PHERANIYA Vs. MAUJI LAL

JUDGEMENT

(1.) This second appeal is by the defendants who have lost in both the courts below. They have preferred this appeal aggrieved by the impugned judgment of the two courts below declaring respondents No.2 and 3 owner of one fourth undivided share each in the suit property comprising of total area of 9.615 hectares forming part of several survey numbers in village Ghousa, Tahsil Kurwai, District Vidisha. The Courts below vide the impugned judgment and decree have also directed the revenue authorities to delete the names of the appellants from the khasra entries and in its place substitute the names of respondents No.2 and 3 as owner in respect of half undivided share in the suit property.

(2.) This appeal was admitted for final hearing by this Court vide its order dated 29 th October, 2005 on the following substantial question of law : Whether the mere suit for declaration filed by the respondent plaintiff is maintainable without consequential relief in view of section 34 of the Specific Relief Act ?

(3.) Briefly stated the facts of the case giving rise to this second appeal are that the respondents No.2 and 3 along with their late mother Kasturi Bai had filed a civil suit for declaration and mandatory injunction against the appellants as also against respondents No.4, 5 and 6. The declaration that was prayed by the respondents No. 2 and 3 in their suit against the appellants was that they be declared owner of one fourth undivided share each in respect of half undivided share in the suit property left by their late father Nirpatia at the time of his death in 1978. It was alleged by respondents No. 2 and 3 in their suit that the appellants have wrongly got the entire suit property mutated in their names with the revenue authorities and, therefore, a declaration was sought by them that they both are entitled to one fourth undivided share each in the suit property and a consequential prayer was made for direction to the revenue authorities to delete the names of the appellants and substitute their names to the extent of their share in the suit property. The suit as filed by respondents No. 2 and 3 against the appellants has been decreed by both the courts below in their favour. The appellants in their written statement had taken a preliminary objection to the maintainability of the suit on the ground that the suit as framed was not maintainable without making a prayer for consequential relief of possession. Issue No.6 was framed by the trial court on this objection to the maintainability of the suit taken by the appellants in their written statement. This issue regarding maintainability of the suit was decided by the trial court as also by the first appellate court in favour of respondents No.2 and 3 as it was found that respondents No. 2 and 3 being the co-owner of the joint family property left by their late father were deemed to be in possession of the suit property and, therefore, they were not required to make a separate prayer for consequential relief of possession in the suit. This second appeal has been admitted for final hearing only on one substantial question of law as to whether the suit filed by respondents No.2 and 3 against the appellants was maintainable in the absence of prayer for consequential relief of possession in view of the provisions contained in section 34 of the Specific Relief Act,1963 ( for brevity, the Act ).