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  

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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 That suit was withdrawn on 1.12.1993 without  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:

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“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  

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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  

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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  

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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  

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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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