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10. Learned counsel for the defendant/appellant has submitted that the trial court has committed patent error of law in decreeing the suit which was instituted for the relief of declaration simplicitor without any relief of injunction and it was not maintainable. The will was silent with respect to the rights of the roof. It remains joint property of the legal heirs of the testator, namely, plaintiff and the defendant and plaintiff cannot claim any exclusive right over the same. In case the plaintiff/respondent raises construction over and above the first floor, it may cause damage to the entire building and thus, no such right has been given to the plaintiff in the will. There is a common water tank on the roof of the first floor which is being used by both the parties. The finding of the court below that the mother of the parties intended to give equal rights to them, is incorrect and not mentioned in the will. Without framing any issue on easementary right and in the absence of any pleading in the plaint, the trial court has granted exclusive right to use staircase to the plaintiff/respondent. The defendant claimed exclusive right over the roof and the finding of the trial court that his right over roof is an easement, is wrong. The finding of the trial court that plaintiff can raise construction over and above the first floor is not in accordance with the material on record. What has not been given in the will cannot be given by the court. The remaining brothers and sisters who were also legal heirs of the testator were not made party to the suit and therefore, it suffers from non-joinder of necessary parties. The terrace rights/roof rights are distinct and substantive rights of the defendant independent of ownership of first floor in the building which cannot be presumed to be in exclusive ownership of the plaintiff/respondent. The suit for a decree of declaration simplicitor filed by plaintiff was not maintainable as per judgement of the Apex Court in the case of Venkataraja Vs. Vidyane Doureradjaperumal, (2014) 14 SCC 502.

11. Learned counsel for the plaintiff/respondent has submitted that the language of the will is quite unambigious and it clearly provides that the ground floor of House No. K.G-26, Kavinagar, shall be owned by testator's younger son, Kamlesh Kumar. He will be free to use the same as he likes. It was even stated that the ownership of upper portion of the same house shall go to my middle son, Umesh Kumar. In case, he does not wants to live therein, he will consult Kamlesh Kumar and do whatever he likes. It has been submitted that no evidence was led by the plaintiff to prove that there was any other interpretation of the will. The will was very clear regarding the shares of the parties. The defendant was rightly held by the trial court to be disentitled to claim his easementary rights on the terrace. He has further submitted that in the suit for declaration simplicitor against a person who denies right to a property to a person legally entitled thereto, the proviso to Section 34 of the Specific Relief Act will not be attracted. In this case the plaintiff did not needed any further relief since he was in possession of property as its owner on the basis of will.

(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.

18. A perusal of Section 34 of the Specific Relief Act shows that a suit for declaration simplicitor will lie against defendant since he was denying the right of the plaintiff to part of the property bequeathed on him by the will of his mother. He sought declaration from the court by instituting the suit only for the purpose of getting a document certifiying his right to the bequeathed property since the defendant was not cooperating with him in getting the map sanctioned from Ghaziabad Development Authority and in getting permission from other government offices. Since the will was the only document in his possession, the plaintiff was unable to prove his right without a declaration from the court. The will was also not probated. Hence, the suit for declaration simplicitor was maintainable since the plaintiff was not in the need of any other further relief against defendant. He was already in possession and there was no threat from the defendant regarding invasion of his possession. Therefore, the suit was not barred by Section 34 of the Specific Relief Act. Regarding bar of Section 38 of the Specific Relief Act, this Court finds that under Section 38, an injunction restraining the defendant from disturbing possesion may not be granted in favour of plaintiff unless he proves that he was not in actual possession of the suit property on the date of institution of the suit. Permanent injunction can be granted only to a person who is in actual possession of the property on the date of suit. In the present case, there was no issue of perpetual/permanent injunction involved since defendant was not disturbing the possession of the plaintiff. The plaintiff had instituted the suit only to get a declaration that he is rightful owner in possession over the entire upper portion of the House No. K.G-26, Kavinagar, Ghaziabad. There was no threat to his possession and therefore, he was not in need of any permanent injunction against the defendant. From Section 38(3) of the Specific Relief Act, it is clear that a perpetual injunction may be granted to a plaintiff when the defendant invades or threats to invade the plaintiff's right of enjoyment of property; where the invasion is such that compensation in money would not afford adequate relief and where injunction is necessary to prevent multiplicity of judicial proceedings.