Khushi Ram

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

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 … Continue reading →