Possession of one co-owner holds good for all co-owners, and a suit for declaration and injunction without seeking possession is maintainable for jointly owned and possessed property.

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? 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 among