decreeing the suit which was instituted for the relief of declaration simplicitor without any relief of injunction and it was not maintainable. The will ... right without a declaration from the court. The will was also not probated. Hence, the suit for declaration simplicitor was maintainable since the plaintiff
under:
"14. .......There is a big gap between the declaration
simplicitor and relief in the garb of declaration. If a
person makes a prayer ... property in his favour then it can be construed as
declaration simplicitor but when a plaintiff seeks any
declaration to dis entitle others right into
settled proposition of law that in a suit for declaration of right
and title, the burden is on the plaintiff to establish his claim ... will lie, and when it is necessary to file a suit for
declaration and/or possession with injunction as a consequential
relief, are well settled
notwithstanding the fact that the suit is filed for
the relief of declaration but the suit is in respect of an
immovable property, Article ... seem to be applicable.
12. A suit for the relief of declaration simplicitor is not
maintainable as per the mandate contained in Section
valued the suit in paragraph -14
of the plaint praying for declaration simplicitor valuing at
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Rs.40,000/- and making payment ... plaintiffs/respondents No.1 and 2 have
brought the suit for declaration simplicitor and permanent
injunction. The objection raised in written statement is on this
would also
submit that the caption of the suit was simplicitor for declaration
and permanent injunction and when there is demand on the part ... caption of the suit would show that the suit was only simplicitor
for declaration and permanent injunction and the valuation of the
suit
Relief Act or the
plaintiffs/respondents can maintain the suit for declaration
simplicitor. Bearing in mind, the background of the case and
rival contentions
bound to ask for possession and; that the suit for
declaration simplicitor was not maintainable.
21. The argument appears attractive but lacks
substance. Hari
costs."
Learned Court under misconception that the decree was
for declaration simplicitor has passed the impugned order.
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// 2 //
However
prayer for relief
present in the plaint is for declaration simplicitor, hence, the fixed Court
fees paid by the respondent No.1 in the plaint
