Punjab-Haryana High Court
Didar Singh vs Mohinder Singh on 15 May, 2003
Equivalent citations: (2003)135PLR529
JUDGMENT M.M. Kumar, J.
1. This is plaintiffs second appeal filed under Section 100 of the Code of Civil Procedure, 1908 challenging concurrent findings of facts recorded by both the Courts below holding that the defendant-respondents are in possession of the suit land and the sale deed Ex.D6 propounded by the defendant-respondents is not the result of any fraud or forgery. It has further been held that once it is established that the plaintiff-appellants are not in possession, then no permanent injunction could be issued against the defendant-respondents. It has also been held that a suit for declaration and permanent injunction simpliciter would not be competent without seeking the relief of possession. This has been provided by proviso to Section 34 of the Specific Relief Act, 1963 (for brevity, 'the Act'). The aforementioned proviso came up for consideration before the Supreme Court in Ram Saran and Anr. v. Smt. Ganga Devi, A.I.R. 1972 S.C. 2685. In such a situation the suit would be hit by Section 42 of the Act. The observation of their Lordships read as under;-
"We are in agreement with the High Court that the suit is hit by Section 42 of the Specific Relief Act. As found by the fact-findings Courts, Ganga Devi is in possession of some of the suit properties. The plaintiffs have not sought possession of those properties. They merely claimed a declaration that they are the owners of the suit properties. Hence, the suit is not maintainable. In these circumstances, it is not necessary to go into the other contention that the suit is barred by limitation."
2. In view of the above, there is no room to interfere with the concurrent findings of facts recorded by both the Courts below. No question of law much less substantive question of law has been raised nor any such question on perusal of judgments of both the Courts below arises warranting admission of this Appeal.
3. For the reasons recorded above, this appeal fails and the same is dismissed. In view of the fact that appeal is being dismissed on merits, I do not wish to pass any order on the application seeking condonation of delay.