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2016 DIGILAW 413 (HP)

Gian Chand v. Om Parkash

2016-04-05

SANJAY KAROL

body2016
JUDGMENT : Sanjay Karol, J. This Regular Second Appeal, under the provisions of Section 100 of the Code of Civil Procedure, filed by the defendant, stands admitted on the following substantial questions of law:- 1. Whether a simplicitor suit for declaration and permanent injunction without asking for possession even if the Khata of the parties is joint is maintainable? 2. Whether a prayer not made in the plaint can be granted particularly when it is held that the plaintiff is not in possession of any portion of the land in suit? 2. Sant Ram had three sons namely Laxmi Chand, Kesho Ram and Paras Ram. Plaintiff Om Parkash is the son of Laxmi Chand and defendant Gian Chand is the son of Kesho Ram. Undisputedly, Paras Ram died issueless. The dispute is with regard to the share of deceased Paras Ram in the joint land, of which, plaintiff Om Parkash and defendant Gian Chand are co-owners. 3. On the basis of registered Will dated 25.8.1976 (Ex.D-1), executed by Paras Ram in favour of Gian Chand, entries of mutation stood effected in the revenue record. The efficacy of the Will and such entry of revenue came to be assailed, by way of a civil suit so filed by Om Parkash, claiming ownership on the basis of subsequent unregistered Will dated 5.2.1989 (Ex.PW2/A), executed in his favour by Paras Ram. 4. Resistance on the part of the defendant led the trial Court frame the following issues:- “(1) Whether the deceased Paras Ram executed a legal and valid Will in favour of the plaintiff on 5.2.1989, as alleged? OPP (2) Whether the earlier Will dated 25.8.1976 in favour of the defendant, as well as the mutation attested on the basis of that Will, is a result of undue influence and fraud and not binding on the plaintiff, as alleged? OPP (3) Whether the order dated 29.2.1996 of Collector, Nurpur and order dated 12.5.1999 of the Divisional Commissioner, Kangra are illegal void etc. as alleged? OPP (4) Whether the plaintiff is entitled to the relief of permanent injunction, as prayed for? OPP (5) Whether the suit is not maintainable in the present form? OPD (6) Whether the suit is barred by limitation? OPD (7) Whether the plaintiff has no cause of action to file the present suit? OPD (8) Whether the plaintiff is estopped from filing of the present suit? OPP (5) Whether the suit is not maintainable in the present form? OPD (6) Whether the suit is barred by limitation? OPD (7) Whether the plaintiff has no cause of action to file the present suit? OPD (8) Whether the plaintiff is estopped from filing of the present suit? OPD (9) Whether the defendant is entitled to special compensatory cost, as prayed for? OPD (10) Whether the Will dated 5.2.89 is a forged and fraudulent document, as alleged? OPD (11) Relief.” 5. The trial Court found the Will dated 25.8.1976 propounded by defendant Gian Chand to have been cancelled vide subsequent Will dated 5.2.1989 in favour of Om Parkash. However since the defendant was found to be in possession, trial Court dismissed the suit as plaintiff’s suit was simplicitor for declaration and permanent injunction, which was not maintainable. Thus, the issues came to be answered accordingly. 6. Such findings of fact, judgment and decree dated 22.4.2003, passed by Sub Judge 1st Class (1), Nurpur, District Kangra, H.P., in Civil Suit No.150/99, titled as Om Parkash vs. Gian Chand, so assailed by the plaintiff, stands reversed vide impugned judgment and decree dated 1.1.2005, passed by District Judge, Kangra at Dharamshala (HP), in Civil Appeal No.58-N/XIII/2003, titled as Shri Om Parkash vs. Shri Gian Chand. 7. Significantly, lower appellate Court found: (1) the plaintiff to be co-owner of the land in question alongwith Paras Ram, as per record of rights. (2) The last Will to have been validly executed in favour of the plaintiff. 8. This Court has not gone into the question of correctness of the findings of Will dated 5.2.1989 (Ex.PW2/A), validly executed by Paras Ram in favour of the plaintiff, whereby earlier Will dated 25.8.1976 (Ex.D-1) stood cancelled. 9. Perusal of entries of record of rights (Ex.P-1 and Ex.P-2) clearly reflect the parties, including plaintiff Om Parkash to be co-owner. He has an independent right. Khata of the entire land continued to be joint and the land never came to be partitioned amongst the co-sharers. It is a settled principle of law that possession of one co-owner holds good qua all the coowners. 10. Perusal of the plaint reveals that plaintiff had sought declaration to the effect that he is owner in possession, by way of succession to the entire estate of Paras Ram situated in Village Tikka Palahari, Mauja Kot Palhari, Tehsil Nurpur, District Kangra. 10. Perusal of the plaint reveals that plaintiff had sought declaration to the effect that he is owner in possession, by way of succession to the entire estate of Paras Ram situated in Village Tikka Palahari, Mauja Kot Palhari, Tehsil Nurpur, District Kangra. Also, declaration was sought, restraining the defendant from claiming ownership, qua the estate of Paras Ram, on the basis of Will dated 5.2.1989. 11. Undisputedly, Paras Ram had 1/6th share in the entire joint land. Significantly, in the written statement, defendant no where pleaded to have been put in exclusive possession of share of Paras Ram. The land was never partitioned. Mutation No.53 dated 17.4.1992 sanctioned by revenue officer (A.C. 2nd grade, Nurpur, Kangra), in favour of defendant, also did not record the defendant to be in exclusive possession of the land falling to the share of Paras Ram. 12. Section 34 of the 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.” 13. Plaintiff never sought partition of either his share or the share of Paras Ram. On the strength of Will (Ex.PW2/A), plaintiff only sought declaration of title of the share in the land of which he himself was coowner being jointly owned and possessed by all, including the parties to the lis. Hence, proviso to Section 34 of the Specific Relief Act, in the instant case, cannot be pressed in the given facts and circumstances. 14. Assuming hypothetically that plaintiff was not in possession of the suit land, even then it is a settled principle of law that possession of any co-owner holds good qua all the owners, unless of course the intent is otherwise, which is not the factual position here. 14. Assuming hypothetically that plaintiff was not in possession of the suit land, even then it is a settled principle of law that possession of any co-owner holds good qua all the owners, unless of course the intent is otherwise, which is not the factual position here. In the absence of the suit property having been partitioned and the parties being put in possession of their respective portions, plaintiff continues to be in possession of the suit property and as such was not required to seek relief of possession. 15. While contending that the suit as framed by the plaintiff was hit by Section 34 of the Specific Relief Act, 1963, and as such, ought to have been dismissed, Mr. Ramakant Sharma, learned Senior counsel, seeks reliance upon the decision rendered in Union of India Versus Ibrahim Uddin and another, (2012) 8 SCC 148 , wherein following observations were made by the apex Court:- “55. The section provides that courts have discretion as to declaration of status or right, however, it carves out an exception that a court shall not make any such declaration of status or right where the complainant, being able to seek further relief than a mere declaration of title, omits to do so. 56. In Ram Saran and another v. Smt. Ganga Devi, (1973) 2 SCC 60 , this Court had categorically held that the suit seeking for declaration of title of ownership but where possession is not sought, is hit by the proviso of Section 34 of the Specific Relief Act, 1963 (hereinafter called “the Specific Relief Act”) and, thus, not maintainable. In Vinay Krishna v. Keshav Chandra and another, 1993 Supp (3) SCC 129, this Court dealt with a similar issue where the plaintiff was not in exclusive possession of property and had filed a suit seeking declaration of title of ownership. Similar view has been reiterated observing that the suit was not maintainable, if barred by the proviso to Section 34 of the Specific Relief Act. (See also Gian Kaur v. Raghubir Singh, (2011) 4 SCC 567 . 57. In view of the above, the law becomes crystal clear that it is not permissible to claim the relief of declaration without seeking consequential relief. 58. In the instant case, the suit for declaration of title of ownership had been filed, though Respondent 1-plaintiff was admittedly not in possession of the suit property. 57. In view of the above, the law becomes crystal clear that it is not permissible to claim the relief of declaration without seeking consequential relief. 58. In the instant case, the suit for declaration of title of ownership had been filed, though Respondent 1-plaintiff was admittedly not in possession of the suit property. Thus, the suit was barred by the provisions of Section 34 of the Specific Relief Act and, therefore, ought to have been dismissed solely on this ground. The High Court though framed a substantial question on this point but for unknown reasons did not consider it proper to decide the same.” 16. The decision rendered by two Judge Bench of the apex Court is squarely inapplicable in the given facts and circumstances, more so, in the light of earlier decision rendered by three Judge Bench of the apex Court in Deo Kuer and another v. Sheo Prasad Singh and others, AIR 1966, SC 359, wherein it is held that where the property is held as custodia legis, plaintiff’s suit, seeking declaration of title and not claiming possession thereof, cannot be said to be hit by proviso contained under Section 42 of the Specific Relief Act (para materia with the present Section 34 of the Specific Relief Act). 17. The apex Court in Ibrahim Uddin (supra) was not dealing with the case where the defendant as a cosharer was in possession of the suit property. 18. In any event, it has been held by the apex Court in Sadasivam versus K. Doraisamy, (1996) 8 SCC 624 that a co-sharer is expected to possess the land not partitioned between the parties. Exclusive possession of a co-sharer does not amount to adverse possession against other co-sharers unless such possession was exercised by ousting the other cosharers. 19. The apex court in Karbalai Begum v. Mohd. Sayeed and another, (1980) 4 SCC 396 , has held that a co-sharer in possession is in the capacity of a constructive trustee of the other co-sharers, in the following terms: “7. Another obvious fact which emerges from the admitted position is that if Mohd. Bashir and Mohd. Rasheed were co-bhumidars with the plaintiff in the khewat and had also sirdari tenants under them, how could the sirdari tenants occupy the land of one of the co-sharers leaving the defendants alone so that the blots were re-allotted to them. Another obvious fact which emerges from the admitted position is that if Mohd. Bashir and Mohd. Rasheed were co-bhumidars with the plaintiff in the khewat and had also sirdari tenants under them, how could the sirdari tenants occupy the land of one of the co-sharers leaving the defendants alone so that the blots were re-allotted to them. It is well settled that mere non-participation in the rent and profits of the land of a cosharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. Indeed even if this fact be admitted, then the legal position would be that Mohd. Bashir and Mohd. Rashid, being co-sharers of the plaintiff, would become constructive trustees on behalf of the plaintiff and the right of the plaintiff would be deemed to be protected by the trustees. The learned counsel appearing for the respondent was unable to contest this position of law. In the present case, it is therefore manifest that the possession of the defendants, apart from being in the nature of constructive trustees, would be in law the possession of the plaintiff.” (followed in MD. Mohammad Ali (dead) By LRs. V. Jagadish Kalita and others, (2004) 1 SCC 271; Govindammal v. R. Perumal Chettiar and others, (2006) 11 SCC 600 ; P.T. Munichikkanna Reddy and others v. Revamma and others, (2007) 6 SCC 59 ; and Annakili v. A. Vedanayagam and others, (2007) 14 SCC 308 ). 20. Hence, in my considered view, there is no merit in the present appeal and the same is accordingly dismissed. It cannot be said that the judgment passed by the lower appellate Court is based on incorrect and incomplete appreciation of facts and material placed on record by the parties or that the same is perverse which has resulted into miscarriage of justice. Substantial questions of law are answered accordingly. Pending applications, if any, also stand disposed of accordingly.