Sunday, 5 January 2020

Whether suit for declaration is maintainable without claiming possession even if plaintiff is not in possession of suit property?

 He further submits that plaintiffs are not in
possession of the suit property therefore, the suit merely for
declaration is not maintainable in view of the bar under section
34 of Specific Relief Act.
7) Having heard the learned counsel for parties and on
perusal of the record it is noticed that parties are members of
same family and suit has been filed by respondents no.1 to
5 plaintiffs with the plea that their ancestor Motilal had
purchased the suit property in the name of his wife Smt.
Sohanbai who was wholly dependent on him having no source
of income to maintain herself. It was further pleaded that
Sohanbai alongwith plaintiffs was residing in the suit property
and when plaintiffs had purchased the separate house, Smt.
Sohanbai had continued to live alone in the suit property. In the
suit, plaintiffs have claimed that they have share in the suit
property and accordingly prayed for partition and also declaring
the gift deed executed by defendant no. 2 in favour of

defendants no. 3 and 4 (petitioners herein) as null and void and
claiming relief of permanent injunction restraining the parties
from changing the nature of or alienating the suit property.
15) So far as the issue of maintainability of the suit for
declaration in terms of Section 34 of Specific Relief Act is
concerned, the trial court has rightly noted that the suit filed by
plaintiffs is as against co-owner for partition, hence the plaintiffs
in possession through co-owner can maintain the suit for
declaration and partition and he is not required to separately
claim possession under section 34 of Specific Relief Act.
HIGH COURT OF MADHYA PRADESH BENCH AT INDORE
(S.B.: HON. SHRI JUSTICE PRAKASH SHRIVASTAVA)
Civil Revision No. 136/2011

Vishal Vs.   Hukumchand (dead) through his L.Rs.& others


O R D E R
(Passed on 22/4/2019 )
Citation: AIR 2019(NOC) 736 MP.
Read full judgment here: Click here
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