Well settled principle of law that no declaration of title can be passed without impleading the real owners and that none could confer a better title in property than he himself possessed.

Suit for Declaration.

For seeking a declaration under section 42 of the Specific Relief Act,1877 through a declaratory decree, a pre-existing right can be declared by the Court and a new right cannot be created.

It isby now a well settled principle of law that no declaration of title can be passed without impleading the real owners and that none could confer a better title in property than he himself possessed.

When the plaintiff claimed adeclaration of title, without a pre-existing right, suit for declaration was not competent and the courts below should not have granted a declaratory decree when no pre-existing rights were available withthe respondent-plaintiff in the suit "Ihata". If he was in possessionof a portion of suit "Ihata" and was wrongly dispossessed by the petitioners-defendants who are admittedly in possession of a portion of suit "Ihata", the only remedy available with him was to file a suit under section 9 of the Specific Relief Act, 1877 and not a suit for declaration under section 42 of the Act, ibid, or he couldfile a suit for possession under section 8 of the Specific Relief Act,1877. Since the respondent-plaintiff has failed to prove any pre-existing right to be "declared" by the court, the contention regarding non—service of notice under Section 80 of CPC becomes irrelevant and does not call for adjudication.

C.P.1890-L/2017
Muhammad Jameel, etc v. Abdul Ghafoor
Mr. Justice Amin-Ud-Din Khan
29-09-2021