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Specific Relief Act, 1963 – s. 34 – Suit for declaration – Decreed by trial court and first appellate court – However, set aside by High Court on a finding that suit simpliciter for declaration is not maintainable u/s. 34 and the plaintiff should have filed a suit for possession – Held: Finding of the High Court that suit simpliciter for declaration is not maintainable u/s. 34, is not sustainable – In the suit, apart from a prayer for declaration there was a consequential prayer for a decree for permanent injunction as also an alternative prayer for decree for possession – Also, the issue relating to the maintainability of the suit in the present form was raised before the trial court and was not proved by the defendant and as such was decided against the defendant – Said issue was not raised before the first appellate court – The suit is not hit by s. 34 – Order of the High Court set aside and that of the first appellate court, restored. The trial court and the first appellate court decreed the suit for declaration filed by the appellant in respect of the land in question. In the Second Appeal, the High Court held that the suit simpliciter for declaration is not maintainable under Section 34 of the Specific Relief Act, 1963 and the appellant should have filed a suit for possession. Therefore, the appellant filed the instant appeal. =Allowing the appeal, the Court HELD: 1.1 From the plaint, it appears, prima facie, that apart from making a prayer for declaration there is also a consequential prayer for a decree for permanent injunction restraining the defendant from alienating the suit property or interfering in peaceful possession of the plaintiff. There is an alternative prayer for decree for possession also. From the prayers made in the plaint, it is clear that the consequential relief of permanent injunction was prayed, and before the trial court, the issue relating to the maintainability of the suit in the present form was raised but the same was not pressed by the defendant nor was any such question raised before the first appellate court. In that view of the matter, the finding of the High Court that the suit is merely for declaration and is not maintainable under Section 34 of the Specific Relief Act, cannot be sustained. Thus, the suit is not hit by Section 34 of the Specific Relief Act, 1963. [Paras 8, 9, 10, 11 and 13] [491-B-E-G] 1.2 The High Court set aside the concurrent finding of the courts below on an erroneous appreciation of the admitted facts of the case and also the legal question relating to Section 34 of the Specific Relief Act, 1963. Therefore, the order of the High Court is set aside and that of the first appellate court is restored. [Paras 14 and 15] [491-H; 492-A-B] Ram Saran and Anr. vs. Ganga Devi AIR 1972 SC 2685 – distinguished. Case Law Reference: AIR 1972 SC 2685 Distinguished Para 6 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1142 of 2003. From the Judgment & Order dated 26.08.2002 of the High Court of Punjab and Haryana at Chandigarh in R.S.A. No. 1806 of 2000. Devender Mohan Verma for the Appellant

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REPORTABLE


 IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO(s).1142 OF 2003

GIAN KAUR Appellant (s)

 VERSUS

RAGHUBIR SINGH Respondent(s)

 J U D G M E N T

GANGULY, J

1. This appeal is directed against the judgment 

and order dated 26.08.2002 of the Punjab and 

Haryana High Court in Regular Second Appeal No.1806 

of 2000. By the judgment under appeal, the Hon'ble 

High Court reversed the judgment and decree of the 

Court below and held that the suit for declaration 

that the plaintiff is the owner in possession of 

land measuring 16 kanals situated in village 

Ajnoha, is not maintainable. The plaintiff is in 

appeal before this Court. The material facts of the 

case are as under.

 1

2. Labhu, an agriculturist of village Sarhola 

Mundia, Tehsil & District Jalandhar, Punjab had 

three sons, namely, Khusi Ram, Raghubir Singh and 

Kashmir Singh and a daughter called Pritam Kaur. 

The shares of the sons were partitioned by the 

Revenue Authorities as early as on 30.4.1990 and 

share of Khushi Ram was separated from Raghubir 

Singh each getting 16 kanals. Khushi Ram executed a 

Will in favour of Gian Kaur and appointed her as 

his Mukhtiar-e-am. Subsequently, relations between 

them became strained and he cancelled his Will and 

his Power of Attorney. The appellant is daughter of 

Pritam Kaur and Khushi Ram was living with Pritam 

Kaur in her house and Pritam Kaur was serving him. 

Both Gian Kaur and Khushi Ram opened a joint 

account in a Bank and out of love and affection 

Khushi Ram subsequently executed a Will dated 

12.4.1990 in favour of the appellant-plaintiff. 

Under these circumstances, the appellant claimed 

that she is in actual physical possession of the 

suit land. Even after a compromise was arrived at 

 2

between the parties on 2.10.1991, the defendant 

brought a suit for declaration challenging the 

Will. That suit was withdrawn on 1.12.1993 without 

any permission of the Court to file a fresh a suit. 

After the withdrawal of the aforesaid suit, the 

filing of the present suit for declaration and 

permanent injunction became necessary as the 

defendant threatened to dispossess the plaintiff 

from the suit property.

3. Before the trial Court, the stand of the 

defendant was that the property is a Joint Hindu 

Family property and the plaintiff has no cause of 

action to file the suit. It was also the contention 

of the defendant that Khushi Ram was a saintly 

person and wanted to donate land to a religious 

institution. The relationship between Khushi Ram and 

the plaintiff was admitted but the fact of opening a 

joint bank account with the plaintiff was denied. 

The trial Court framed about eight issues in the 

matter. Those issues are as follows:

 3

 "1. Whether Khushi Ram has executed any 

 will dated 12.4.1990? OPP

 2. Whether the Plaintiff is owner in 

 possession of the Suit land? OPP

 3. Whether the Plaintiff is entitled to the 

 declaration as prayed for? OPP

 4. Whether the Suit is not maintainable in 

 the present form? OPD

 5. Whether the jurisdiction of the Civil 

 Court is barred? OPD

 6. Whether the Suit property is joint Hindu 

 undivided property? If so, its effect? 

 OPD

 7. Whether the Suit is not properly valued? 

 OPD

 8. Relief."

4. As would appear from the issues set out above 

that issue relating to maintainability of the suit 

was framed and on that issue finding of the trial 

Court is that the issue was not proved by the 

defendant and that issue remained unproved and as 

such was decided against the defendant. 

5. From the judgment of the First Appellate Court 

also it appears that the issue of maintainability 

was not raised and the First Appellate Court 

affirmed the findings of the trial Court and 

dismissed the appeal, inter alia, holding the 

 4

application filed by the defendant for leading 

additional evidence is also without any merit. 

6. Hon'ble High Court while entertaining the 

Second Appeal against such concurrent finding, came, 

inter alia, to a finding that the suit simpliciter 

for declaration is not maintainable under Section 34 

of the Special Relief Act and the plaintiff should 

have filed a suit for possession. By referring to a 

judgment of this Court in the case of Ram Saran and 

another vs. Ganga Devi - AIR 1972 SC 2685, the High 

Court dismissed the suit and allowed the appeal.

7. The plaint which as been produced before this 

Court by way of additional documents contained the 

following prayer:

 "a) A decree of declaration to the effect that 

 the plaintiff is owner in possession of 16 

 Kanal 0 Marla of land fully detailed and 

 described in headnote of plaint and 

 situated in village Ajnoha H.B. No.52, P.S. 

 Mahilpur, District Hoshiarpur as entered in 

 latest jamabandi, in view of Will dated 

 5

 12.4.90 executed by Khushi Ram s/o Ram 

 Ditta in her favour;

 b) With consequential relief decree for 

 permanent injunction restraining the Deft 

 not to alienate the suit property or 

 interfering in peaceful possession of 

 plaintiff therein; and

 c) In the alternative decree for possession if 

 the plaintiff is dispossessed by Deft 

 during pendency of suit;

 may kindly be passed in favour of the plaintiff 

 and against the Deft with costs."

8. It appears, prima facie, that apart from 

making a prayer for declaration there is also a 

consequential prayer for a decree for permanent 

injunction restraining the defendant from 

alienating the suit property or interfering in 

peaceful possession of plaintiff therein. 

9. There is an alternative prayer for decree for 

possession also. 

10. From the prayers made in the plaint, it is 

clear that the consequential relief of permanent 

injunction was prayed and before the Trial Court 

 6

the fourth issue relating to the maintainability of 

the suit in the present form was raised but the 

same was not pressed by the defendant nor was any 

such question raised before the First Appellate 

Court.

11. In that view of the matter, the finding of the 

High Court that the suit is merely for declaration 

and is not maintainable under Section 34 of the 

Specific Relief Act cannot be sustained. The High 

Court's reliance on a decision of this Court in Ram 

Saran (supra) is also not proper.

12. From the decision in Ram Saran (supra), it is 

clear that in that suit the plaintiff merely 

claimed a declaration that they are the owners of 

the property and they have not sought for 

possession of the said properties.(see para 4)

13. For the reasons aforesaid, this Court holds 

that the suit is not hit by Section 34 of the 

 7

Specific Relief Act. The decision in Ram Saran 

(supra) was rendered on totally different facts and 

cannot be applied to the present case.

14. We are, therefore, constrained to observe that 

the High Court reversed the concurrent finding of 

the Courts below on an erroneous appreciation of 

the admitted facts of the case and also the legal 

question relating to Section 34 of the Specific 

Relief Act.

15. We, therefore, allow the appeal set aside the 

order of the High Court and restore that of the 

First Appellate Court. There shall be no order as 

to costs.

 .................J.

 (G.S. SINGHVI) 

 .................J.

 (ASOK KUMAR GANGULY)

NEW DELHI,

FEBRUARY 03, 2011. 8

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