The suit for declaration and injunction filed by the plaintiff without challenging the 'Will' and seeking relief of possession was maintainable and not violative of Section 34 of the Specific Relief Act, 1963.

This Second Appeal, preferred under section 100 of Code of Civil Procedure, 1908, is directed against the judgment and decree dated 22.04.1994, passed by Additional District Judge, Haridwar, in Civil Appeal No. 34 of 1991, whereby said court has allowed said civil appeal, and judgment and decree dated 10.05.1990 passed by the trial court (Additional Civil Judge, Roorkee) in suit no. 29 of 1982 was set aside. The trial court had dismissed the suit of the plaintiff which is decreed by the first appellate court declaring the plaintiff as owner of the property in question. The first appellate court also decreed the suit for perpetual injunction restraining the defendants from interfering with the possession of the plaintiff over the property in suit after the same is delivered to her.

2. Heard learned counsel for the parties and perused the lower court record.

3. Brief facts, of the case, are that plaintiff Smt. Phullan @ Phulla (since died) filed the suit for declaration of rights over the property in question and also for the injunction against the defendants, with the pleadings that the plaintiff inherited the property detailed at the foot of the plaint as Schedule A, B, and C being daughter of Late Phool singh who had inherited the property from his father Jeevan. It is stated in the plaint that Phool Singh had two children through his first wife Gyan Devi namely plaintiff Phullan @ Phulla and one Surajbhan (deceased). It is further stated by the plaintiff that Smt. Gyan Devi (W/o Phool Singh) died about forty years (before filing of suit), Surajbhan died about thirty years and Phool Singh died about twenty five years before filing of the suit. It is also pleaded by the plaintiff that before his death Phool singh kept one Chandi Devi with him (after death of his first wife Gyan Devi) through whom he had a son named Rajendra but he too died at the age of nine years. After death of Phool Singh initially name of minor Rajendra was entered into revenue records over property in suit but on the death of Rajendra name of Chandi Devi was recorded to which plaintiff filed objections before the Mutation authorities. On 28.09.1981 Chandi Devi was murdered. It is alleged by the plaintiff that she was murdered by the defendants no. 1 to 5 whereafter defendants no. 2, 3 and 4 got forged a Will purporting to have been executed by Chandi Devi which according to plaintiff is null and void. It is also pleaded in the plaint that proceedings under section 145 and 146 Cr.P.C., were initiated in respect of property in question and SUPURDGAR (custodian) was given possession of the property in suit. Defendant no. 5 and 6 are said to be witnesses of the alleged forged Will and defendant no. 7 is the scribe of the Will.

4. Defendant no. 1, 5, 6, 7 and 8 filed their separate written statements, and defendant no. 2 to 4 filed their joint written statement. Defendant no. 1 in his written statement denied the pleas taken by the plaintiff, and in the additional pleas stated that the plaintiff has no concern whatsoever with the property in suit. He denied that the Will dated 09.02.1978 executed in favour of defendant no. 2 to 4 is a forged document. It is specifically pleaded by this answering defendant that Chandi Devi was the sole owner in possession of the property who executed Will out of love and affection in favour of defendant no. 2 to 4 (who are sons of defendant no. 1). He further specifically denied that the defendant no.1 or defendant no. 2 to 5 committed murder of Chandi Devi.

5. Defendant no. 2 to 4 also denied the contents of the plaint. It is pleaded in their additional pleas that the suit is undervalued and court fee paid is insufficient. It is also pleaded that since the possession of the property in question has been attached under section 145 and 146 Cr.P.C., and the plaintiff being not in possession of the same cannot maintain the suit as the same is barred by Section 34 of Specific Relief Act, 1963. It is also pleaded that sui