Gian Kaur Vs Raghubir
Singh
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.
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 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 That suit was withdrawn on 1.12.1993 without any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:
a. Whether Khushi Ram has
executed any will dated 12.4.1990? OPP
b. Whether the Plaintiff
is owner in possession of the Suit land? OPP
c. Whether the Plaintiff
is entitled to the declaration as prayed for? OPP
d. Whether the Suit is not
maintainable in the present form? OPD
e. Whether the jurisdiction
of the Civil Court is barred? OPD
f. Whether the Suit
property is joint Hindu undivided property? If so, its effect? OPD
g. Whether the Suit is
not properly valued? OPD
h. 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 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 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 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 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 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.
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