GHANI MOHAMMED Vs. MEERU KHAN

JUDGEMENT

(1.) THIS is a defendants' second appeal and arises out of a suit brought by respondents Nos. land 2 for cancellation of a gift-deed in the following circumstances.

(2.) THE plaintiffs-respondents' case was that the suit property which consists of a house and some land belonged to one Mohamed Khan, Mohamed Khan had a son Ghasi Khan, and both these persons died in Svt. 1974. Ghasi Khan had a son Habib Khan who later died issueless. Bakshu Khan married Ghasi Khan's widow after his death. This Bakshu Khan is the brother of plaintiff-respondent No. 2 Panney Khan. THE plaintiff alleged that Bakshu Khan made a gift of the suit property in favour of the defendant-appellant Gani Mohamed who was his daughter's son, by a registered deed of gift dated 5th March, 1945. THEy claimed that Bakshu Khan had no right whatsoever to make a gift of the suit property, which belonged to Mohamed Khan, to the appellant Gani Mohamed and, therefore, prayed that the gift-deed be declared void and cancelled. THE relationship of the parties will appear from the following pedigree table: - Nizam Khan Kasim Khan Sher Khan Fiaj Khan Dinar Khan Mohd. Khan Meer Khan Ghasi Khan (Pltff. respondent No. 1) Habib Lal Khan Azim Khan Solam Khan Niwaj Khan (Deft. No. 2) Abdul Khan (Deft. No. 3) Bakshu Khan Panney Khan (Pltff-respondent Daughter No. 2) Gani Mohammed Deft. appellant No. 1) This pedigree table was admitted by both parties to the suit as correct.

(3.) BEFORE concluding, I should like to add that even if the present suit were to be considered as a suit for declaration plus cancellation, it would not be maintainable for that reason only and could not be considered to steer clear of the objection under the proviso to sec 42 of the Specific Relief Act. The reason is this. The meaning of the expression "further relief" accusing in the proviso is that the relief claimed must be appropriate to and consequent on the rights asserted but denied. Where, therefore, the plaintiff asks for a declaration that a certain deed of gift was void and that the deed be cancelled, in a case like the present, a prayer for mere cancellation of the deed is not the "further relief" which the plaintiff should have claimed consequent on the right asserted and denied, the requisite further relief would be recovery of possession. It is not any kind of relief that would constitute "further relief" within the meaning of the proviso to sec. 42 of the Specific Relief Act, but it must be a relief appropriate to and consequent on the right or title involved Thus a prayer for a mere injunction, where, on the facts, the appropriate "further relief" claimed would be recovery of possession, would be no answer to an objection under the proviso to sec. 42. What further relief should be claimed is, however, a matter which, depends upon the circumstances of each particular case. Consequently, I am of opinion that in this case the plaintiff being out of possession and the defendant in possession, the "further relief" that was necessary to be claimed was not merely a cancellation of the gift-deed but the recovery of possession, and a suit for mere declaration of title and cancellation of the gift-deed will not be maintainable unless the plaintiffs pray for possession also.