CHHAMMAN KHAN Vs. ALLAH DEE

JUDGEMENT

(1.) This is a Defendant's second appeal. The decree under appeal that was granted by the lower appellate court declares that Plaintiffs Nos. 3 to 8 and Defendant No. 5 are the joint owners of the house in suit and that Plaintiffs Nos. 1 and 2 and Defendants Nos. 1 to 4 have no interest in the same. The trial court had dismissed the suit on the finding that the Plaintiffs were out of possession and Defendant No. 5 alone was in exclusive possession of the house in suit and that, therefore, the Plaintiffs' claim for declaration could not be decreed. Plaintiffs Nos. 1 & 2, Abdul Aziz and Mohammad Sayeed, having died during the pendency of the suit, they are represented by Respondents Nos. 1 to 13 in the second appeal in this Court. Respondents Nos. 14 to 19 were respectively Plaintiffs Nos. 3 to 8 in the suit. The Appellant Chhamman Khan, was Defendant No. 5 and Respondent Nos. 20 to 23 were respectively Defendants Nos. 1 to 4.

(2.) The relationship of the parties except the Defendant-Appellant would be clear from the genealogical table which is given in the trial court's judgment. The Defendant-Appellant is a transferee of the shares of Defendant-Respondents in the house in suit. The trial court found on an appraisal of the evidence on the record that Plaintiffs Nos. 1 and 2 (represented by Plaintiff-Respondents Nos. 1 to 13) had no share left in the house in suit and that the share of Plaintiffs Nos. 3 to 8 (Plaintiff-Respondents Nos. 14 to 19) was 6 Sihams out of 42 and that the Defendant-Appellant was the owner of the balance 36 Sihams. The Plaintiffs, all of whom were the Appellants before the lower appellate court did not challenge the finding of the trial court on the extent of the share of the parties in the house in suit, nor did the Defendant-Appellant who was the contesting Respondent before the lower appellate court challenge the same. The only question canvassed before the lower appellate court was that the decree for declaration could not be refused on the ground that the Plaintiffs were out of possession inasmuch as Plaintiffs Nos. 3 to 8 having been held to be the co-owners of the house along with the fifth Defendant, the claim for declaration could not be refused on any such grounds. It was argued for the fifth Defendant before the lower appellate court that the declaration claimed by the Plaintiffs was that they along with Defendants Nos. 1 to 4 were the exclusive owners of the house in suit, and since it has been found that Plaintiffs Nos. 1 and 2 and Defendants Nos. 1 to 4 were not co-owners of the house in suit, the suit merited dismissal. The argument did not find favour with the lower appellate court and it held that those of the Plaintiffs who had been found to have a share In the house along with the fifth Defendant were entitled to a declaration of their share.

(3.) Before I take up the respective contentions raised by the Learned Counsel for the parties in this Court, I must take note of an application for amendment of the plaint that was moved on behalf of the Plaintiff-Respondents and was rejected by me on 10th July, 1980 for reasons to be given in the judgment which was reserved. The amendment prayed for was, in the clause specifying the court fee payable by seeking to raise the amount payable from Rs. 50/- to Rs. 297.50 on the valuation of the suit at Rs. 1930/-, which was kept unaltered. The other amendment prayed for was by addition of a relief of joint possession. The main reason for rejecting the amendment application was that in a case where the parties are in joint possession as co-sharers, a mere declaration of their right is sufficient and it is not necessary to claim the relief of joint possession.