Chhamman Khan v. Allah Dee — 1980 DIGILAW 711 (ALL)

JUDGMENT : DEOKI NANDAN, J. 1. This is a Defendant's second appeal. The decree under appeal that was granted by the lower appellate court declares that Plaintiffs Nos. 3 to 8 and Defendant No. 5 are the joint owners of the house in suit and that Plaintiffs Nos. 1 and 2 and Defendants Nos. 1 to 4 have no interest in the same. The trial court had dismissed the suit on the finding that the Plaintiffs were out of possession and Defendant No. 5 alone was in exclusive possession of the house in suit and that, therefore, the Plaintiffs' claim for declaration could not be decreed. Plaintiffs Nos. 1 & 2, Abdul Aziz and Mohammad Sayeed, having died during the pendency of the suit, they are represented by Respondents Nos. 1 to 13 in the second appeal in this Court. Respondents Nos. 14 to 19 were respectively Plaintiffs Nos. 3 to 8 in the suit. The Appellant Chhamman Khan, was Defendant No. 5 and Respondent Nos. 20 to 23 were respectively Defendants Nos. 1 to 4. 2. The relationship of the parties except the Defendant-Appellant would be clear from the genealogical table which is given in the trial court's judgment. The Defendant-Appellant is a transferee of the shares of Defendant-Respondents in the house in suit. The trial court found on an appraisal of the evidence on the record that Plaintiffs Nos. 1 and 2 (represented by Plaintiff-Respondents Nos. 1 to 13) had no share left in the house in suit and that the share of Plaintiffs Nos. 3 to 8 (Plaintiff-Respondents Nos. 14 to 19) was 6 Sihams out of 42 and that the Defendant-Appellant was the owner of the balance 36 Sihams. The Plaintiffs, all of whom were the Appellants before the lower appellate court did not challenge the finding of the trial court on the extent of the share of the parties in the house in suit, nor did the Defendant-Appellant who was the contesting Respondent before the lower appellate court challenge the same. The only question canvassed before the lower appellate court was that the decree for declaration could not be refused on the ground that the Plaintiffs were out of possession inasmuch as Plaintiffs Nos. 3 to 8 having been held to be the co-owners of the house along with the fifth Defendant, the claim for declaration could not be refused on any such grounds. 3 to 8 having been held to be the co-owners of the house along with the fifth Defendant, the claim for declaration could not be refused on any such grounds. It was argued for the fifth Defendant before the lower appellate court that the declaration claimed by the Plaintiffs was that they along with Defendants Nos. 1 to 4 were the exclusive owners of the house in suit, and since it has been found that Plaintiffs Nos. 1 and 2 and Defendants Nos. 1 to 4 were not co-owners of the house in suit, the suit merited dismissal. The argument did not find favour with the lower appellate court and it held that those of the Plaintiffs who had been found to have a share In the house along with the fifth Defendant were entitled to a declaration of their share. 3. Before I take up the respective contentions raised by the Learned Counsel for the parties in this Court, I must take note of an application for amendment of the plaint that was moved on behalf of the Plaintiff-Respondents and was rejected by me on 10th July, 1980 for reasons to be given in the judgment which was reserved. The amendment prayed for was, in the clause specifying the court fee payable by seeking to raise the amount payable from Rs. 50/- to Rs. 297.50 on the valuation of the suit at Rs. 1930/-, which was kept unaltered. The other amendment prayed for was by addition of a relief of joint possession. The main reason for rejecting the amendment application was that in a case where the parties are in joint possession as co-sharers, a mere declaration of their right is sufficient and it is not necessary to claim the relief of joint possession. 4. If a co-sharer is ousted by another co-sharer from the enjoyment of land, the proper relief claimable by him is a partition of the land, provided the land is capable of partition and the co-sharer wants his share to be separated. But there may be cases where the share of the co-sharer so ousted may be small and he is not interested in having the land partitioned but only desires protection of his right in the joint property by a declaration thereof The question is whether the proviso to Section 34 stands in the way of granting a declaration in such a case. The Plaintiffs did not in the present case claim to be the exclusive owners of the property nor did the fifth Defendant-Appellant claim that Plaintiffs Nos. 3 to 8, Respondents Nos. 14 to 19, do not have a share of 6 sihams out of 42 in the house in suit. Under the circumstances when the Plaintiffs came to know that the Defendants were denying their share in the house In suit they were entitled to bring a suit for declaration that the Defendants were not the exclusive owners of the house but that the Plaintiffs also possessed a share in the house jointly with the Defendants without additionally claiming a decree of joint possession or of partition and exclusive possession of their separate share. The claim made by the Plaintiffs was that the Defendant No. 5 had no concern with the house in suit and for a declaration, although in paragraph 7 of the plaint it has been stated in the alternative that in case that the sale deed in favour of the fifth Defendant was proved to be valid, his share in the house would be 22 sihams out of 42. The only relief claimed is for a declaration that the house in suit was undivided property of the Plaintiffs along with Defendants Nos. 1 to 4 who had sold all their rights, title and interest in the house in suit to the fifth Defendant-Appellant. I do not think that the Plaintiffs were bound to also claim the specification and separation of their share by metes and bounds by a decree of partition so as to avoid the bar of the proviso to Section 34 of the Specific Relief Act. As to the objection that the suit is bad because the two courts below have found that the first two Plaintiffs had no share in the house in suit, that cannot deprive Plaintiffs Nos. 3 to 8 of their right to have the declaration made in their favour only. Nor does the fact that the relief claimed is for a declaration of jointness between the Plaintiffs and Defendants Nos. 1 to 4 debar the court from granting a declaration that Plaintiffs Nos. 3 to 8 alone are co-sharers in the property along with the fifth Defendant on the finding that Defendants Nos. Nor does the fact that the relief claimed is for a declaration of jointness between the Plaintiffs and Defendants Nos. 1 to 4 debar the court from granting a declaration that Plaintiffs Nos. 3 to 8 alone are co-sharers in the property along with the fifth Defendant on the finding that Defendants Nos. 1 to 4 had transferred all the rights, title and interest in the property to the fifth Defendant. It is not a case where the fifth Defendant was not a party, or where the Plaintiffs did not mention the sale deed in his favour in the plaint. The Plaintiffs mentioned the sale-deed. They primarily claimed that it was invalid but also claimed that if the court found it valid the extent of the share of Defendant No. 5 would be 22 shiams out of 42. 5. I do not, therefore, think that the lower appellate court committed any error of law in granting the declaration which it did, of joint ownership of Plaintiff's Nos. 3 to 8 and Defendant No. 5 in the house in suit. 6. Learned Counsel for the Defendant-Appellant had cited a few cases. The first of them was that of Kedar Sahu v. Smt. Bhagwanti (1911) 8 ALJ 462. That was a case where the Plaintiff was forcibly turned out of his house and is clearly distinguishable on the facts from the present case. In Dhani Ram v. Rura Mal AIR 1935 Lah. 881 the declaration claimed was that the Plaintiffs are owners of a portion of a house in the possession of the Defendants. In the present case the declaration claimed is of joint ownership. That case is also clearly distinguishable. In Anila Bala Devi Vs. Madhabendu Narain Roy and Another, AIR 1942 Cal 245 the principle laid down is that the words 'further relief in the proviso to Section 42 (of the old Specific Relief Act) mean relief in relation, to the legal character or right as to property to which the Plaintiff is entitled to and whose title to such character or right the Defendant denies or is interested to deny and that relief must also be appropriate to and necessarily consequent on the right of title asserted. Applying the principle laid down by this case it would appear that a declaration of joint ownership was sufficient in the present case for, a co-owner is not bound to bring a suit for partition and separate possession if the other co-owner denies his interest in joint property. He may like to continue enjoying the property as a co-owner and for that a decree declaring that he is a co-owner is enough and inasmuch as one co-owner's possession is the possession of another, it is not incumbent for him to claim a decree for joint possession either. The next case relied upon by the Learned Counsel was that of Dwarka Prasad and Others Vs. Mt. Jasoda Kunwar and Others, AIR 1933 All 958. The decision of that case can be confined to its own facts and has no application to the facts of the present case. The declaration claimed there was that the first Defendant had no share in the property. The finding was that the rent of her share of the property was being collected separately by her donees. That amounted to saying that the Defendant was in separate possession of her share of the property. That being so there can be no doubt that a mere declaration would have been ineffective without a decree for possession in case it was found that the Defendant had no share in the property. In the view that I have taken it is strictly not necessary to refer to the other cases relied upon by the Learned Counsel for the Plaintiff-Respondents. 7. I may, however, add that there is no disputing the fact that the fifth Defendant was in possession as the major co-sharer of the house in suit. It was not the Plaintiffs' case either that Defendants Nos. 1 to 4 or their transferee, namely, the fifth Defendant were not in possession. So long as Defendants Nos. 1 to 4 did not deny that the successful Plaintiffs had a share in the house in suit, the Plaintiffs could have had no cause of action against those Defendants. The execution of the sale deed dated 27th May, 1964 by Defendants Nos. 1 to 4 in favour of the fifth Defendant and the claim of absolute ownership of the house in suit was the cause of action for the suit. The suit was brought on 7th February, 1965 within a few months thereafter. The execution of the sale deed dated 27th May, 1964 by Defendants Nos. 1 to 4 in favour of the fifth Defendant and the claim of absolute ownership of the house in suit was the cause of action for the suit. The suit was brought on 7th February, 1965 within a few months thereafter. The Plaintiffs did not want their co-sharers to go out of possession and it having been found that the Defendant No. 5 was the major co-sharer, one cannot non suit the Plaintiffs for not asking for partition of their share and separate possession over the same. A decree of declaration was enough to protect their right as co-owners of the house. 8. In the result, the appeal fails and is dismissed but in the circumstances, I would make no order as to costs incurred by the parties in this Court.