1 76.sa326.10 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 326 OF 2010 WITH CIVIL APPLICATION NO. 894 OF 2010 Smt. Ahilya Prabhakar Thakur. ....Appellant. Vs. Shri Harishchandra Ganpat Patil. ....Respondent. Ms. Pooja Thorat h/f. Mr. V.M. Thorat, Advocate for Appellant. Mr. Vishal Khanavkar, Advocate for Respondent. CORAM:- GIRISH GODBOLE, J DATED:- OCTOBER 3, 2011 P.C. 1. Heard Mr. Pooja Thorat, Advocate for the Appellant and Mr. Khanavkar, Advocate for Respondent. 2. The original Defendant in R.C. Suit No. 8 of 2002 has filed the present Second Appeal. That Suit was filed by the Respondent in the Court of learned C.J.J.D. Uran for declaration that he is the legal heir of deceased Ganpat Kalya Patil. The Appellant filed counter claim and apart from opposing the Suit he sought limited 2 76.sa326.10 declaration that instead of Plaintiff, the Appellant/Defendant was the sole heir of deceased Ganpat Kalya Patil. The parties led evidence. The Learned C.J.J.D. Uran decreed the Suit by Judgment and Order dated 31/7/2006 and as a necessary corollary the counter claim was dismissed. Civil Appeal No. 195 of 2006 filed by the Appellant has been dismissed by the learned A.D.J.-1 Alibag by impugned Order dated 31/3/2010 which has given rise to the present Second Appeal. 3. Ms. Pooja Thorat advanced the following submissions : (a) The Suit is hit by Section 34 of the Specific Relief Act, 1963, since, according to Ms. Thorat, the Plaintiff had claimed a mere declaration and had not claimed any other relief including relief regarding entitlement to allotment of 12.5 percent developed plots by CIDCO under the relevant regulations or under the scheme of CIDCO and, hence, the Suit was liable to be dismissed. (b) That the Respondent, by getting such a declaration, would now be entitled to the exclusive allotment of developed plots from 3 76.sa326.10 CIDCO; (c) The land was in fact owned by the Late Kalya Tukaram Patil and hence, in any case, the Appellant, being daughter of Sitabai who is the daughter of Kalya was entitled to be declared as a heir of Ganpat Kalya Patil. 4. I have carefully considered the submission and, in my opinion, none of them have any merit. 5. Perusal of the plaint shows that the Plaintiff had filed Misc. Application No. 34 of 1995 in the Civil Court at Uran under the provisions of the Bombay Regulations Act, 1827 in which the Appellant raised an objection below Exh. 10. As a result of which the said summary proceedings were disposed since in the mean time, the Respondent had filed a substantive suit for declaration in the Civil Court. The suit sought simple declaration that the Respondent was the sole heir of deceased Ganpat Kalya Patil. The Appellant filed counter claim and sought a similar declaration that 4 76.sa326.10 instead of the Plaintiff she was the sole heir of Ganpat Kalya Patil. Evidence was led and on appreciation of the oral and documentary evidence, the Trial Court has recorded a finding that the Respondent is the son of Ganpat Kalya Patil and Bhagirathi Ganpat Patil; both of whom have died on 18/6/1990 and 10/9/1998 and in the absence of any Class-I heir, the Suit was decreed. Once the Respondent is being proved as son, the Appellant, who even according to her is daughter of Sitabai who was the real sister of Ganpat cannot be a Class-I heir and the provisions of Hindu Succession Act, 1956 are very clear in that regard. The Order of succession given in Section 8 clearly shows that if the finding of fact showing that the Respondent is the son of deceased Ganpat Kalya Patil is correct, then the Respondent falls in Class A of Section 8 and it is not the case of the Appellant that there are any other class-I heirs. With this finding of fact, the outcome of dismissal of the counter claim of the Appellant was inevitable. The argument regarding Section 34 is misconceived since section 34 empowers the Plaintiff to file Civil Suit either for declaration of any legal character or for declaration of any right as to any property. The Suit 5 76.sa326.10 filed by the Respondent was of the first category namely declaration of a legal character. Obviously, no declaration regarding any right as to any property had either been prayed for or granted. Ms. Thorat however, urged that since the plaint proceeds on the basis that this declaration was being sought for the purpose of allotment of 12.5 percent developed plot of CIDCO, this Suit must be deemed to be fall in the second category seeking declaration in respect of any right as to any property and in support of this submission relies upon the observations in paragraph-14 of the Judgment of the District Court. I have carefully read entire plaint and there is not even a whisper about allotment of 12.5% plot of CIDCO or in respect of any other right to property. In fact in the counter claim the Appellant had stated in paragraph-8 that with alleged malafide intention in respect of grabbing benefits of the scheme regarding allotment of 12.5% of the developed plots of land which were to be allotted on account of acquisition of lands of late Ganpat Kalya Patil, the Suit was filed and it was further stated that on account of the death of Kalya Tukaram Patil, the properties in question which were acquired had devolved on Ganpat Kalya Patil and his sister 6 76.sa326.10 Late Smt. Sitabai Mokal, the mother of the Appellant. After having pleaded this, the counter claim however, does not seek any relief in respect of any property or right to 12.5 percent of developed plots but seeks only a limited declaration that the Appellant should alone be declared as a sole heir of late Ganpat Kalya Patil. Since the Suit falls in the first category where a declaration of the legal character was prayed for; the submission based on the first proviso of section 34 does not have any substance. The said observation in paragraph-14 of the Judgment of the Appellate Court cannot be interfered in any manner. In my opinion, the argument of the learned Counsel clearly overlooks the provisions of Section 35 of the said Act which provides that a declaration made under this Chapter is binding only on the parties to the Suit, person claiming through them respectively, and, where any of the parties are trustees on the person for whom, in existence on the date of declaration, parties would be trustees. It is therefore obvious that this declaration will operate in personam and considering nature of relief in the suit it is not possible to accept the submission that the Suit is hit by section 34. 7 76.sa326.10 6. In view of the above discussion, there is also no necessity to consider submission (b) as doing so, would be enlarging scope of litigation particularly when CIDCO is not a party to the Suit. 7. In so far as the third submission is concerned, the Appellant having pleaded in the counter claim that the lands in question were originally owned by Kalya Tukaram Patil has clearly failed to seek any relief in the prayers of the counter claim and hence no fault can be found with the Trial Court or the Appellate Court if that aspect was not considered by the said Courts. 8. No question of law arises. The Second Appeal is dismissed. 9. In view of dismissal of the Second Appeal, nothing survives in the Civil Application. The same is also dismissed. (GIRISH GODBOLE, J)