Gian Kaur vs Raghubir Singh

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 That suit was withdrawn on 1.12.1993 without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