Whether suit for declaration simplicitor is maintainable without claiming consequential relief?

Whether suit for declaration simplicitor is maintainable without claiming consequential relief?

   In denouement, it can be stated that the judgment and decreein O.S.No.157 of 2003 and those in the counter claim preclude the plaintifffrom asserting his possession over the property. Prayer in the suit for prohibitory injunction is not maintainable by virtue of res judicata, bar underOrder IX Rule 9 of the Code and operation of Section 37(2) of the SpecificRelief Act. If that be so, the suit for declaration could be regarded only asone without seeking a consequential relief, which naturally flows from thesubstantive relief. In the absence of a prayer for recovery of possession of
the property on the strength of title, the plaintiff cannot maintain a suit for
declaration simplicitor. The suit is bad for non-joinder of necessary parties.
From the facts proved, it is seen that the suit should have been institutedwithin three years from the date when the right to sue first accrued.
Therefore, the suit is barred by limitation.

IN THE HIGH COURT OF KERALAAT ERNAKULAM

                                                       
PRESENT:

                            MR. JUSTICE A.HARIPRASAD

                  6TH DAY OF JANUARY 2017
                            RSA.No. 855 of 2016
      

                E.N CHANDRAN
             Vs
                VALSAN MATATHIL
              

              Concurrent findings by the courts below in a suit for declaration
and consequential permanent prohibitory injunction reliefs are challenged
in this second appeal. Both the courts below found in favour of the plaintiff's
case and decreed the suit. The defendant is in appeal. For the sake of
convenience and clarity, the parties are hereinafter referred to as the
plaintiff and defendant.

       2.     Relevant facts, in nutshell, are as follows: Plaint schedule
property, inclusive of an aided school, by name Poomangalam U.P.School,
originally belonged to M.P.Kunhikannan.                 On his death the property
devolved on his wife Lakshmi and children, Indira, Madhusoodanan,
Saraswathi and others. Deceased Kunhikannan's children released their
entire rights over the property and school to their mother Lakshmi on
09.06.1981. Lakshmi thereby became the absolute owner in possession of
the plaint schedule property. Lakshmi thereafter gifted the plaint schedule
property to her daughter Indira as per a registered gift deed dated
03.11.1999 (Ext.A3). Having accepted the gift, the property devolved on
Indira. Later, Indira's brother Madhusoodanan caused Lakshmi to executea registered sale deed on 15.11.2002 in his favour in respect of the verysame property. Ext.B1 is that document. It was also realised by Indira thatLakshmi had executed another deed on 26.10.2002 (Ext.B11), purportingto cancel Ext.A3 gift deed.

       3.       Indira, then filed O.S.No.157 of 2003 before the Munsiff'sCourt, Taliparamba for a permanent prohibitory injunction relief against hersiblings,viz., Madhusoodanan and Saraswathi.          In the suit, she hadobtained an interim order of injunction. In the written statement, one of the

The trial court in its judgment has found that the plaintiff in O.S.No.157 of

2003 has preferred an application to implead the present plaintiff as the 2nd

plaintiff therein. It would go to show further that she was aware of the

nature of dispute subsisting between herself and Madhusoodanan and also

the existence of Exts.B1 and B11. It was also found by the courts below

that execution of Exts.B1, B2 and B11 was known to the plaintiff and his

predecessor-in-title at the appropriate time. O.S.No.157 of 2003 was

dismissed and the counter claim was decreed on 08.02.2008. Much before

that, the plaintiff was aware of Ext.B1 dated 15.11.2002 and Ext.B2 dated

02.07.2005. He obtained the right as per Ext.A4 dated 02.08.2005. As

observed by the courts below, the factum of execution of the objectionable

documents was known to the plaintiff three years before the institution of

the suit. Going by Article 58 of the Limitation Act, to obtain any declaration

other than those referred to in Articles 56 and 57, a suit should be filed

within three years when the right to sue first accrued. It is clear that the

present suit filed on 21.05.2010 is barred by limitation. Therefore, this

question is decided against the plaintiff.

       Question 5

       43.      Learned counsel Sri.P.B.Krishnan, relying on Section 7(5) of

the Kerala Education Act, contended that property of an aided school will

be deemed to be in the possession and control of the manager. As

mentioned above, by virtue of the orders passed by this Court, the

defendant is functioning as manager.         He, therefore, argued that the

plaintiff is not entitled to get any prohibitory injunction as prayed for

because it will conflict with the above mentioned provision in the Kerala

Education Act. This contention cannot be accepted for more than one

reason. The defendant functions as manager only on the basis of orders of

this Court and it can be regarded only as a transitory arrangement. It had

been made clear by this Court that the claim of managership raised by the

contesting parties would directly depend on the outcome of a properly

instituted suit. The defendant cannot claim that he is the manager of the

school by any independent authority. Secondly, in this suit, the defendant

cannot get his right to manage the school established because his remedy

lies in an appropriate action. What is to be decided in the suit, according to

its form and substance, is the right of the plaintiff to get the declaratory and

injunction decrees prayed for. Therefore, this question is decided against

the defendant.

       Question 6

       44.      Another strong contention raised by the defendant is that the

suit is bad for non-joinder of necessary parties. As rightly understood by

the courts below, a necessary party is a party without whom an effective

decree cannot be passed in a suit. In this case, the defendant has raised a

specific plea in the written statement that the Trust is a necessary party to

the suit. According to the defendant, he has no personal interest over the

property. Ext.B2 is an assignment deed executed by Madhusoodanan in

favour of the Trust. In the document, the registration number and address

of the Trust were specifically shown. Recitals in the assignment deed

would show that the sale was not for any individual benefit of the

defendant, but it was intended to benefit the Trust. From the cause title

shown to the plaint, it can be seen that the defendant is impleaded in his

personal capacity. In spite of raising a specific contention of non-joinder of

necessary parties, the plaintiff failed to implead the Trust, which could only

be treated as a necessary party, as Ext.B2 is in favour of the Trust. The

decree in the suit will certainly affect the interests of the Trust. Therefore,

the reasoning stated by the trial court and the lower appell