Suit for Declaration Without Possession Is Not Maintainable When Plaintiffs Admit Defendant's Possession: Punjab & Haryana High Court

In a crucial reaffirmation of the law under Section 34 of the Specific Relief Act, 1963, the Punjab and Haryana High Court has held that a suit for declaration of ownership cannot be sustained without seeking consequential relief of possession, when the plaintiffs are admittedly out of possession of the disputed property. Justice Ramesh Kumari, deciding a Regular Second Appeal, reversed the First Appellate Court’s decree in favour of two daughters of the deceased owner, restoring the trial court’s dismissal of the suit.

The case arose from a dispute concerning the ownership of a residential property in Village Kainpur, District Ropar, which had belonged to Swaraj, father of the plaintiffs. While the daughters claimed succession-based ownership after Swaraj’s death in 1982, the defendants relied on sale deeds executed by Swaraj’s sons in 1980, claiming possession and subsequent construction of a house over the land.

“Transfer of a Mere Expectancy Does Not Confer Ownership—Sale by Heirs During Father’s Lifetime Is Void”

The key legal battle revolved around two sale deeds dated 28.07.1980, executed by Tarsem Lal and Naresh Kumar—sons of Swaraj—in favour of Mool Raj, one of the defendants. Swaraj, however, was still alive at the time of the sale and continued to be the undisputed owner of the property until his death in 1982. The daughters, Raj Dulari and Shakuntla Devi, challenged the sale, claiming that the vendors had no title to convey.

The High Court accepted that the sons, at the time of sale, had no transferable interest, holding:

“They had only a chance to inherit the estate of Swaraj. Such a mere possibility or expectancy is clearly excluded from the definition of transferable property under Section 6(a) of the Transfer of Property Act, 1882.”

Further rejecting the defendants’ plea for protection under Section 43 of the Transfer of Property Act, the Court noted:

“Since the defendants themselves admitted in their written statement that Swaraj was the owner at the time of sale, they cannot claim to be transferees in good faith. Section 43 protection does not apply where the transferee has notice that the transferor has no title.”

“Plaintiffs Not in Possession, Construction Existed Prior to Suit—Declaratory Decree Without Possession Barred Under Section 34”

A significant finding of the Court was the plaintiffs’ admission that they were not in possession of the property, and that a house had been constructed and occupied by defendant Mool Raj. Though the First Appellate Court had relied on the Local Commissioner’s report to infer that the construction was recent and done during the pendency of the suit, the High Court found otherwise:

“The Local Commissioner, in his cross-examination, admitted that he could not specify the age of the construction—whether it was 6 months, 1 year, or 4 years old. His vague inference cannot override the plaintiffs’ own admissions.”

Justice Kumari noted that plaintiff Raj Dulari had clearly stated in cross-examination:

“There are three rooms, one kitchen, one bathroom along with staircase and cattle shed constructed by Mool Raj… Mool Raj is residing there.”

Thus, relying on authoritative precedents including Ram Saran v. Ganga Devi, AIR 1972 SC 2685; Vinay Krishna v. Keshav Chandra, AIR 1993 SC 957; and Muni Lal v. Oriental Insurance Co., AIR 1996 SC 642, the Court ruled:

“A mere declaratory relief cannot be granted when the plaintiffs were admittedly out of possession. The proviso to Section 34 bars such suits unless possession is also claimed.”

“Sale by Sons Who Later Acquired Title Validates Transfer Only to the Extent of Their Share—Not Entire Property”

The High Court acknowledged that after Swaraj’s death in 1982, his estate devolved upon his legal heirs—two daughters and two sons. While the plaintiffs claimed complete ownership through succession, the Court clarified:

“Succession does not remain in abeyance. Tarsem Lal and Naresh Kumar, though alive at the time of Swaraj’s death, also inherited a share. Therefore, though their pre-death sale deeds were invalid initially, their subsequent acquisition of share validates the transfer to that extent.”

This view aligns with the doctrine of feeding the estoppel under Section 43, but only partially. As the sons’ share in the estate materialised after Swaraj’s death, the defendant-vendee Mool Raj could hold valid title only over the proportionate share that eventually vested in the vendors, not over the entire property.

Still, since the plaintiffs filed a declaratory suit for the entire property without acknowledging or carving out such distinction, and crucially, without seeking possession, the Court held the entire suit to be defective and unsustainable.

“Court Cannot Grant Relief Beyond What Is Sought—Injunction Without Title Cannot Be Granted”

The High Court was critical of the First Appellate Court for granting permanent injunction and declaration without examining whether the plaintiffs had clear title and possession. It observed:

“The plaintiffs must stand on their own legs. They cannot rely merely on the weakness of the defendants’ case. In the absence of proven possession and clear title, no injunction can be granted.”

The Court noted that the plaintiffs themselves stated there was a compromise effort in the Panchayat, where the defendant had agreed to pay ₹8,000 for the land—suggesting recognition of the defendant’s possession and investment in the property.

Appeal Allowed, Suit Dismissed—Declaratory Relief Without Possession Unsustainable

Summing up its judgment, the Punjab & Haryana High Court held:

“Declaratory relief cannot be granted where plaintiffs were not in possession, and no consequential relief was sought. Construction on the property pre-dated the suit and plaintiffs’ admissions establish the defendants’ long-standing possession.”

The Court allowed the second appeal, set aside the decree of the First Appellate Court, and restored the dismissal of the civil suit by the Trial Court. The plaintiffs’ claim for declaration of ownership and injunction was thus rejected, and no costs were awarded.

Date of Decision: 14 November 2025