Judgment : This Second Appeal, preferred under section 100 of Code of Civil Procedure, 1908, is directed against the judgment and decree dated 22.04.1994, passed by Additional District Judge, Haridwar, in Civil Appeal No. 34 of 1991, whereby said court has allowed said civil appeal, and judgment and decree dated 10.05.1990 passed by the trial court (Additional Civil Judge, Roorkee) in suit no. 29 of 1982 was set aside. The trial court had dismissed the suit of the plaintiff which is decreed by the first appellate court declaring the plaintiff as owner of the property in question. The first appellate court also decreed the suit for perpetual injunction restraining the defendants from interfering with the possession of the plaintiff over the property in suit after the same is delivered to her. 2. Heard learned counsel for the parties and perused the lower court record. 3. Brief facts, of the case, are that plaintiff Smt. Phullan @ Phulla (since died) filed the suit for declaration of rights over the property in question and also for the injunction against the defendants, with the pleadings that the plaintiff inherited the property detailed at the foot of the plaint as Schedule A, B, and C being daughter of Late Phool singh who had inherited the property from his father Jeevan. It is stated in the plaint that Phool Singh had two children through his first wife Gyan Devi namely plaintiff Phullan @ Phulla and one Surajbhan (deceased). It is further stated by the plaintiff that Smt. Gyan Devi (W/o Phool Singh) died about forty years (before filing of suit), Surajbhan died about thirty years and Phool Singh died about twenty five years before filing of the suit. It is also pleaded by the plaintiff that before his death Phool singh kept one Chandi Devi with him (after death of his first wife Gyan Devi) through whom he had a son named Rajendra but he too died at the age of nine years. After death of Phool Singh initially name of minor Rajendra was entered into revenue records over property in suit but on the death of Rajendra name of Chandi Devi was recorded to which plaintiff filed objections before the Mutation authorities. On 28.09.1981 Chandi Devi was murdered. It is alleged by the plaintiff that she was murdered by the defendants no. 1 to 5 whereafter defendants no. On 28.09.1981 Chandi Devi was murdered. It is alleged by the plaintiff that she was murdered by the defendants no. 1 to 5 whereafter defendants no. 2, 3 and 4 got forged a Will purporting to have been executed by Chandi Devi which according to plaintiff is null and void. It is also pleaded in the plaint that proceedings under section 145 and 146 Cr.P.C., were initiated in respect of property in question and SUPURDGAR (custodian) was given possession of the property in suit. Defendant no. 5 and 6 are said to be witnesses of the alleged forged Will and defendant no. 7 is the scribe of the Will. 4. Defendant no. 1, 5, 6, 7 and 8 filed their separate written statements, and defendant no. 2 to 4 filed their joint written statement. Defendant no. 1 in his written statement denied the pleas taken by the plaintiff, and in the additional pleas stated that the plaintiff has no concern whatsoever with the property in suit. He denied that the Will dated 09.02.1978 executed in favour of defendant no. 2 to 4 is a forged document. It is specifically pleaded by this answering defendant that Chandi Devi was the sole owner in possession of the property who executed Will out of love and affection in favour of defendant no. 2 to 4 (who are sons of defendant no. 1). He further specifically denied that the defendant no.1 or defendant no. 2 to 5 committed murder of Chandi Devi. 5. Defendant no. 2 to 4 also denied the contents of the plaint. It is pleaded in their additional pleas that the suit is undervalued and court fee paid is insufficient. It is also pleaded that since the possession of the property in question has been attached under section 145 and 146 Cr.P.C., and the plaintiff being not in possession of the same cannot maintain the suit as the same is barred by Section 34 of Specific Relief Act, 1963. It is also pleaded that suit is bad for non joinder of children of Mukhtari (married daughter of Jeevan). It is also denied by these defendants that plaintiff is daughter of Phool Singh (S/o Jeevan). It is further pleaded that Chandi Devi got married to Phool Singh. However, it is admitted that a son named Rajendra born through Chandi Devi who died at the age of 9-10 years. It is also denied by these defendants that plaintiff is daughter of Phool Singh (S/o Jeevan). It is further pleaded that Chandi Devi got married to Phool Singh. However, it is admitted that a son named Rajendra born through Chandi Devi who died at the age of 9-10 years. It is also admitted that in place of name of Rajendra in the revenue records name of Chandi Devi was entered in the revenue records in respect of property in suit. It is specifically pleaded by defendant no. 2 to 4 that the suit is barred by Section 331 of U.P. Act No. 1 of 1951. It is denied by these answering respondents that they or their father (defendant no. 1) committed murder of Chandi Devi. It is also pleaded that the Will executed by Chandi Devi is not a forged document and the same was lawfully executed by her as they used to help Chandi Devi in the cultivation. 6. Defendant no. 5 Ompal also filed separate written statement with almost same pleas as taken by defendants no. 2 to 4. 7. Defendant no. 6 Sagir has also filed separate written statement with similar pleas as taken by defendants no. 2 to 4. 8. Defendant no. 7 has also filed separate statement with the plea that Will in question was executed by Chandi Devi in favour of defendants no. 2 to 4 in healthy state of mind. 9. Defendant no. 8 has pleaded in her written statement that he has been unnecessarily impleaded as a party. It is further stated by him that he is simply SUPURDGAR (custodian) of the property in suit under orders of Sub Divisional Magistrate passed under section 145 and 146 Cr.P.C. 10. In the additional written statement filed after amendment in the plaint, the amended pleas has been denied by defendants no. 2 to 4. 11. On the basis of the pleadings of the parties the trial court framed following issues:- (i) Whether the suit is undervalued and court fee is insufficient? (ii) Whether the suit is barred by section 34 of Specific Relief Act? (iii) Whether the suit is bad for non joinder of necessary party as alleged in para 4 of the written statement (of defendant no. 2 to 4)? (iv) Whether the suit is barred of section 331 of U.P.Act No. 1 of 1951? (ii) Whether the suit is barred by section 34 of Specific Relief Act? (iii) Whether the suit is bad for non joinder of necessary party as alleged in para 4 of the written statement (of defendant no. 2 to 4)? (iv) Whether the suit is barred of section 331 of U.P.Act No. 1 of 1951? (v) Whether the suit is bad for misjoinder of parties (as pleaded by defendant no. 6, 7 and 8)? (vi) Whether the Will dated 09.02.1978 is null and void? (vii) To what relief, if any, the plaintiff is entitled? (viii) Whether the suit is barred by Order 2 Rule 2 (of Code of Civil Procedure)? (ix) Whether plaintiff is the sole legal heir of Phool Singh, if so, is she owner of the disputed property, and is she entitled to the possession thereof? (x) Whether the court fee paid after amendment is insufficient? (xi) Whether suit is not maintainable as alleged in para 13 of the written statement? (xii) Whether Chandi Devi executed Will dated 09.02.1978 in respect of the disputed property in favour of defendant no. 2 to 4 as pleaded by them, if so, its effect? 12. Issue no. 1 was decided by the trial court as preliminary issue on 18.04.1984. Issue no. 10 was also decided by said court on 17.10.1985 as preliminary issue. The rest of the issues were decided at the time of disposal of the suit after recording evidence and hearing the parties. On issue no. 3, 4, 5, 8 and 11 the trial court gave findings in favour of the plaintiff, but the findings on issue no. 6, 7, 9 and 12 were decided against the plaintiff and suit was dismissed. Aggrieved by said judgment and decree dated 10.05.1990 passed by the trial court (Additional Civil Judge, Roorkee) in suit no. 29 of 1982, the plaintiff Phullan filed Civil Appeal No. 34 of 1991 before District Judge, which was allowed by Additional District Judge, Haridwar, vide impugned judgment and decree dated 22.04.1994. Said first appellate court set aside the judgment and decree passed by the trial court and decreed the suit for declaration and also for injunction restraining the defendants from interfering in the possession of the plaintiff after she receives possession of the property from the Custodian. Aggrieved by said judgment defendants no. Said first appellate court set aside the judgment and decree passed by the trial court and decreed the suit for declaration and also for injunction restraining the defendants from interfering in the possession of the plaintiff after she receives possession of the property from the Custodian. Aggrieved by said judgment defendants no. 2 to 4 Satendra @ Babu, Ved Pal and Mukesh Kumar filed this second appeal before Allahabad High Court on 06.05.1994 from where it is received under section 35 of U.P. Reorganization Act, 2000, by this Court, for its disposal. 13. Following questions of law were formulated in this appeal:- (i) Whether suit is barred by section 331 of U.P. Zamindari Abolition and Land Reform Act, 1950 (U.P. Act, No. 1 of 1951)? (ii) Whether lower appellate court has erred in law in believing the plaintiff’s case even though the plaintiff Phullan did not get herself examined as witness? (iii) Whether relief for declaration could not have been granted without cancellation of Will in question? Answer to substantial question of law no. 1 14. Sub-section (1) of section 331 of U.P. Zamindari Abolition and Land Reforms Act,1950 (U.P. Act No. 1 of 1951) reads as under:- 331. Cognizance of suits, etc. under this Act-(1) Except as provided by or under this Act no court other than a court mentioned in Column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908 (V of 1908), take cognizance of any suit, application, or proceedings mentioned in Column 3 thereof [or of a suit, application or proceedings based on a cause of action in respect of which any relief could be obtained by means of any such suit or application:] [Provided that where a declaration has been made under Section 143 in respect or any holding or part thereof, the provisions of Schedule II insofar as they relate to suits, applications or proceedings under Chapter VIII shall not apply to such holding or part thereof.] [Explanation- If the cause of action is one in respect of which relief may be granted by the revenue court, it is immaterial that the relief asked for from the civil court may not be identical to that which the revenue court would have granted.] 15. Serial No. 34 of Schedule II of the U.P. Act No. 1 of 1951 shows that suit for declaration of rights are required to be filed before Assistant Collector I Class (which is a revenue court). Learned counsel for the appellants drew attention of this Court to Schedule B mentioned at the foot of the plaint which shows that the relief has been sought in respect of BHUMIDHAR-I rights over plot Khasra No. 142/1 area 0-19-4 194m/1 area 16-4-19 situated at Village Nagla Salaroo, Pargana Manglor, District Saharanpur (now Haridwar), and it is argued that in respect of agricultural land the jurisdiction of Civil Court is barred under sub-section (1) of section 331 of the Act. However, perusal of the plaint shows that the property mentioned in Schedule A is House and GHER (Aabadi) (not the agricultural land) and property mentioned in Schedule C is the cattle (she buffalo) as such though part of the property in suit is agricultural land but the remaining part of the property is not agricultural land, as such property mentioned in Schedule A and property mentioned in Schedule C cannot be said to be covered under Schedule II of U.P. Act No. 1 of 1951 and plaintiff had got no remedy before the revenue authorities in respect of said property. On behalf of the plaintiffs/respondents attention of this Court is drawn to sub-section (1-A) of section 331 which was inserted vide U.P. Act, No. 4/1969, in U.P. Act No. 1 of 1951. The said section reads as under:- (1-A) Notwithstanding anything in sub-section (i), an objection, that a court mentioned in Column 4 of Schedule II, or, as the case may be, a civil court, which had no jurisdiction with respect to the suit, application or, proceedings, exercised jurisdiction with respect thereto shall not be entertained by any appellate or revisional court unless the objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been consequent failure of justice.” 16. From the above provision of law it is clear that not only the party should raise objection relating to jurisdiction under sub-section (1) of section 331 at the earliest but by exercise of the jurisdiction by the court (other than mentioned in Column 4 of Schedule II) failure of justice should have resulted. From the above provision of law it is clear that not only the party should raise objection relating to jurisdiction under sub-section (1) of section 331 at the earliest but by exercise of the jurisdiction by the court (other than mentioned in Column 4 of Schedule II) failure of justice should have resulted. 17. Learned counsel for the appellant drew attention of this Court to the case of Chandrika Misir and another vs. Bhaiya Lal (1973) 2 SCC 474 , and it is argued that the suit for possession and other rights over agricultural land are not entertainable by civil court. On going through the aforesaid judgment, this Court finds that the same was given in a Civil Appeal of 2032 of 1968 as such in said case it appears that the matter pertains to the period prior to insertion of sub-section (1-A) in section 331 of U.P. Act No. 1 of 1951 vide Act No. 4 of 1969. Therefore, this Court is of the view that the Chandrika Misir case (supra) in view of the insertion of sub-section (1-A) of section 331 is not of much help to the appellants. 18. Also attention of this Court is drawn on behalf of the appellants to the principle of law laid down in Deokinandan and ors. Vs. Surajpal and ors. JT 1995 (8) SC 150, and it is contended that the jurisdiction of civil court is barred in respect of agricultural land. I have gone through the said case law and it does not reflect from said case if there was property other than agricultural property also involved in it. In the present case before this Court the property in respect of which relief is sought not only includes agricultural land but also house and GHER (enclosure) and the cattle in respect of which there was no remedy before the revenue court. 19. For the reasons as discussed above, this Court is of the view that the suit filed by the plaintiff is not barred by section 331 of U.P. Zamindari Abolition and Land Reforms Act, 1950. 19. For the reasons as discussed above, this Court is of the view that the suit filed by the plaintiff is not barred by section 331 of U.P. Zamindari Abolition and Land Reforms Act, 1950. Assuming for a moment that jurisdiction of the civil court was barred as argued on behalf of the defendants, even then because there is no consequent failure of justice in the case (in view of sub-section (1-A) of section 331 of U.P. Act No. 1 of 1951), the impugned judgment decided on merits (after holding civil court had jurisdiction), cannot be interfered with. Accordingly, substantial question of law no. 1 stands answered. Answer to substantial question of law no. 2. 20. Undoubtedly in the present case plaintiff Phullan has not entered in the witness box, and in her place her son P.W.1 Sukhbir Singh in whose favour she executed a power of attorney (paper no. 74C in the lower court record) was examined who has proved pleas taken in the plaint by the plaintiff. The witness (P.W.1) has stated that his mother was unwell due to arthritis and as such unable to come to court to make the statement. 21. From both the sides reliance was placed in the law laid down by Apex Court in Man Kaur vs. Hartar Singh Sangha (2010) 10 SCC 512 , and rival contentions were made before this Court. 22. In para 18 of Man Kaur’s case (supra) the Apex Court has summarized principle relating to admissibility and trustworthiness of the statement of a person holding power of attorney. Para 18 of judgment of the Apex Court in said case reads as under:- “We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge: (a) An attorney-holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit. (b) If the attorney-holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. (b) If the attorney-holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney-holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved. (c) The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings or the principal, of which principal alone has personal knowledge. (d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transactions has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney-holders or persons residing abroad managing their affairs through their attorney-holder. (e) Where the entire transaction has been conducted through a particular attorney-holder, the principal has to examine that attorney-holder to prove the transaction, and not a different or subsequent attorney-holder. (f) Where different attorney-holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be examined. (g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his “state of mind” or “conduct”, normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his “bona fide” need and a purchaser seeking specific performance who has to show his “readiness and willingness” fall under this category. There is however a recognised exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or “readiness and willingness”. There is however a recognised exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or “readiness and willingness”. Examples of which attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.” 23. From clause (g) of the above quoted para it is clear that where the affairs of a party are managed and looked after by a attorney (who may happen to be a close family member) his evidence can be accepted. That being so this Court finds no error committed by the lower appellate court in believing the testimony of P.W.1 Sukhbir Singh which was corroborated not only from the evidence of P.W.2 Ramchandar and P.W.3 Jagpal Singh but also from the documentary proof like paper no. 55C in the lower court record relating to birth of daughter of Phool Singh from whom plaintiff has claimed the title. 24. It is not denied by defendants that Chandi Devi (second wife of Phool Singh) was murdered in which the defendants no. 1 to 5 were accused. Said fact is clear from the statement of D.W.3 Satendra @ Babu (present appellant no. 1). During arguments it is conceded by learned counsel for the parties that Bal Singh (father of defendant no. 2 to 4) was convicted in connection with murder of Chandi Devi regarding whom it is alleged by the defendants that she executed Will in their favour though they were not even related to her. In the above circumstances in view of principle of law laid down in Man Kaur’s case (supra) this Court is of the view that non examination of plaintiff who was ailing and on her behalf examination of her son to prove the plaintiff’s case is not fatal to this case particularly when the statement of P.W.1 Sukhbir Singh power of attorney holder shows that his deposition is based on the personal knowledge of the facts. Accordingly substantial question of law no. 2 stands answered in favour of the plaintiff/respondents. Answer to substantial question of law no. 3 25. Accordingly substantial question of law no. 2 stands answered in favour of the plaintiff/respondents. Answer to substantial question of law no. 3 25. It is argued on behalf of the appellants that since the plaintiff failed to challenge “Will” executed by Chandi Devi, and did not seek relief of possession as such the suit is barred by Section 34 of Specific Relief Act, 1963. 26 Section 34 of Specific Relief Act, 1963 reads as under:- Discretion of court as to declaration of status or right- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief. Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation:- A trustee of property is a “person interested to deny” a title adverse to the title of some one who is not in existence, and whom, if in existence he would be a trustee. 27. The reading of the above provision clearly shows that though the suit can be maintained for declaration, and plaintiff need not to ask for any further relief but where the plaintiff is able to seek further relief but he omits to seek such relief court may not grant relief on declaration. 28. On behalf of the appellants it is argued that the plaintiff is not in possession of the property in suit. It is admittedly given to the SUPURDGAR (custodian) in the proceedings under section 145 and 146 Cr.P.C., as such the suit for declaration is not maintainable without seeking relief of possession. It is admitted to the parties that before institution of the present suit proceedings under section 145 Cr.P.C., was initiated and Sub Divisional Magistrate attached entire property in suit and gave to the SUPURDGAR (custodian) till the rights of the parties are determined by a competent authority. The SUPURDGINAMA on the record shows that property was taken from the possession of Phullan @ Phulla before being handed over to the SUPURDGAR. The SUPURDGINAMA on the record shows that property was taken from the possession of Phullan @ Phulla before being handed over to the SUPURDGAR. That being so it cannot be said that actual possession of the plaintiff Phullan @ Phulla was taken away from her by the custodian who holds the possession under the direction of the Magistrate on behalf of the party entitled to the same. On behalf of the appellants reliance was placed in the case of M/s Maharaji Educational Trust and Anr. Vs. Punjab and Singh Bank and Anr. AIR 2006 Delhi 226, but the facts of said case were totally different to the present case. In the present case since property was taken from physical possession of plaintiff by the custodian it cannot be said that she was not in a possession of property in suit merely for the reason that the same was attached and lying with Custodian. Therefore, suit for declaration and injunction filed by the plaintiff without challenging “Will” and seeking relief of possession is maintainable and the same not violative of Section 34 of Specific Relief Act, 1963. Accordingly, substantial question of law no. 3 stands answered in favour of the plaintiffs /respondents. 29. For the reasons as discussed above, this appeal is liable to be dismissed with costs. Accordingly, the second appeal is dismissed with costs.