LexGIAN KAUR versus RAGHUBIR SINGH
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A B [2011) 2 S.C.R. 486 GIAN KAUR v. RAGHUBIR SINGH (Civil Appeal No. 1142 of 2003) 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 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1142 of 2003. From the Judgment & Order dated 26.08.2002 of the High G 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. B Devender Mohan Verma for the Appellant 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, r
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