Alternative relief of possession in a declaratory suit
basavaraj shiromani
(Querist) 18 September 2012
This query is : Resolved
Sir,
A muslim lady was owned a house in her name. she was giving it to the different tenants on hire. property was stading in her name. Subsequently in the year 1990 a third person called as B had got entered his name on the strength of an registered exchange deed as if he exchanged his properties to the son of muslim lady by name C. But no property belongs to B was transfrred in the name of muslim lady or in the name of her son.
Now she filed a suit for declaration, declaring that she is the owner of the suit house. She is also claimed a consequential relief of injunction and an alternative relief of possession, if the court found not to be in possession etc.
what are the legal consequences. in this case ?
Jeevesh
(Expert) 18 September 2012
Not on the merits/demerits of facts of case as facts stated are inadequate.
Ld. Mr. Shiromani,
Their is a difference between main relief and alternative relief. If the court cannot grant main relief, than only it can consider the question that whether the plaintiff is entitled to alternate relief or not. Both cannot be granted simultaneously.
Now coming to your case problem if the main relief of declaration is granted & simultaneously court finds that the plaintiff is not in possession than the plaintiff would be owner though without possession. That is the relief would be incomplete.
What i mean to say is a mere declaration is not enough. You have to claim possession as a part of main relief & not alternatively even though the relief of possession is claimed only after court finds that plaintiff is not in possession.
Refer to O.7 R.7 of CPC & the commentary on main & alternative relief.
niranjan
(Expert) 19 September 2012
If the property was transferred in 1990,how she could not file suit within time.If she did not know about this transfer who was collecting rent for all these years? If till filing of the suit she was collecting the rent,she could be in possession of the property and so there is no need to ask for possession,but if pending suit,deft.submits evidence of his possession,collecting rent etc. then further relief of possession is necessary.It cannot be said alternative but it is further relief.
J K Agrawal
(Expert) 19 September 2012
In this query I do not see any alternative relief. The plaintiff is seeking declaration ( She believe herself in possession of property) and seeking possession in case she is dispossessed during suit. So the suit and relief is perfact.
Hope a success.
