A suit for declaration of ownership without claiming possession is not barred by Section 34 of the Specific Relief Act if the property is in possession of tenants and the plaintiff is obstructed from realizing rent.

( 1 ) THIS is a defendants second appeal arising out of a suit for declaration that the plaintiff is the owner of house No. 1206 Mohalla Devipura, Bulandshahr and entitled to realize rent in respect thereof from the defendants Nos. 2 to 6 who are residing in the house in suit as tenants thereof. The suit was dismissed by the trial court. On appeal, the decree of the trial court was reversed and the suit was decreed. Hence this second appeal.

( 2 ) THE plaint case was that the plaintiffs husband Munshi Nathan Singh was the owner of the house in suit and other movable and immovable properties. He executed a will bequeathing all his immovable properties including the house in suit in favour of the plaintiff who was his nephew and his movable assets in favour of his wife Smt. Chandania, the defendant No. 1. On the death of Nathan Singh, the plaintiff became the owner of the house entitled to realize rent from the tenants, viz. , defendants Nos. 2 to 6. Nathan Singh also left revenue paying landed property which too had devolved on the plaintiff under the aforesaid will for which he reserved his right to institute appropriate proceedings in the competent court. Smt. Chandania, the widow, even though having no right, title or interest in the house, started realizing rent from the defendants Nos. 2 to 6. Hence the suit.

( 3 ) THE suit was contested by defendant No. 1, the appellant herein. Her defence was that the will set up by the plaintiff was forged and fictitious and the same had been fabricated by the plaintiff in collusion with the typist and marginal witnesses in order to grab the property of Nathan Singh. Nathan Singh had no occasion to execute any will in favour of the plaintiff as the former had great love and affection for the defendant No. 1 and besides the plaintiff was not related to Nathan Singh. The plea of bar of S. 34 of the Specific Relief Act was also noised in the written statement.

( 4 ) IT is not necessary to set out the defence of defendants Nos. 3 to 6. Suffice it, however, to say that they supported the claim of defendant No. 1, though they also asserted that they have been unnecessarily impleaded in the suit.

( 5 ) THE Trial Court dismissed the suit holding that the will set up by the plaintiff had not been proved to have been executed by Nathan Singh. Indeed the finding was that the will was a piece of forgery having been concocted by the plaintiff. It also held that the suit was barred by S. 34 of the Specific Relief Act inasmuch as the plaintiff had not claimed the relief of possession.

( 6 ) THE lower appellate court on appeal by the plaintiff reversed the findings recorded by the trial court. It held that the plaintiff had successfully proved the due execution of the will by Nathan Singh. The plea that the suit was barred by S. 34 of the Specific Relief Act was also rejected. As a result, the appeal was allowed and the suit of the paintiff-respondent was decreed, declaring the plaintiff to be entitled to realize the rent from the defendants Nos. 2 to 6 as the owner of the house.

( 7 ) FOR the defendant-appellant, the first point urged in support of the appeal by Sri G. C. Bhattacharya was that the lower appellate court has erred in law in holding that the suit was not barred by S. 34 of the Specific Relief Act. The contention was that the plaintiff-respondent was admittedly out of possession. A mere relief for declaration that the plaintiff was the owner of the house in suit without asking for the relief for actual possession hence brought in the bar of S. 34 of the aforesaid Act.

( 8 ) I find no merit in the contention. The lower appellate court has rightly observed that the plaintiff could not have claimed actual possession in view of the undisputed fact that the house was in possession of the tenants arrayed as defendants Nos. 2 to 6. The view taken by the lower appellate court is in accord with the view expressed by the Lahore High Court in the case of Gian Chand v. Bhagwan Singh, r