulently obtained.

One of the contentions raised by the appellant herein in the said suit was that in terms of
the proviso appended to Sub-section (2) of Section 6 of the Act the suit was not
maintainable. On a finding that the said Parcha was obtained upon committing fraud, the
suit was decreed. The appeal preferred by the appellant was dismissed. In the second
appeal which was filed by the appellant, the following 'purported questions of law were
formulated:

The High Court, as noticed hereinbefore, dismissed the second appeal inter alia holding
that the defendant had been in possession. It, however, purported to have applied the law
laid down by this Court in Vinay Krishna v. Keshav Chandra and Anr. on the premise
that as, admittedly; the defendant had been in possession of the suit property and the only
relief prayed for in the suit was to set aside the order dated 29.9.1969, no consequential
relief was required to be made for in the suit.

learned senior counsel appearing on behalf of the appellants would submit that in view of
the express bar contained in the proviso appended to Section 34 of the Specific Relief
Act, 1963, the suit was not maintainable. It was submitted that in any event the Collector
having not been leaded as a party, the suit should have been dismissed.

In this case, it stands admitted that the appellant was treated to be a tenant by the
respondents. The suit property, according to the respondents, was a tenanted one. The
possession of the appellant, therefore, was denied and disputed. It is furthermore admitted
that the suit for eviction which was filed by him, was as noticed hereinbefore, dismissed
by the Civil Court on 27.5.1977. The defendant-appellant, therefore, had been in
possession of the suit property. In that view of the matter the plaintiffs-respondents could
seek for further relief other than for a decree of mere declaration of title.

Apart from the fact that in such a suit the plaintiff was bound to establish fraud or want of
jurisdiction on the part of the Collector, to grant a Parcha in favour of the tenant, the
Collector was a necessary party. In absence of the Collector, therefore, the suit could not
have been decreed. We, therefore, have no hesitation to hold that the High Court wrongly
answered the substantial question of law framed by it. The judgments and decrees passed
by the High Court and the Courts below are, therefore, set aside and the appeal is
allowed. No costs.