Introduction :

Decree means a formal expression of adjudication (the process of trying and determining a case judicially) which determines the rights of parties.

Decree v. Judgement : A decree is a final order of a court in a suit. It closely related but not identical with ‘judgement’. The final decision in a proceeding is ‘decree’.

A ‘declaratory decree’ is a decree, declaratory of a right which is doubtful or which requires to be cleared. The object of ‘declaratory decree’ is to prevent future litigation by removing the the existing cause of controversy.

So, we can say that, a ‘declaratory decree’ resolves the legal uncertainty of the rights and status of the parties. Passing a ‘declaratory decree’ is discretion of court and getting  a ‘declaratory decree’ cannot be claimed as a right. A ‘declaratory decree’ confers no new right, it only clears up the doubts of the plaintiff’s status or title.

Section 34 and 35 of ‘The Specific Relief Act, 1963’ lay down the law relating to declaratory decrees.

Section 34 : Discretion of Court as to declaration of status or right :

Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief

PROVIDED that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Explanation: A trustee of property is a “person interested to deny” a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee.

Illustration :

(a) A is lawfully in possession of certain land. The inhabitants of a neighbouring village claim a right of way across the land. A may sue for a declaration that, they are not entitled to the right so claimed.

(b) A is in possession of certain property. B, alleging that he is the owner of the property, requires A to deliver it to him. A may obtain a declaration of his right to hold the property.

The object of the declaratory decree is, to protect the legal right and legal character of the owner from the adverse attack and to enjoy the legal character and legal right peacefully by owner.

Section 34 of the Specific Relief Act, 1963 enables a person to have his right or legal character declared by a Court of law and thus get rid of the doubts of his legal character or right.

Section 34 of the Specific Relief Act does not sanction every kind of declaration but only a declaration that, the plaintiff is entitle to any legal character to any right to property. Legal character is position recognised by law

To obtain the relief of declaration under section 34, the plaintiff must establish that,

i) The plaintiff is entitled to a legal character at the time of suit, or to any right as to any property,

ii) The defendant has denied or is interested in denying the character or title of the plaintiff, and

iii) The plaintiff is not in a position to claim a further relief consequential upon the declar-ation.

           If these conditions are satisfied, the plaintiff need not ask for any further relief than a mere declaration. But this declaration should not be made by court if he is entitled to further relief than a mere declaration of title and the plaintiff omits to do so.

While framing the plaint, the plaint must disclose,

i) the title or right claimed by the plaintiff,

ii) the circumstances in which the cloud was cast over the same or the same was denied or threatened,

iii) the prayer.

          The court while declaring title of the plaintiff cannot decline to adjudicate consequential questions of possession, removal of encroachments, demolition of encroaching structure upon a portion of the land to which the title of the plaintiff has been declared. (Phanidhar Kalita v. Saraswati Devi).

In Ram Saran v. Ganga Devi, the defendand was in possession of some of the suit properties and the plaintiffs in their suit did not ask for the possession of those properties. They merely prayed for a declaration that they were the owners of the suit properties. It was held that, the suit was not maintainable and was hit by section 42 of the Act of 1877 ( now section 34 of the Specific Relief Act, 1963)

In Gurdeara Sahib v. Gram Panchayat Village, Sirthala it was held that, ‘A declaration of ownership of land cannot be sought by the plaintiff on the basis of adverse possession. But a claim of ownership by adverse possession can be made by way of defence he is a defendant in proceedings against him.

Section 35 : Effect of declaration :

A declaration made under this Chapter is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the persons for whom, if in existence at the date of declaration, such parties would be trustees.

Section 35 lays down that a declaration made under this chapter i.e. chapter VI is binding only :

i) on the parties to the suit

ii) on persons claiming through them respectively e.g. widows or sons

iii) where any of the parties are trustees, on the persons for whom, if in existence at the date of declaration, such parties would be trustees.