1. This appeal by the plaintiff is against a reversing judgment.

2. Admittedly, Narayan Prasad Patnaik and Umasankar Patnaik (respondents 4 and 5 who were defendants 1 and 2 in the suit) were the owners of the suit land measuring 68 decimals in plot No. 1653 under Khata No. 101 of village Iswarpal, Samil Kadelipal and they executed a registered sale deed dated 6-5-1971 (Ext. 1) for a consideration of Rupees 3,000/- in favour of Bela Bewa, the mother of the plaintiff-appellant Dulan Dai. Thereafter, they cancelled the said sale deed on 30-4-1973 by Ext. 1 on the ground of non-payment of consideration and re-sold the suit land in favour of respondents 1 to 3 (Defendants 3 to 5) by a registered sale deed dated 4-2-1977 (Ext. 8). There is also no controversy that Bela Bewa died in 1976.

3. The case of the appellant-plaintiff is that before execution of the registered sale deed in favour of her mother, there was a written contract for sale of the suit land on 12-3-1971 between the vendors and the vendee on payment of Rs. 1,700/- by the vendee to the vendors and after execution of such contract for sale the vendors delivered possession of the suit land to the vendee on 5-5-1971. It is her further case that her mother continued to remain in possession till her death whereafter she herself remained in possession and that since after execution of the registered sale deed Ext. B in their favour the respondents 1 to 3 (defendants 3 to 5) created disturbance in their possession, she brought the suit merely for declaration of her right, title and interest over the suit land.

4. All the defendants have filed a joint written statement denying the title and possession of the plaintiff and her mother over the suit land. They have denied about any contract for sale between the defendants 1 and 2 on the one hand and the mother of the plaintiff Bela Bewa on the other. According to them, defendants 1 and 2 executed the registered sale deed in favour of Bela Bewa on her promise to pay the consideration amount of Rs. 3,000/- within a short period but since no consideration was paid for about two years, they cancelled the said deed and resold the same in favour of the defendants 3 to 5 and delivered possession of the same to them. In pursuance of the registered sale deed the defendants 3 to 5 having acquired title, the plaintiff was liable to be non-suited. The plea of bar of suit under the Limitation Act was also taken.

5. On the pleadings of the parties, as many as seven issues were originally framed but before commencement of hearing of the suit, an additional issue was framed touching the maintainability of the suit. The trial Court decreed the suit with the following findings:—

(i) There was a contract for sale and in pursuance thereof possession had been delivered, to the plaintiff's mother;

(ii) that title to the suit land passed to the mother of the plaintiff on execution and registration of the sale deed, Ext. 1; and

(iii) that since, the plaintiff was in possession of the suit land and prior to her, her mother was in possession, the suit was not hit by S. 34 of the Specific Relief Act, 1963 (for short, ‘the Act’).

6. The lower appellate Court reversed the decision of the trial Court and thereby dismissed the suit with the following findings:

(a) That there was no passing of consideration under Ext. 1 and as such, title to the suit land did not pass to the plaintiff's mother;

(b) that possession of the plaintiff and her mother was doubtful;

(c) that as the plaintiff had not prayed for cancelling the sale deed in favour of defendants 3 to 5, the declaration sought for was futile and hence the suit was hit by S. 34 of the Act; and

(d) that defendants 1 and 3 having cancelled the sale deed (Ext. 1) on 30-4-1973 and the suit having been filed on 10-5-1979, the suit was barred by time under Art. 58 of the Limitation Act.

Being aggrieved by the reversing judgment and decree of the appellate Court, the present appeal has been filed.

7. Shri S.K Padhi, the learned counsel for the appellant has raised the following contentions:—

(1) The suit having been filed well within three years from the date of execution of the sale deed Ext. B by which a cloud of doubt has thrown upon the title of the plaintiff, the suit was not barred by limitation and the finding to the contrary by the appellate Court is erroneous.

(2) There was due passing of consideration under Ext. 1 and even if it is taken that there was no passing of consideration as found by the appellate Court, title had passed to the mother of the plaintiff under Ext. 1 and finding to the contrary by the appellate Court is wrong.

(3) In view of the fact that no title passed to the defendants 3 to 5 under Ext. B, the plaintiff was not obliged to pray for setting aside the sale deed and since according to the appellate Court the possession of the plaintiff and her mother over the suit land was doubtful, the suit could not have been dismissed without any prayer for consequential relief.

(4) Since the defendants did not plead in their written statement that the declaratory suit was not maintainable for want of consequential relief, even if it is found at present that without any prayer for consequential relief, the suit was hit by S. 34 of the Act, the matter is liable to be remanded to the trial Court for affording a chance to the plaintiff to make necessary amendment in the prayer portion of the plaint.

8. As regards the first contention there is no dispute at the bar that Art. 58 of the Limitation Act, 1963 applies to the present suit and according to that article a declaratory suit shall have to be filed within three years from the date when the right to sue first accrues. The plaintiff having alleged in paragraph 14 of the plaint that the cause of action for the suit arose on 30-4-1973 when the defendants 1 to 5 executed the deed of cancellation and again in 1977 when the registered sale deed Ext. B was executed in favour of the defendants 3 to 5, the appellate Court came to hold that the cause of action first accrued on 30-4-1973 and the suit having been filed three years from that date, was barred by time. The learned counsel appearing for the respondents is unable to support this finding. The deed of cancellation Ext. A being an unilateral document has absolutely no force in the eye of law and as such, it can never be said that the cause of action first accrued on 30-4-1973, as held by the appellate Court. The suit having been filed on 10-5-1979 which is well within three years from the date of execution of the registered sale deed Ext. B in favour of the defendants 3 to 5 which is 4-2-1977, it can never be said that the suit is barred by time. Accordingly, the first contention raised on behalf of the appellant is accepted and it is held that the suit could not have been dismissed by the lower appellate Court as being barred by time.

9. As for the second contention, it may be stated that the final Court of facts having clearly recorded a finding that there was no passing of consideration under Ext. 1, this Court cannot go into that question to record a finding as to whether there was due passing of consideration or not. Then the question arises whether for non-passing of consideration, it was rightly held that there was no passing of title in favour of the mother of the plaintiff, the vendee.

10. When a sale deed is executed and registered there is a ‘prima facie’ transfer of title to the vendee. The mere non-payment of consideration will not arrest the passing of title as a sale of immovable property may be effected in exchange for the price paid, or promised to be paid. But whether the vendor really intended to transfer ownership by mere execution and registration, or contracted to do so only after receipt of consideration as a condition precedent, would depend upon the terms of the contract between the parties. If there is a stipulation in the sale deed itself that title to and ownership of the property would vest in the vendee after payment of the purchase money the reasonable inference would be that until the condition is fulfilled there is no effective transfer of ownership. In such cases, intention is not to transfer ownership unless consideration is paid. To gather the intention of the parties the Court is bound to look to the terms of the contract and not to speculate as to the intention from the evidence de hors the instrument. The only evidence that the Court will look into as that afforded by what the parties have said and evidence aliunde is not admissible to prove their intention if the language employed is unambiguous. This view has also been taken by this Court in several decisions and to cite few of them are Gurubari Lenka v. Dulani Thakurani, AIR 1971 Orissa 147; Musai Puhan v. Ambika Bewa, 1972 (1) CWR 338; Bauribandhu Naik v. Radhamoni Mohanty, 1975 (1) CWR 186 and Umakanta Das v. Pradip Kumar Ray, (1986) 61 CLT 480 : (AIR 1986 Orissa 196).

11. In this case the english rendition of the sale deed may be noted which is as follows:—

“Having sold the scheduled land on receipt of Rs. 3,000/- we have conferred possession and title on the vendee with effect from today after divesting ourselves.”

This recital in the sale deed admits of no doubt that the defendants 1 and 2 had intended to transfer the title in favour of the vendee on the very date of execution of the registered sale deed. That being so, title to the suit land having passed to the mother of the plaintiff on the date of execution of the registered sale deed, Ext. 1, the finding of the appellate Court that for non-passing of consideration there was no passing of title cannot be accepted. It follows, therefore, that the suit could not have been dismissed for want of title of the plaintiff.

12. In order to appreciate the third contention, S. 34 of the Act to be understood correctly and the same reads as follows:—

“34. Discretion of Courts as to declaration of statute 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 some one who is not in existence, and for whom, if in existence, he would be a trustee.”

13. The proviso to the Section does not permit a suit for more declaration without any further relief. The object of the proviso is to avoid multiplicity of suit and to prevent a person from getting a mere declaration of his right in one suit and to resort to another remedy which is already available to him. Another object of the proviso is to protect the revenue from having a suit brought without the proper ad valorem Court fee having been paid inasmuch as Court fee for a mere declaration is a nominal fee whereas if consequential relief is asked for, it would be ad valorem.

14. From a reading of the proviso along with the main Section, it is clear that further relief contemplated in the proviso is a relief which was available to the plaintiff at the time of institution of the suit and which he omitted to ask for. The further relief must be a relief in relation to the legal right as to property which the plaintiff is entitled to and it must be a relief appropriate to and necessarily consequent on the right asserted. This view expressed by us about the object of the proviso finds support from the decision in Anirudha Padhan v. Chhai Padhan, AIR 1981 Orissa 74. In this case, after obtaining the registered sale deed Ext. 1 the plaintiff's mother did not take any step to get the land mutated in her name and on the other hand, as observed by the appellate court, the defendants 3 to 5 got the suit land mutated in their names and the objection filed by the plaintiff in that mutation proceeding was rejected. After such mutation, the defendants 3 to 5 also got the Settlement record-of rights corrected in their names as per Ext. C. Again, there were criminal cases between the parties with respect to the suit land inasmuch as the defendant No. 4 had started G.R Case No. 75 of 1977 in the court of the S.O.J.M, Hindol under Ss. 447 and 426 read with S. 34, I.P.C against the son and husband of the plaintiff as per Ext. 4 and the plaintiff's husband had filed two complaint cases under S. 379/34, IPC against the defendants 3 and 5 and others vide Exts. G and J in the same Court. On a consideration of all these facts, there can be no manner of doubt that there was scramble for possession between the parties on the date of the suit. Matter would have been different if there would have been an isolated act of trespass on the suit land by the defendants but when according to the plaintiff's own showing the defendants 3 to 5 reaped away paddy crops twice from the suit land and her objection in the mutation proceeding started at the instance of the defendants 3 to 5 was rejected, she was obliged to seek for consequential relief of confirmation of possession or permanent injunction, if not for recovery of possession. Being able to seek such further relief, when the plaintiff omitted to do so, the suit was hit under S. 34 of the Act, as found by the appellate court.

15. Coming to the question of remand, it is opposite to note, as already indicated earlier, that an additional issue was framed by the trial court before commencement of hearing of the suit regarding maintainability and the issue as framed was — “Is the suit maintainable?”. In the written statement in para 1, the defendants made the following averments regarding maintainability:— “That the suit is false, frivolous and vexatious and not at all maintainable in law and facts.” Such averment is quite vague because for various reasons a suit becomes not maintainable, to put a few of them are payment of insufficient court fee, non-joinder of necessary parties and praying for a declaratory relief only where the plaintiff is able to ask for other relief at the date of the suit. In face of such vague averment in the written statement, the trial court should not have framed the additional issue in the way it has framed. Issues are ordinarily framed when there are disputes between the parties to a litigation to render decisions on those disputes for enabling the court in deciding the lis in its proper perspective and effectually. Framing of issues also put the parties at guard to put forth the entire evidence at their command for a just decision thereon. In this case, the issue as to the maintainability had not been properly framed by the trial court. Nevertheless, the learned counsel for both sides advanced argument after conclusion of hearing of the suit as to whether the declaratory suit was maintainable in view of the proviso to S. 34 of the Act and while the trial court came to hold that the suit was maintainable because the plaintiff was in possession of the suit land, the appellate court reversed such finding with an observation that the possession of the plaintiff and her mother was doubtful. It has already been held above that the suit was not maintainable because the plaintiff was able to ask for other relief for declaration. In view of the fact that there was no averment in the written statement as to how the suit was not maintainable and that the additional issue framed by the trial court is vague the question arises whether the matter should be remanded to the trial court to afford a chance to the plaintiff to amend the plaint or the appeal should be dismissed. In S. Bhagat Singh v. Satnam Transport Co. Ltd. AIR 1961 Punjab 278, it has been held that where a suit is barred by the proviso to S. 42 of the Old Specific Relief Act (now proviso to S. 34 of the Act) the plaintiff should be given a chance to amend the plaint and include the prayer on the consequential relief and after such opportunity to amend the plaint is given to the plaintiff if he fails to avail that opportunity, then the suit has to be dismissed. In Mst. Rukhmabai v. Lala Laxminarayan, AIR 1960 SC 335 it has been held as under:—

“A plea that the plaintiff asked for a bare declaration though he was in a position to ask for further relief within the meaning of S. 42 and hence the suit should have been dismissed in limine should be raised at the earliest point of time, in which event the plaintiff could ask for necessary amendment to comply with the provisions of S. 42. It is a well-settled rule of practice not to dismiss suits automatically but to allow the plaintiff to make necessary amendment if he seeks to do so.”

(Placitum — C)

16. Taking into consideration of these two decisions, I hold that when there were defects in the written statement and in framing the issue, the matter is liable to be remanded to the trial court.

17. In view of the aforesaid discussions, the appeal is allowed and the matter is remanded to the trial court to afford the plaintiff an opportunity to make necessary amendment to the plaint so as to include the prayer for consequential relief and to pay ad valorem court fee thereon. If amendment is made and ad valorem court fee is paid, then the trial court has to decree the suit inasmuch as the plaintiff's title over the suit land is not lost in any way and if amendment is not made and ad valorem court fee is not paid even after affording such a chance, then the suit has to be dismissed. Cost of this appeal will abide the final result of the suit.

Appeal allowed.