JUDGMENT
M.L. Bhat, J.
1. This civil second appeal is directed against the judgment and decree of Additional District Judge, Srinagar dt. 15-4-1982 by which judgment and decree of the trial court dt. 30-3-1974 was confirmed.
2. The appellant had filed a suit for declaration and injunction against the contesting respondents which was dismissed by the trial court. The trial court held that suit property had belonged to Sohan Chand and the appellant was Sohan Chand’s daughter’s son. It dismissed the suit on the ground that plaintiff was out of possession and since he had not prayed for possession, therefore suit of the plaintiff was liable to be dismissed.
3. On appeal the 1st appellate court found plaintiff’s title also not proved and nor was he held to be the Sohan Chand’s daughter’s son whose property was claimed. In this view of the matter Mr. S. L. Kaul had submitted that there was no concurrent finding of fact with
regard to the title of the appellant and his entitlement to get the property in question. The findings of two courts of the appellant’s title and his entitlements were at variance. Therefore, he submitted that he was entitled, to seek re-appreciation of evidence in the, second appeal so as to convince this court that findings of the 1st appellate court about the appellant’s title were against the weight of evidence and misplaced.
4. It was contended by Mr. Kaul that plaintiff could not have sought relief of possession because at the time of the institution of the suit property in question was in custodia legis as it was under attachment under Section 145, Cr.P.C. Therefore he was not required to pray for possession, The finding of the courts below on this ground is also assailed.
5. Findings of the courts below with regard to the maintainability of the suit on the language of Section 42 of the Specific Relief Act were interpreted by the learned counsel for the parties in a manner which would suit the ends of their, respective clients. Section 42 of the Specific Relief Act governs the suits which are of declaratory nature but a proviso is added to that section which makes it imperative for a plaintiff to seek further relief, if same is available to him along with the relief of declaration. In the present case along with the relief of declaration, relief of possession was also available to the plaintiff. Since he had not claimed it, therefore his suit was hit by proviso to Section 42 of the Specific Relief Act.
6. The question therefore would be whether the plaintiff was in a position to claim a further relief of possession and if so what is the effect of his omission to do so?
7. Mr. Kaul has relied on some authorities to show that relief of possession must be available at the time of the institution of the suit. If it was not available at the time of the institution of the suit, it having not been claimed could not affect the trial of the suit. He has relied on Deo Kuer v. Sheo Prasad Singh, AIR 1966 SC 359. It was held by the Supreme Court that the further relief
contemplated by the proviso to Section 42 of the
Specific Relief Act is relief against the
defendant only. Where the defendant is not
in possession, and not capable tb deliver
possession to the plaintiff, the plaintiff in a
suit for a declaration of title of property need
not claim, possession. In that case before the
Supreme Court the suit property was attached
under Section 145, Cr.P.C. Therefore, Supreme
Court held that it was unnecessary to ask for
the delivery of possession.
8. Even if the criminal court delivers possession to the defendant subsequent to the institution of the suit, the suit was not bad for not claiming the relief of possession because the relief of possession was not available to the plaintiff on the date of the institution of the suit. This proposition is supported by Jagdish v. Rajendra, AIR 1975 All 395, Qabool Singh v. Board of Revenue, AIR 1973 All 158 and Fateh Shah y. Bahab Shah, AIR 1927 Lah 128.
9. In the present case the suit property was delivered to the respondent-defendants during the pendency of the suit and it declared the defendants’ right to possess the property with effect from the date anterior to the filing of this suit. Mr. Choudhary on this basis has submitted that by legal fiction the respondents were in possession before the institution of the suit, therefore, it was incumbent for the appellant to pray for relief of possession also and if that was not done, he could not seek declaration of title. The courts below seem to have taken a very pedantic view in respect of appellant’s being out of possession. On the date of institution of the suit appellant was not in possession because the suit property was attached under the provisions of Cr.P.C. He was not required to claim relief of possession because that could not be claimed against the defendants. Defendants also were not in possession on that date. Relief in a suit for declaration where the additional relief is also sought must be available against the defendants. Relief of possession was not available against the defendants on the date of institution of the suit. Therefore, plaintiffs suit was not hit by proviso to Section 42 of the Specific Relief Act. It could not be dismissed
because plaintiff had not claimed relief of
possession as an additional relief.
10. Assuming that on the date of decree defendants had come into possession by an order of a criminal court the trial court should have given opportunity to the plaintiff, to amend the suit so as to add the relief of possession as an additional relief to the relief already claimed. The suit could not be out-right dismissed for this. The finding of the courts below on this issue therefore does not seem to be warranted.
11. The finding on the issue as to what is the effect of plaintiff being out of possession is therefore held to be bad because plaintiff appears to have omitted to seek relief of possession not deliberately but because the property was in custodia legis and he could not claim its possession from the defendants. The issue about the relief of possession related only to the frame of the suit. That frame should have been permitted to be corrected and it was not a substantial defect in the suit.
12. That would bring us to the title of the appellant and his entitlement on the basis of, title to get the suit property.
13. Plaintiff’s title is denied. He claims as daughter’s son of one Sohan Chand and has led evidence also. I was taken through the evidence by learned counsel for the appellant. Appellant-plaintiff had to prove that the suit property belonged to Sohan Chand and he was Sohan Chand’s daughter’s son and was entitled to claim the property.
14. Plaintiff had stated in his plaint that Sohan Chand’s property had devolved on Kashi Nath who was plaintiffs maternal uncle and Smt. Bhawani Devi, the maternal grandmother of the plaintiff. The said Kashi Nath is said to have died in February, 1961 and the property passed on to Bhawani Devi. The said Bhawani had died in April, 1962 and thereafter it passed on to the plaintiff as exclusive owner.
15. The title set up by the plaintiff in the plaint to the property of Sohan Chand, which had gone to Kashi Nath and then to Bhawani
does not seem to be established. It is said that Bhawani died in 1962 and she came in possession of the property as widow of the deceased. She became absolute owner. Her property could not be inherited by the appellant even if it is assumed though not admitted that appellant is the son of Sohan Chand’s daughter, Janki Devi.
16. Another defect with the appellant is that he has not been able to establish that he was the son of Janki daughter of Sohan Chand. There is no evidence, much less cogent, to establish that he was son of Janki.
17. Beli Ram PW has said in his examination that Janki Devi was from the first wife of Sohan Chand. He had heard it and he had no personal knowledge. He has not been able to establish that Janki Devi was daughter of Sohan Chand.
18. Jia Lal Bhagat also has not been able to establish that appellant was son of Janki Devi.
Sham Lal PW has said nothing about it,
Dina Nath Chopra PW says that when Sohan Chand died, his second wife Bhawani was living. Janki was the daughter from his first wife. He has said that Janki was daughter of Sohan Chand, but on the basis of his statement, appellant is not proved to be son of Janki Devi.
19. Lachman Dass is another witness who has given the hearsay account of Sohan Chand’s daughters and plaintiff’s relationship with Janki Devi.
20. Therefore, on the basis of the evidence led by the appellant it is very difficult for this court to hold that appellant is the son of Janki Devi, as he claims the property only as son of Janki Devi who in turn is daughter of Sohan Chand from his first wife. If he has not been able to prove his contention, he cannot lay hand on any portion of the suit property which had first belonged to Sohan Chand, he has to establish by cogent evidence not only that he was Janki Devi’s son, but inherited the property which he claims now. Neither he has proved that he was son of Janki Devi,
nor he has proved that Janki Devi had inherited the property of Sohan Chand. Therefore, appellant’s title on the suit property is not established and he has failed to prove, it.
21. The findings of the trial court on issues Nos. 1 and 2 seem to have been rightly upset by the 1st appellate court.
22. Mr. S. L. Kaul’s reference to certain documents on record to show that property was divided between Gopi Chand, Kashi Nath and Sohan Chand, has no relevance to the present controversy. It would be relevant if appellant’s title could be establihed to the suit property. It is established on evidence also that after Kashi Nath’s death Sohan Chand’s property had remained in possession of Bhawani Devi. The appellants claim over Bhawani Devi’s property cannot be upheld and it has rightly been repelled by the first appellate court. I have found no infirmity in the judgment of the 1st appellate court with regard to the title of the property not being with the appellant. The finding on this issue by the trial court was based on no evidence, therefore, it was rightly set aside by the 1st appellate court. That being so, this civil second appeal has no force and merits dismissal.
23. The result is that the civil second appeal fails and is accordingly dismissed. There will be no order as to costs.