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2019 Supreme(All) 2477
IN THE HIGH COURT OF ALLAHABAD
Sudhir Agarwal, J.
Smt. Paudhari – Appellant
Versus
Paras Nath Singh – Respondent
Second Appeal No. 3650 of 1978
Decided On : 16-01-2019
Advocate Appeared:
For the Appellant : S.K. Verma, Siddharth Verma
For the Respondent: L.S. Srivastava
Point of law: declaration of the rights or status is one of discretion of the court under Section 34 of the Specific Relief Act, 1963. Equally the grant or refusal of the relief of declaration and injunction under the provision of that Act is discretionary
Headnote:
Code of Civil Procedure,1908 – Section 100 – Specific Relief Act, 1963 – Section 34 – Possession – Relief -Before granting or refusing to grant of relief of declaration or injunction or both the court must weigh pros and cons in each case, consider the facts and circumstances in their proper perspective and exercise discretion with circumspection to further the ends of justice
Facts of the case : Whether the relief of declaration could be granted without being sought – Whether the relief of declaration simplicitor without granting the relief for possession be granted
Finding of the court: Held, what could have been transferred by Defendants II set to plaintiffs is that much property to which they had any share and not beyond that – To term it as declaration and making out a new case is clearly erroneous, since it is necessarily and integrally connected incidental issue, mostly found in a case where parties fight for possession over some immovable property and before granting relief of possession, rival claim of title becomes necessary to be decided by Courts below – Hence, both substantial questions of law as formulated above, are answered against appellant – No other point has been raised before this Court.
Result: Appeal Dismissed.
JUDGMENT :
1. This is defendant's appeal under Section 100 of Code of Civil Procedure (hereinafter referred to as 'CPC') arising from judgment and decree dated 16.08.1978 passed by Sri M. C. Jain, Ist Additional District Judge, Ghazipur in Civil Appeal No.73 of 1977 whereby appeal was allowed and judgment and decree dated 30.04.1977 passed by Sri S. N. Pandey, IIIrd Additional Munsif, Ghazipur in Original Suit No.127 of 1967 was set aside and suit of plaintiffs was decreed.
2. This appeal was admitted on following two substantial questions of law:-
“(i) Whether the relief of declaration could be granted without being sought?
(ii) Whether the relief of declaration simplicitor without granting the relief for possession be granted?”
3. Record shows that plaintiff instituted Original Suit No. 127 of 1967 vide plaint in the Court of Munsif, Ghazipur seeking following reliefs :-
^^¼v½ olnwj fMxzh eqnb;ku dks dCt+k n[ky Åij edku r] [k] t] > ;k ml tqt t+ehu eqtkgjk cg:Q d] [k] x] ?k eqtkgjk uD+'kk tSy vftZukfy'k ftlls eqnb;ku dh csn[kyh vnkyr ds lehi eqrlOoj gS o csn[kyh eqn~nkysgwe Qfjd vOoy fnyok fn;k tk,A
¼c½ dqy [kpkZ eqdnek ftEek eqn~nkysgwe vk;n fd;k tk,A**
“(A) That a decree of possession be passed in favour of plaintiffs over house shown by letters 'Ta', 'Kha', 'Ja', 'Jha' or part of land shown by letters 'Ka', 'Kha', 'Ga' and 'Gha' in the site map at the bottom of suit in question after dispossessing defendant no.1 for which plaintiffs' suit is under consideration before this Court.
(B) Total cost of suit be imposed upon defendants.”
(English Translation by Court)
4. Plaintiff Parasram Singh, Sarjoo Singh, Sheo Devi Singh, Ram Janam Singh, Ram Chandra Singh impleaded Dasai Ahir, Jagganath Sonar, Smt. Dhania, Bhagwati, Smt. Mueshwari and Shiv Parson as defendants and instituted above suit for possession over house in dispute after eviction of defendants Dasai, Jagganath, Smt. Dhania, Bhagwati i.e. defendants 1 to 4.
5. Admittedly, pedigree as given in Lower Appellate Court (hereinafter referred to as “LAC”) is as under :
| Munnu | ||
| Komal | Bishwanath | Bindeshwari (Smt. Dhania alias Ghutani) |
| Bhagwati | ||
6. The plaint case set up by plaintiffs is that land, shown by letters “ka, kha, ga, gha, and house by letters “ta, kha, ja, jha”, situated in village-Karanda, District-Ghazipur, was 'Dih' of said village and its partition took place in 1905. At that time, land in dispute and that beneath the disputed house came to be numbered as 307, 308 and 318. House of Komal existed on part of such land and rest was left as Sahan. Komal by profession was a goldsmith and died about 60 years before filing of suit i.e. sometimes in 1917. His son Bishwanath predeceased him. Before death, Komal, due to his old age, kept with him one Ram Gulam resident of village-Mudiari, who was son of his sister, to look after Komal in his old age. After death of Komal, Ram Gulam returned to his village, but used to visit village-Karanda to see his relatives thereat. Bindeshwari son of Bishwanath also took up profession of goldsmith after death of Komal. About 14 or 15 years before filing suit, Bindeshwari also died. At the time of his death, his son Bhagwati was minor. Bindeshwari's widow Smt. Dhania kept with her Lali son of Ram Gulam to help her in running the household. Lali had come along with wife Muneshwari. Smt. Dhania and her son Bhagwati could not do well to maintain them and in the meantime, their house also fell down and became 'khandahar' except 'Osari' shown by letters “ta, kha, ja, jha” in the plaint map. On 08.03.1967 Defendants II Set i.e. Smt. Dhania, widow of Bindeshwari, executed a sale deed of disputed house in favour of plaintiffs and put them in possession thereof. Thereafter, vendors left village-Karanda and migrated to village-Rampur Majha to earn their livelihood. Lali and his wife Muneshwari lived in the disputed house as licensees.
