The central legal point established in the judgment is that a declaration under Section 34 of the Specific Relief Act, 1963 can only be granted if the plaintiff is entitled to a specific legal character or to any right as to property, and the existence of a defendant who denies or is interested to deny the legal character claimed by the plaintiff is necessary.

JUDGMENT :

Sanjay K. Agrawal, J.

1. Proceedings of this matter have been taken-up for final hearing through video conferencing.

2. This second appeal preferred by original plaintiff-Ganga Bai has been admitted for final hearing on 15.9.2020 by formulating the following substantial question of law:-

"Whether the first appellate Court is justified in holding that the declaration sought for regarding the civil death of Bhagwat cannot be granted under Section 34 of the Specific Relief Act, 1963, by recording the finding which is perverse to the record?"

(For the sake of convenience, parties hereinafter will be referred as per their status shown and ranking given in the plaint before the trial Court.)

3. Original plaintiff-Ganga Bai was wife of defendant No. 1-Bhagwat (She died during the pendency of this second appeal). She filed a suit on 25.10.99 pleading inter-alia that her husband Bhagwat is not known for last 23 years (since 1976) and therefore, decree be granted stating that defendant No. 1 has died civil death as he is not known for last 23 years and claimed decree of declaration simpliciter for declaration that defendant No. 1-Bhagwat has suffered civil death. Defendant Nos. 4 to 6 filed their written statement refuting the plaint allegation pleading inter-alia that defendant No. 1-Bhagwat has been seen in the year 2002, as such, the suit is liable to be dismissed as bare suit for declaration as claimed is not maintainable.

4. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment and decree dated 6.2.2004 decreed the suit holding that since defendant No. 1 has not been heard for several years, therefore, the plaintiff is entitled for decree that defendant No. 1 has died civil death since the date of institution of suit i.e. 25.10.99. Feeling aggrieved against the judgment and decree of the trial Court, Defendant Nos. 4 to 6 preferred first appeal before the first appellate Court. The first appellate Court by the impugned judgment and decree allowed the appeal holding that the plaintiff is not entitled for any such decree as claimed and granted by the trial Court in view of the provisions contained in Section 34 of the Specific Relief Act, 1963 (hereinafter called as 'the Act of 1963') as none of the answering defendants have denied any of the legal right of the plaintiff, as such, the suit as framed and filed is not maintainable under Section 34 of the Act of 1963. Questioning the judgment and decree of the first appellate Court, this second appeal under Section 100 of the CPC has been filed by the plaintiff (during pendency of this second appeal, original plaintiff-Ganga Bai has died and Malesh Kunwar claiming to be adopted son of the plaintiff has been impleaded), in which substantial question of law has been formulated and which has been set-out in opening paragraph of this judgment for sake of completeness.

5. Mr. Praveen Dhurandhar, learned counsel for legal representative of the appellant/plaintiff, would submit that the first appellate Court is absolutely unjustified in setting aside the judgment and decree of the trial Court holding that the suit as framed and filed is not grant-able under Section 34 of the Act of 1963 for decree of declaration. He would further submit that Section 34 of the Act of 1963 does sanction every form of declaration, therefore, the first appellate Court is absolutely unjustified in holding that the plaintiff is not entitled for decree of declaration as claimed, as such, the impugned judgment and decree deserves to be set aside by answering the substantial question of law in favour of the plaintiff and against Defendant Nos. 4 to 6.

6. Mr. Manoj Paranjape, learned Amicus Curiae, would submit that Section 34 of the Act of 1963 does not sanction every form of declaration. It sanctions only a declaration that the plaintiff is entitled to a specific legal character or to any right as to property. In the instant case, according to the plaintiff, her hu