RSA No.1868 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1868 of 2006 Date of Decision: 06.05.2010. Rakesh Kumar Jain and others .……Appellants Versus District Red Cross Branch/Society and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Avnish Mittal, Advocate for the appellants. Mr. I. S. Mann, Advocate for respondent No.1. Mr. J. S. Brar, Advocate for respondent Nos.2 to 5 and 7. Mr. R. S. Rangpuri, Advocate for respondent No.6. L. N. MITTAL, J (ORAL) Plaintiff Nos.1 to 3 and 6 to 9 have filed the instant second appeal, after the plaintiffs (appellants and respondent Nos.8 to 10) remained unsuccessful in both the Courts below. The plaintiffs' claim is that pursuant to advertisement dated 01.07.1997 in newspaper, the plaintiffs approached defendant No.1, District Red Cross Society, Muktsar for allotment of sites of shops/show rooms and accordingly plaintiffs No.1 and 2 were allotted site of shop No.2; plaintiff Nos.3 and 4 were allotted site of Shop No.1; plaintiff No.5 was allotted site of shop No.3; Plaintiff No.6 was allotted site of Shop No.4 and plaintiff Nos.7 to 10 were allotted site of Shop No.5. The plaintiffs also paid various amounts to defendant No.1. However, defendant No.1 re-advertised the said sites in newspaper on 12.10.1997 for auction on 15.10.1997. Thereupon the RSA No.1868 of 2006 -2- plaintiffs filed suit for permanent injunction on 15.10.1997. By amendment, the plaintiffs pleaded that agreements dated 17.10.1997 were executed between the plaintiffs and defendant No.1 regarding allotment of the aforesaid sites. The plaintiffs sought relief of declaration and injunction restraining the defendant No.1 from allotting the disputed sites to any other person and from auctioning the same on 15.10.1997. It was also claimed that the subsequent proceedings of auction were null and void and liable to be cancelled and not binding on the plaintiffs. It was also claimed that allotment of the sites in favour of the plaintiffs is legal and valid. Alleged cancellation of allotment of the sites to plaintiffs is illegal, null and void. Defendant No.1 inter alia pleaded that the plaintiffs did not deposit the auction money and allotment in favour of plaintiffs was cancelled and the plots were re-auctioned in favour of defendant Nos.2 to 7 for Rs.38,30,000/- whereas earlier the plots had fetched Rs.20,00,000/- only. Auction in favour of respondent Nos.2 to 7 has been confirmed. Various other pleas were also raised. Defendant Nos.2 to 6 were also pleaded similar version. Defendant Nos.7 was impleaded later on. He also pleaded similar version. Learned Civil Judge (Junior Division), Muktsar vide judgment and decree dated 15.05.2002, dismissed the plaintiffs' suit. First appeal preferred by the plaintiffs has been dismissed by learned Additional District Judge, Muktsar vide judgment and decree dated 21.12.2005. Feeling aggrieved, the plaintiff No.1 to 3 and 6 to 9 only have preferred the instant second appeal. I have heard learned counsel for the parties and perused RSA No.1868 of 2006 -3- the case file. I need not to go into the merits of the rival contentions on facts. The plaintiffs are liable to be non-suited as they have claimed relief of injunction and declaration only and have not claimed the relief of possession of the disputed sites. Admittedly possession of the disputed sites was never delivered to the plaintiffs. As per their version, if allotment in their favour was valid and never cancelled and allotment in favour of defendant Nos.2 to 7 was illegal, null and void, then the plaintiffs were also entitled to claim the relief of possession of the disputed sites, but they omitted to do so. Consequently, in view of mandatory provision contained in proviso to Section 34 of the Specific Relief Act,1963, declaration asked for, could not be granted. Asking of relief of injunction in addition to declaration could not cure the fatal defect in the suit. The plaintiffs had to claim the relief of possession which they omitted to do. Proviso to Section 34 of the Specific Relief Act, 1963 is mandatory. Since the plaintiffs failed to claim the relief of possession, their suit for declaration, even coupled with injunction could not have been decreed. In view of the aforesaid, there is no need to dilate on the other aspects of the case. The instant second appeal is without any merit and is accordingly dismissed. ( L. N. MITTAL ) JUDGE 06.05.2010. A. Kaundal