/ORDER

Bibek Chaudhuri, J. - Judgment and order of remand passed in Title Appeal No.14 of 1992 by the learned Additional District Judge, Tamluk, Midnapur on 6th April, 1999 came under challenge at the instance of the plaintiffs/appellants in the instant appeal.

2. Facts of the case leading to the filing of the instant appeal in a nutshell are as follows:-

3. One Rustam Sha, original plaintiff filed a suit for declaration of title and permanent injunction against the defendants before the 1st Court of the learned Munsif, Tamluk. The said suit was registered as Title Suit No.63 of 1987. In his plaint, the original plaintiff, namely, Rustam Sha, since deceased, alleged that he was the absolute owner by purchase of the piece and parcel of land measuring about 72 decimal out of 90 decimal in dag No.310 of khatian No.67 of mouza Kastokhali within PS Sutahata, District Midnapur. He purchased well demarcated 72 decimal of land described hereinabove by a registered deed of sale executed on 12 March, 1952 from the erstwhile owner, namely Rajanikanta Samanta. After purchase, he had been possessing the said property by cultivation. It was further pleaded by the original plaintiff, since deceased that the name of the father of the original plaintiff was Ujir Sha. Ujir Sha had a brother, named, Najir Sha. Both Ujir and Najir used to live in joint family at village Kastokhali. Though the plaintiff was a son of Ujir Sha during his life time, he used to stay separately and maintained his family with his own earning. The original plaintiff also claimed that he used to work as a mason in Calcutta and also in their locality and accumulated some money after maintaining his family. With the said money the original plaintiff purchased the suit property from the said Rajanikanta Samanta, erstwhile owner. The name of the plaintiff was recorded as the raiyat of the said land in revisional settlement and they published in final published record of rights. However, during LR operation the contesting defendants who are the legal heirs and successors of the uncle of the plaintiff, namely Najir Sha, since deceased, raised certain dispute and claimed joint ownership of the suit property. In order to settle the dispute amicably, a village salish was held in presence of local Panchyat Pradhan and other villagers. In the said meeting, the original plaintiff handed over original deeds and documents in respect of the suit property to the Pradhan of the local Panchyat who in turn issued a receipt in favour of the original plaintiff. It was also mentioned that Ujir Sha and Najir Sha, during their life time purchased various non suit properties in the names of their children. There is no difference or dispute between the parties regarding enjoyment of the said non-suit properties. Since the defendants No.1-9 being the heirs and successors of the said Najit Sha raised a dispute regarding exclusive ownership of the original plaintiff over the suit property, the plaintiff was compelled to file the suit for declaration of his exclusive title over the suit property and permanent injunction restraining the defendants from creating any obstruction in plaintiffs peaceful enjoyment and possession over the suit property.

4. It is pertinent to mention that during pendency of the suit, the original plaintiff, namely, Rustam Sha died and the two sons, widow and daughter of the said original plaintiff were substituted as plaintiffs in the suit.

5. Defendants No.1-9 contested the said suit by filing written statement wherein they denied the material allegations made out by the plaintiffs in his plaint against them. Specific case of the contesting defendants is that Ujir and Najir Sha were two real brothers. Ujir had two sons and two daughters. Original plaintiff Rustam Sha was the second son of Ujir Sha. Najir Sha had three sons and one daughter. Ujir Sha was the karta of the said joint family of Ujir and Najir. Najir Sha died before revisional settlement leaving behind his three sons, one daughter and his widow, named, Renu Bibi. One of the sons of Najir Sha also died leaving behind four sons and one dauther. They are impleaded as defendants No.1-9 in the suit. Specific case of the defendants is that during his life time Ujit Sha used to look after the entire family property as karta. From the joint fund Ujir Sha purchased various non suit properties in the names of the plaintiff as well as defendant No.2, Sabed Sha and other sons of him and his brother. The suit property was purchased by Ujir Sha in the name of the plaintiff. The plaintiff had no separate earning he never stayed separately from the joint family as claimed by him. He never worked as a mason in Calcutta or any other place as alleged. The plaintiffs and the defendants jointly possessed the suit property in distinct and demarcated portions as per amicable settlement between the parties. The original plaintiff, Rustam Sha was never the exclusive owner of the suit property by purchase. There are three ponds, paddy land and one mud house on the suit property. The out of the said three ponds two ponds were in possession of original defendant No.1 and 2; one Ganabad and Rabbani possess remaining portion of the suit land. Therefore, the contesting defendants prayed for dismissal of the suit.

6. Original defendants No.10-22 are the heirs of Ujit Sha. They supported the claim of the original plaintiff by filing a separate written statement. They admitted that the original plaintiff, namely Rustam Sha purchased the suit property by his own money which he earned working as a mason in Calcutta and other places. He purchased the suit property from the erstwhile owner Rajanikanta Samanta and had been possessing the same all along since his purchase. Contesting defendants have no right, title and interest over the suit property.

7. During trial, plaintiffs examined as many as five witnesses. Amongst them substituted plaintiff No.1 deposed in the suit as PW1, PW2 Md. Mahasin Sha, PW3 Ganabdi Sha, PW4 Biddut Kumar Samanta and PW5 Himangshu Sekhar Shaw are the local witnesses who supported the plaintiffs case. The contesting defendants also examined four witnesses. Defendant No.1 Sahid Sha deposed in the suit as DW1, DW2 Ram Chandra Pramanik and DW3 Mukunda Mohan Samanta are local residents and cultivators. They have their landed properties adjacent to the suit land. DW4 is an Advocate of Tomluk Court who was appointed as a commissioner for local inspection of the suit property. He submitted his report of local inspection during trial of the suit.

8. The learned Munsif, 1st Court at Tomluk on due consideration of evidence on record, both oral and documentary, decreed the suit on contest in favour of plaintiffs.

9. Being aggrieved by and dissatisfied with the judgment and decree passed by the learned Munsif, 1st Court at Tomluk, the contesting defendants No.1-9 preferred Title Appeal No.14 of 1992 in the court of learned Additional District Judge, Tomluk.

10. By impugned judgment dated 6th April, 1999, the learned Additional District Judge, Tomluk allowed the appeal, set aside the judgment and decree passed by the learned trial court and sent the suit back on remand with a direction to dispose of the same as per indication given in the body of the judgment and in accordance with law.

11. It is necessary to reproduce the observation made by the learned Additional District Judge, Tamluk while disposing of the appeal that led him to set aside the judgment and decree passed by the learned trial court and to send the suit back on remand for fresh trial.

"The ld. Munsif passed decree of permanent injunction in respect of the suit property i.e. 72 decimal of land. If the defendants actually dispossessed the plaintiffs from some portion of the suit property then decree shall be infructuous. In my view, to get rid of such difficulty the location of the house constructed by the defendants should be ascertained first by way of investigation commission and if such dispossession is actually found amendment of plaint specially the prayer portion is required to be amended.

Taking such consideration I intend to remit the suit on remand with a view to give an opportunity to plaintiffs for submitting a prayer before the ld. court below for Investigation Commission to ascertain the actual location where the defendants constructed house forcibly and if it is found that the defendants versions are true then to take steps for amendment of the plaint as per Provisions of Law. The ld. Munsif is to allow the prayer of the plaintiff, if any, to that effect and thereafter, to dispose of the suit after observing all formalities. To dispose of the suit, the ld. Munsif shall rely on the evidence of the parties already on record and evidence which may likely to come after remand for which it is being given."

12. Mr. Asis Sanyal, learned Advocate for the appellants submits that joint family system is not recognized in Muhamaddan Law. The heirs are only the immediate family members of a person. Also, the Muslim makes no differentiation between self acquired and inherited property. Hence, all the property of the concerned person goes to the heirs. Under Muhammedan Law, there is no such concept applicable or available as that of joint Hindu family or anything as a joint Hindu family property. He further submits that the concept of joint family property is alien to Muslim Law and further that there is no evidence on record to prove that the property in dispute was jointly acquired from funds of joint family members. On the other hand, the title deed in respect of the suit property stands in the name of Rustam Sha, original plaintiff and predecessor-in-interest of the present appellants. The suit property was recorded in finally published Record of Rights in the name of the predecessor-ininterest of the present appellants. The learned trial judge considering the title deed and the relevant entry in the Record of Rights decreed the said suit in favour of the plaintiffs/appellants.

13. It is further submitted by Mr. Sanyal that the learned judge in the 1st Appellate Court allowed the appeal by setting aside the judgment and decree passed by the learned trial judge on the ground that the learned trial judge did not consider that the defendants/respondents are in possession of a portion of the suit property. Secondly, during local inspection the learned Advocate Commissioner found that a mud wall of a room was being constructed by the defendants. Therefore, the learned judge in 1st Appellate Court held that the suit was hit by the proviso to Section 34 of the Specific Relief Act. It is urged by Mr. Sanyal that from the local inspection report it is found that a house was allegedly constructed about 2-3 months before the local inspection. Thus, it can safely be held that the house was allegedly constructed during the pendency of the suit. According to Mr. Sanyal, the object of the proviso to Section 34 of the Specific Relief Act is to avoid multiplicity of proceedings and to prevent grant of relief in successive suits. So, the proviso lays down that a bare declaration shall not be granted if the plaintiff is entitled to some further relief flowing from his declaratory right. Thus, the statute provides that on the date of institution of the suit if the plaintiff is entitled to get further relief other than mere declaration of his title, the suit will be bad if no such relief is prayed for at the time of institution of the suit. If the appellants were illegally dispossessed from the suit property or any part thereof before the institution of the suit, the suit would have been barred under proviso to Section 34 of the Specific Relief Act for plaintiffs/appellants failure to claim recovery of possession along with declaration of their title over the suit property.

14. In the instant case, it is urged by Mr. Sanyal, the appellants clearly, candidly and explicitly pleaded that the original plaintiff, Rustam Sha and after his death the present appellants are in possession of the entire suit property without any deterrence by the contesting respondents. Under such circumstances, it is not at all necessary for the appellants to make further prayer for recovery of possession of the suit property against the defendants/appellants. Therefore, the impugned judgment is absolutely perverse and required to be set aside.

15. Mr. Sanyal next refers to Rule 24 of Order XLI of Code of Civil Procedure and submits that where all the evidence is on the record, the Appellate Court is competent to determine the suit finally. The learned judge in 1st Appellate Court failed to consider this provision contained in the CPC and proceeded to dispose of the 1st Appeal under Order XLI Rule 23 of the CPC. Rule 24 enjoins on an Appellate Court to determine a case finally where evidence on record is sufficient for enabling it to pronounce a judgment. In the instant case, both the contesting parties led their evidence in full. There was no prayer from either of the contesting parties for recording additional evidence under Order 41 Rule 27 of the CPC before the 1st Court of Appeal. The learned Judge in the 1st Appellate Court absolutely misdirected himself in placing undue reliance on the proviso to Section 34 of the Specific Relief Act and remanded the suit back to the trial court with a liberty to the plaintiffs/appellants to amend the plaint stating grounds and necessary prayer for recovery of possession of the suit property. It is not at all necessary for the appellants to amend the plaint and pray for recovery of possession when it was proved from the Advocate Commissioners report of local inspection that the defendants/respondents tried to encroach upon a portion of the suit property during the pendency of the suit.

16. Learned Advocate for contesting respondents, on the other hand, submits that if a question is not raised in the grounds of appeal, the appellants are not entitled to raise such ground in course of argument. In support of her contention, learned Advocate for the respondents refers to a decision of Honble Supreme Court in the case of Hind Builders vs. Union of India, (1990) 3 SCC 338 [LQ/SC/1990/273] in order to substantiate his contention, learned Counsel for the respondents draws my attention to the memorandum of appeal where the appellants urged in ground No.II that the learned Appellate Court was wrong in holding that Muhameddam Law does not recognise the joint family as legal entity and ground No.III that the learned Appellate Court was wrong in holding that Ujir Sha purchased the ejmali property and the name of Ujir Sha was wrongly recorded in the record of rights. Thus, the appellants specifically urged that in Muhammadan Law, there exists a concept of joint family. Now the learned Counsel for the appellants cannot argue that Muhammadam Law does not postulate the concept of joint family and joint family property like that of Hindus. In other words, it is contended by the learned Counsel for the respondents that what is not pleaded as ground of attack in the appeal, cannot be considered. Since the appellants in their memorandum of appeal has conceeded that the suit property was joint family property of both the appellants and respondents, the contention on behalf of the plaintiffs/appellants that the suit property was self acquired property of the plaintiffs/appellants, therefore, would fail and liable to be rejected.

17. I have heard learned Advocates for the appellants and contesting respondents.

18. It is found from the order dated 25th January, 2000 passed by the Division Bench of this Court that the Court simply directed the appeal to be heard while admitting the appeal under Order 41 Rule 11 of the CPC. However, substantial question of law on which the appeal would be heard, was not framed by the Division Bench of this Court vide order dated 25th January, 2000.

19. Having heard the submission made by the learned Counsels for the appellants and respondents and on perusal of the judgments passed by the learned trial court and learned 1st Appellate Court and also on due consideration of evidence, both oral and documentary lying in lower court record, I am of the view that this court is under obligation to decide the following substantial question of law:-

a) Whether the learned 1st Appellate Court substantially erred in law in allowing the appeal holding, inter alia, that the suit was defective under the proviso to Section 34 of the Specific Relief Act and no effective decree could be passed in the suit without specific prayer for recovery of possession.

20. It is needless to say that Muhammedan Law does not recognize the right of any one of the shareholders being tenants in common, for the acting on behalf of the co-sharers as laid down in Abdul Majid Khan Sahid vs. Krishnamachariar, (1918) AIR Madras 1049 (FB). The Honble Supreme Court again in Kasambhai Sheikh vs. Abdulla Kasambhai Sheikh, (2004) 13 SCC 385 has held that succession in Muhammedan Law is in specific shares as tenants in common. Muhammedans are never joint in estate, but only tenants in common. It is an established principle of Law that a Muhammedan heir is not a coparcener. He has got merely a right to defend an immediate share in each portion of the estate, but if any portion of the estate is, in any case, partitioned from the rest of the estate, he has a right to an immediate share in that portion. In other words, concept of joint family property is alien to Muslim Law. Learned Counsel for the respondents insisted upon to hold that the suit property is a joint family property of both the appellants and the respondents in view of the grounds pleaded by the appellants in memorandum of appeal. I am, however, not in a position to accept such argument advanced by the learned Counsel for the respondents on the simple ground that statutory provision, of course, prevails over plea taken as grounds for the appeal. When the Muhammedan Law of inheritance does not recognize joint family property, the court cannot hold a particular property to be the joint properties of the appellants and respondents.

21. The deed of sale, (exhibit-1) clearly shows that property was purchased by Rustam Sha, predecessor-in-interest of the plaintiffs. The property as recorded in the record of rights in the name of Rustam Sha. The learned trial judge considering such evidence on record held the predecessor-in-interest of the appellants the owner of the suit property and passed a decree for declaration of his title in the suit.

22. It is important to note that the learned Judge in 1st Appellate Court in his judgment impugned did not take any contrary view on the question of title of Rustam Sha, the original plaintiff over the suit property.

23. Only question that arises before this court for consideration is as to whether the suit for only declaration of title and permanent injunction shall be defeated under the proviso to Section 34 of the Specific Relief Act when the plaintiff failed to seek relief for recovery of possession.

24. It is vehemently argued by Mr. Sanyal, learned Advocate for the appellants that the suit for declaration of title filed by the predecessor-in-interest of the appellants would not fail if the original plaintiff was dispossessed during the pendency of the suit and he fails to ask for recovery of possession. The proviso is not attracted if the plaintiff is dispossessed from the suit property or any portion thereof during the pendency of the suit. Learned Counsel for the appellants repeatedly reminds the court that the local inspection report suggests that the respondents allegedly tried to raise a mud wall of a room in a portion of the suit property about 2/3 months before the time when the local inspection was held.

25. I am in ad idem with the learned Counsel for the appellants that the proviso to Section 34 of the Specific Relief Act will apply when the plaintiff is entitled to seek further relief on the date of institution of the suit. The plaintiff is neither obliged to amend the plaint nor to seek further relief for recovery of possession on account of subsequent event. If the plaintiff is in possession, he may file a suit for bare declaration only in the event of denial of title of the defendant. Therefore, it is necessary for the court to consider the question as to whether the original plaintiff was under obligation to pray for recovery of possession of a portion of the suit property which was allegedly possessed by the respondents and more importantly, if at all, any portion of the suit property is found to be in possession of the respondents, whether such possession was prior to the institution of the suit or subsequent possession as reflected in the report of local inspection commissioner.

26. In the plaint the original plaintiff stated that cause of action of the suit arose when the defendants denied the title of the plaintiff over the suit property.

27. The defendants/respondents No.2-9 in their written statement pleaded that the different portions of the suit property were being possessed by original defendant No.1, defendant No.2, defendant No.4, defendant No.13 and the predecessor-in-interest of the defendants No.15- 20. Defendant No.13 and defendant No.15-20 filed separate written statement and stated that they were not in possession of the suit property at any point of time and the entire suit property was under the possession of the original plaintiff, Rustam Sha, since deceased.

28. Under the backdrop of the aforesaid pleading, let me go through the evidence of PW1 Mantaj Ali Sha who was substituted amongst other as plaintiffs after the death of Rustam Sha, the original plaintiff. In his cross examination, he stated on oath that at the time of purchase, the nature of the suit property was paddy land. At present the suit property comprises of paddy land, two ponds and kala land and a small house on one corner of the said kala land. He further admitted in his cross examination that the said house was forcibly built by defendant but nobody resides there. It is further found from the cross examination that nature and character of the property was changed nearly 6/7 years ago. During cross examination, PW1 deposed as hereunder:

"The land at the time of purchase was a paddy land- now that comprises of paddy land (1), ponds (2) and Kala land (1) and a small house on that Kala at the corner. That house was forcibly built by the defendant but nobody resides there. There are two batel trees. It is not a fact that it is divided into 4 paddy lands and five trees. For ever, the land is cultivated by us physically. Nearly 6/7 years ago the change was made." (Reproduced from Page 53 of the Paper Book).

29. The aforesaid evidence in cross examination of PW1 was recorded by the learned trial judge on 7th August, 1991. Placing reliance on the cross examination of the PW1, it is ascertained that nature and character of the suit property was changed sometimes in 1984/1985, i.e. prior to the institution of the suit. It is also admitted by PW1 that a small house was forcibly built by the defendants nearly 6/7 years before the date of his deposition, i.e. on 7th August, 1991.

30. Thus, it is clearly established that the nature and character of the suit property was changed from agricultural land to kala land and a house was constructed by the respondents prior to the institution of the suit. Proviso to Section 34 of the Specific Relief Act is applicable if the plaintiff on the date of institution of the suit is entitled to further relief consequential upon a bare declaration. He must not vex the defendant twice. So, he is bound to have the matter settled once for all in one suit. A court will refuse to grant a bare declaration of title of plaintiffs/appellants if it is found that the appellants are entitled to some further relief flowing from his declaratory right.

31. In the instant case, I have already found that the appellants have been able to prove that there the predecessor-in-interest was the absolute owner of the suit property. However, I have come to this conclusion the respondents forcibly changed the nature and character of the suit property prior to institution of the suit and constructed a house thereon.

32. In view of such finding, the plaintiffs/appellants will have to amend the plaint by inserting the relief for recovery of possession of the specific portion of the suit property which is under possession of the respondents for conclusive determination of the dispute between the parties.

33. For the reasons stated above, I hold that though the learned judge in 1st Appellate Court failed to subscribe the reasons in support of his order of remand, his conclusion was is found to be correct.

34. Accordingly, the instant appeal is dismissed on contest.

35. The judgment and order of remand passed by the learned Judge in 1st Appellate Court is affirmed.

36. The plaintiffs/appellants are directed to amend the plaint by incorporating the fact of dispossession from the suit property or any portion thereof by the defendants/respondents and also by incorporating the prayer for recovery of possession of the property in question from which they have been disposed within one month from the date of receipt of lower court records.

37. The respondents are at liberty to file additional written statement, if any, against such amended plaint within 15 days from date of receipt of the amended plaint.

38. The parties are at liberty to adduce evidence only on the question of dispossession of the appellants from the suit property and recovery of possession thereof.

39. The learned trail judge is directed to dispose of the suit property positively within three months from the date of receipt of the lower court record.

Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.