Hakam Singh vs Baldev Singh

N.K. Kapoor, J.—This is defendant''s appeal against the judgment of the District Judge, Faridkot, by which the appeal filed against the judgment and decree of the SubJudge Ist Class, Faridkot, has been dismissed.

Baldev Singh, Naib Singh and Balwinder Singh sons of Mukhtiar Singh filed a suit alleging that Kapur Singh son of Ishar Singh was owner of the land in question, who died in April, 1974. The said Kapur Singh was putting up with the plaintiffsrespondents and Mukhtiar Singh, who were looking after him. Kapur Singh in a sound disposing mind executed a Will in favour of the plaintiffs on 9th November, 1973, and since then they are in possession of the suit property.

Hakam Singhdefendant resisted the claim of the plaintiffs.

On the pleadings of the parties, the following issues were framed in the case :

(1) Whether Kapur Singh deceased had executed a valid Will in favour of the plaintiff ? OPP.

(2) Whether the plaintiffs are in possession of the land in dispute ? OPP.

(3) If issue No. 1 is proved, whether the defendants are estopped from setting up the Will in question ? OPD.

(4) Whether the plaintiffs are entitled to declaration and injunction as prayed for ? OPP.

(5) Relief.

The trial Court came to the conclusion that Kapur Singh executed a valid Will in favour of the plaintiffs that the plaintiffs were not in possession of the land and that the plaintiffs were not estopped from filing the present suit. The trial Court accordingly granted the declaration sought by the plaintiffs and decreed the suit.

Before the lower appellate Court, once again the matter was appraised in the light of the evidence on record and legal submissions made by the learned counsel for the parties. The appellant Court by a wellconsidered judgment affirmed the findings of the trial Court in respect of issue No. 1. As regards the findings of the trial Court under issue Nos. 2 and 3, the same were not assailed before the appellate Court, and, thus, were affirmed.

None has come present on behalf of the appellant. I have perused the evidence on record and the judgments of the Courts below. Kapur Singh, Hakam Singh and Mukhtiar Singh Sons of Ishar Singh jointly owned 170 Kanals 7 Marlas of land in which Kapur Singh had 1/3rd share. Kapur Singh died issueless. His wife had also died earlier to him. Kapur Singh died in April, 1974. He executed Will bequeathing his property in favour of the plaintiffs on 9th November, 1973, which was registered in the office of the SubRegistrar, Faridkot, on the same day. The present suit was filed by the plaintiffs on the basis of Will since Hakam Singh got his name recorded as owner in the revenue records by means of mutation. The trial Court came to the conclusion that the Will was duly executed by the testator in the presence of witnesses. The trial Court, on the basis of evidence, also found Kapur Singh to be of a sound disposing mind at the time of execution of the Will. The findings of the trial Court have also been affirmed by the lower appellate Court. I find no infirmity in the findings recorded by the Courts below.

The next question raised in the grounds of appeal before this Court is that the present suit is hit by Section 34 of the Specific Relief Act. The plaintiffs filed the present suit for declaration and injunction. The onus to prove issue No. 2 was on the plaintiffs, who, somehow, did not press this issue. The Courts below accordingly decided issue No. 2 against the plaintiffs. This issue was whether the plaintiffs are in possession of the suit land. The appellant, on the basis of this finding, has contended that since the relief of possession was not prayed, the suit is hit by the proviso to Section 34 of the Specific Relief Act. Section 34 of Specific Relief Act reads as under :

"Discretion of Court as to declaration of status or right

Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his titled to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title omits to do so."

In the present case, the plaintiffs claimed their right over the suit land having succeeded on the basis of Will Exhibit P1 executed by Kapur Singh (deceased) against the defendant, who was denying their right and, therefore, the plaintiffs'' suit was for declaration of their title. However, in the given circumstances of the case, the plaintiffs were able to seek further relief than a mere declaration and so they prayed for injunction as well.

The object of proviso to Section 34 of the Specific Relief Act is to prevent multiplicity of suits by preventing a person from getting a mere declaration of right in one suit and then seek the remedy without which the declaration granted would be totally useless.

However, the answer to the question whether it was incumbent upon the plaintiffs to ask for further relief must depend on the facts of each case and such relief must be appropriate to and consequent upon the right or title asserted. Further, relief must be a relief flowing directly or necessarily from the declaration sought i.e. the relief should not only be capable of being granted, but of being enforced by the Court and such relief should be necessary, to make the declaration fruitful.

In the present case, on the frame of the suit, the plaintiffs could ask for injunction in addition to the declaration of their title, which admittedly they prayed. It cannot be termed a suit for declaration simpliciter merely for the reason that in view of the findings of the Courts below under issue No. 2, the further relief sought was not granted. In fact, as per the facts of the case, the issue with regard to possession did not arise since the land was jointly owned by the plaintiffs and defendants and the possession of one coowner is regarded to be possession of all under law.

The plaintiffs and defendants were recorded joint owners of land even before the disputed mutation, that is to say the plaintiffs were coowners and remained so after the declaration as well. Thus, in the circumstances, the only relief which could be sought by the plaintiffs besides the declaration and injunction claimed, was by way of partition of the joint holdings which lay within jurisdiction of Revenue Court since the land in dispute is agricultural land and assessed to land revenue.

Consequently, the appeal is without any merit and the same is hereby dismissed. No costs.