AMNA BI Vs. AZIZ ­UR- REHMAN DECD.

JUDGEMENT

(1.) THIS second appeal is filed under Section 100 CPC impugning the concurrent judgments of the courts below; of the trial court dated 27.1.2004 and the first appellate court dated 18.3.2010; whereby the suit of the respondent -plaintiff for declaration of ownership has been decreed. Respondent no.1 (now represented by his legal heirs) was the sole plaintiff in the trial court. The plaintiff was declared to be the owner of the suit properties bearing nos. 431 and 486, Shehzada Bagh, Inderlok, Delhi.

(2.) A reference to the impugned judgment shows that the appellants/defendants claimed that ownership of the suit property came to Habib -Ur - Rehman, real brother of plaintiff Sh. Aziz -Ur -Rehman (appellants no.2 to 6 being the children of late Habib -Ur - Rehman), because, as per the case of the appellants -defendants there was a family settlement between the plaintiff Aziz -Ur -Rehman and his brother Habib -Ur -Rehman whereby the suit properties fell to the share and ownership of Habib -Ur -Rehman.

(3.) LEARNED counsel for the appellants argued before this Court that the suit is barred under the proviso to Section 34 of the Specific Relief Act, 1963 because the plaintiff should have filed a suit claiming consequential relief of possession and/or partition. Reliance in support of this argument is placed upon the judgment of the Supreme Court in the case of Ram Saran and another Vs. Smt. Ganga Devi AIR 1972 SC 2685.