High CourtDivision Bench2011-02-03Appeal allowed; High Court's order set aside; F...

Gian Kaur v. Raghubir Singh

Case / Petition Number:Civil Appeal No. 1142 of 2003

Neutral Citation:2011 (2) S.C.R. 486

Case Details & Bench

Court: High Court
Hon'ble Judges: G.S. Singhvi
Asok Kumar Ganguly
Judgment Date: 2011-02-03
Court Decision / Holding: Appeal allowed; High Court’s order set aside; the First Appellate Court’s decree restored; No order as to costs.
Final Disposition: Appeal allowed; High Court's order set aside; First Appellate Court's decree restored; No order as to costs for either party.

Parties to the Case

Appellants / Petitioners

Gian Kaur

Respondents

Raghubir Singh

Legal Representation & Advocates

Counsels for Petitioners

• Devender Mohan Verma

Case Synopsis & Summary

Gian Kaur v. Raghubir Singh deals with a land dispute where Gian Kaur claimed ownership in possession of land in Ajnoha village based on a Will dated 12.4.1990 executed in her favor by Khushi Ram. The suit in the Regular Civil Court sought a declaration of title, a permanent injunction restraining the defendant from alienating the property or disturbing the plaintiff’s possession, and an alternative prayer for possession if dispossessed during pendency. The trial court framed eight issues, including whether the Will existed and whether the plaintiff was owner in possession. The maintainability of the suit under Section 34 of the Specific Relief Act, 1963 was raised, but the defendant did not press this point, and the first appellate court did not decide it. The Punjab and Haryana High Court, in its Regular Second Appeal, held that a suit for declaration simpliciter is not maintainable under Section 34 and that the plaintiff should have filed a possession suit, relying on Ram Saran and Anr. v. Ganga Devi (AIR 1972 SC 2685). The Supreme Court allowed the appeal, holding that the plaint disclosed not merely a declaration but also a permanent injunction and a consequential and alternative prayer for possession. It held that the suit is not hit by Section 34. The High Court’s judgment was set aside and the first appellate Court’s decree restored, with no costs."

Provisions of Law Cited

Specific Relief Act, 1963, s. 34

Submissions & Arguments

Contentions of Appellants / Petitioners

Appellant Gian Kaur contends that the plaint seeks not merely a declaration but also consequential reliefs: a permanent injunction restraining alienation or interference with possession and an alternate decree for possession. Although maintainability under Section 34 was raised as a matter of form, the defendant did not press it and the first appellate court did not decide it. The High Court, in Second Appeal, treated the suit as one for declaration only and held it not maintainable under Section 34, relying on Ram Saran v. Ganga Devi (AIR 1972 SC 2685). The appellant argues that the suit was filed with a prayer for declaration and for permanent injunction, together with a possession contingency; therefore it cannot be said to be a suit for declaration simpliciter under Section 34. The Ram Saran principle does not apply to these facts since the present case features injunctive relief and a possession claim. The Court should reverse the High Court, restore the First Appellate Court’s decree, and dismiss the view that Section 34 bars relief, while keeping costs to be determined.

Contentions of Respondents

Respondent contends that the property is a Joint Hindu Undivided Family property and that the plaintiff has no actionable cause of action for declaration under Section 34. He argues that the suit for declaration without possession cannot be maintained under Section 34; the maintainability issue was raised at trial, and the High Court correctly applied the Ram Saran principle to dismiss. Emphasizing the Will and the Joint Family status, the respondent maintains that the plaintiff’s case relies on a declaration of title rather than possession, and the suit must be possession-based under Section 34. The respondent asserts the High Court’s reasoning is correct and should be sustained, preventing the declaration from forming the basis of an independent title suit. The defendant also contends the relief sought is primarily declaratory and the remedy lies in Section 34 only to the extent it is accompanied by possession or injunction; the High Court’s reliance on Ram Saran is appropriate to the facts."},

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ram Saran and Anr. vs. Ganga Devi	AIR 1972 SC 2685	Distinguished	The Supreme Court distinguishes Ram Saran on facts; Ram Saran involved a declaratory relief only without possession, whereas Gian Kaur’s plaint includes injunction and possession prayers.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## [2011) 2 S.C.R. 486 A ## GIAN KAUR _v._ RAGHUBIR SINGH (Civil Appeal No. 1142 of 2003) B FEBRUARY 03, 2011 [G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.] - - - _Specific Relief Act, 1963 s. 34 Suit for declaration_ - _Decreed by trial court and first appellate court However, set_ C _aside by High Court on a finding that suit simpliciter for declaration is not maintainable uls. 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_ D _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_ E _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._ F 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 G possession. Therefore, the appellant filed the instant appeal. ## Allowing the appeal, the Court H' 486 GIAN KAUR _v._ RAGHUBIR SINGH 487 HELD: 1.1 From the plaint, it appears, prima facie, that A 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 B 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 c 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 0 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 E 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] F _Ram Saran and Anr. vs. Ganga Devi_ AIR 1972 SC 2685 - distinguished. ## Case Law Reference: . AIR 1972 SC 2685 Distinguished Para 6 G CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1142 of 2003. From the Judgment & Order dated 26.08.2002 of the High H ## 488 SUPREME COURT REPORTS [2011) 2 S.C.R. A Court of Punjab and Haryana at Chandigarh in RS.A. No. 1806 of 2000. Devender Mohan Verma for the Appellant B The Judgment of the Court was delivered by **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 c 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. D 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 E 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 F 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 G 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 H GIAN KAUR _v._ RAGHUBIR SINGH 489 [ASOK KUMAR GANGULY, J.] file a fresh a suit. After the withdrawal of the aforesaid suit, the A 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 8 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 C 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: - "1. Whether Khushi Ram has executed any will dated 12.4.1990? OPP D 2. Whether the Plaintiff is owner in possession of the Suit land? OPP 3. Whether the Plaintiff is entitled to the declaration as E 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? F 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 G 8. Relief." 4. As would appear from the issues set out above that issue relating to maintainability of the suit was framed and on H -·- [2011] 2 S.C.R. ## 490 SUPREME COURT REPORTS A 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 B 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. C C 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 D 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 E way of additional documents contained the following prayer: F - "(a) A decree of declaration to the effect that the plaintiff is owner in possession of 16 Kanai O 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; G - (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 H 1 c . · · · GIAN KAUR _v._ RAGHUBIR SINGH - . 491 ·. [ASOK KUMAR GANGULY, J.] ' ~· ' - plaintiff is disp~ssessed by· Deft durfng pendency ' A .. of suit; . . ·may kindly be passed in favour of the plaintiff and against the Deft with costs." . ..,: \ < ,. ; \I . ' 8. It appe<1rs. prima facie, that apart from making a prayer B for declaration there is also a consequential prayer for a decree · for permanent injunction restraining the defendant from afi~naling the suit property or interfering in peaceful possession of plaintiff therein. _I_ c 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 D 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· E 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 j that in that suit the plaintiff merely claimed a declaration that Lthey are the owners of the property and they have not sought l for possession of the said properties.(see para 4) · F \ i 13. For the reasons aforesaid, this Court holds that the suit G ! is not hit by Section 34 of the Specific Relief Act. The decision . I l, in and _Ram Saran_ cannot be applied (supra) was rendered'on totally different facts 10 the present ease. 14. We are, therefore, constrained to observe that the High H ## 492 SUPREME COURT REPORTS [2011) 2 S.C.R. . - A 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 8 · the High Court and restore that of the First Appellate Court. There shall be no order as to costs. - N.J. Appeal allowed.