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Mere declaration without relief of recovery of possession not maintainable

In Badiya Vs. State, Rajasthan High Court held that the plaintiff, who was not in possession, had in the suit claimed only declaratory relief along with mandatory injunction. The plaintiff being out of possession, the relief of recovery of possession was a further relief which ought to have been claimed by the plaintiff. The suit filed by the plaintiff for a mere declaration without relief of recovery of possession was clearly not maintainable and the trial court has rightly dismissed the suit. The High Court neither adverted to the above finding of the trial court nor has set aside the above reasoning given by the trial court for holding the suit as not maintainable. The High Court in exercise of its jurisdiction under Section 100 C.P.C. could not have reversed the decree of the courts below without holding that the above reasoning given by the courts below was legally unsustainable. We, thus, are of the view that the High Court committed error in decreeing the suit.

A bare look at the said provision reveals that power can be exercised on the application of the plaintiff and after framing necessary issues, admittedly in the present case, neither any application has been filed nor any issue in this regard has been framed and, therefore, the provision has no application to the facts of the present case.

Article referred: http://lawkam.org/rajasthan/jodhpur-high-court-possession-badiya/14402/

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