# Smt. Raeesa Bano v. Smt. Tabassum Jahan & Ors

- **Citation:** (2024) 3 ILRA 273
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-28
- **Case number:** Second Appeal No. 428 of 2016
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-raeesa-bano-v-smt-tabassum-jahan-ors-51654
- **Pages:** 6

## Headnote

A. Civil Law - Civil Procedure Code, 1908 -
Sections 9 & 100 - Substantial question of
law - Specific Relief Act, 1963 - Section
34 - Bar of civil suit - Suit of civil nature -
Relief to declare the death of a person on
the ground that he is missing for more
than 7 years was sought from civil court -
Maintainability - Held, the suit at the
instance of the legal heir for declaration of
death of a person is maintainable - There
is no bar u/s 34 of the Act, 1963, for filing
a suit for declaration of a civil death of
another person, if the plaintiff is a legal
heir and such legal character of civil death
is for his benefit and the same is
attributed to such legal character - S. 9 of
CPC permits all suits of a civil nature
except the suits which are expressly or
impliedly barred - The suit for declaration
of any legal character (civil death of a
person) is not specially barred by Section
34 of the Act, 1963 - Suit for mere
declaration of civil death is very well
maintainable and is not barred by Section
34 of the Act, 1963 merely because
further relief was not claimed. (Para 9, 11,
12, 13 and 14)

Appeal allowed. (E-1)

List of cases cited :-
274 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

3 All. Smt. Raeesa Bano Vs. Smt. Tabassum Jahan & Ors.
273

Gurdev
Kaur
(supra)
was
referred to and relied upon in Randhir
Kaur v. Prithvi Pal Singh & Ors. (2019)
17 SCC 71; Two Judge Bench

13.3
In
Santosh
Hazari
v.
Purushottam Tiwari12 a Bench of three
Judges, held as under in regard to what
constitutes a substantial question of law:

a) Not previously settled by law
of land or a binding precedent.

b) Material bearing on the
decision of case; and (c) New point raised
for the first time before the High Court is
not a question involved in the case unless it
goes to the root of the matter. Therefore, it
will depend on facts of each case.

Such principles stand followed in
Government of Kerala v. Joseph [2023
SCC OnLine SC 961] (Two Judge Benh)
and Chanddrabhan Vs. Saraswati [2022
SCC OnLine SC1273] (Two Judge Bench).

13.4
Nonformulation
of
substantial question(s) of law renders
proceedings
"patently
illegal".
This
Court's
decisions
in
Umerkhan
v.
Bimillabi15 and Shiv Cotex v. Tirgun Auto
Plast Pvt Ltd. & Ors.16 indicate this
position. ."

19. In view of above and considering
the over all facts and circumstances of the
case, this Court is of the view that this
second
appeal
has
been
filed
on
misconceived and baseless grounds and no
substantial question of law arises in this
case to be adjudicated between the parties
here-in. Thus, the appeal lacks merit.

20. The second appeal is, accordingly,
dismissed.
----------
(2024) 3 ILRA 273
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.02.2024
BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Second Appeal No. 428 of 2016

Smt. Raeesa Bano ...Appellants
Versus
Smt. Tabassum Jahan & Ors.
 ...Respondents

Counsel for the Appellants:
Alok Mishra, Adnan Ahmad, Dr. Manoj
Kumar Dubey, Roopani Mishra

Counsel for the Respondents:
C.S.C., Mohd. Wajid Irfan, Narendra Kumar
Pandey, Vidhu Bhushan Kalia

A. Civil Law - Civil Procedure Code, 1908 -
Sections 9 & 100 - Substantial question of
law - Specific Relief Act, 1963 - Section
34 - Bar of civil suit - Suit of civil nature -
Relief to declare the death of a person on
the ground that he is missing for more
than 7 years was sought from civil court -
Maintainability - Held, the suit at the
instance of the legal heir for declaration of
death of a person is maintainable - There
is no bar u/s 34 of the Act, 1963, for filing
a suit for declaration of a civil death of
another person, if the plaintiff is a legal
heir and such legal character of civil death
is for his benefit and the same is
attributed to such legal character - S. 9 of
CPC permits all suits of a civil nature
except the suits which are expressly or
impliedly barred - The suit for declaration
of any legal character (civil death of a
person) is not specially barred by Section
34 of the Act, 1963 - Suit for mere
declaration of civil death is very well
maintainable and is not barred by Section
34 of the Act, 1963 merely because
further relief was not claimed. (Para 9, 11,
12, 13 and 14)

Appeal allowed. (E-1)

List of cases cited :-
274 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Sou. Swati & ors. Vs Shri Abhay & Anr.; 2016
Legal Eagle (BOM) 10130

2. L.I.C. of India Vs Anuradha; 2004 (10) SCC
131

3. Saroj Gupta Vs Sanjay Kumar Gupta; 2023
AIR CC 1214

4. Gokul Pandey & ors.Vs Gram Pradhan Gram
Sabha Vill. Bhabnauli Pandey & ors.; 2022 (6)
ADJ 375

5. Anathula Sudhakar Vs P. Buchi Reddy; 2008
(4) SCC 594

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard Sri Adnan Ahmad, learned
counsel for the appellant, Sri Sabul Khan,
learned counsel holding brief of Sri Mohd.
Wajid Irfan, learned counsel for respondent
nos.1 to 5 and Sri Amar Nath Mishra,
learned Additional Chief Standing Counsel
for respondent no.6.

2. Present appeal has been filed
against the judgment and decree dated
18.1.2016 passed by Additional District
Judge, Court No. 15, Lucknow in Regular
Civil Appeal No. 142 of 2015 (Smt. Raeesa
Bano Vs. Smt. Tabassum Jahan & Others)
confirming the judgment and decree dated
31.8.2015 passed by Civil Judge (Senior
Division),
Mohanlalganj,
Lucknow
in
Regular Suit No. 128 of 2015 (Smt. Raeesa
Bano Vs. Smt. Tabassum Jahan & others).

3. This appeal was admitted on
27.02.204 on the following substantial
question of law "whether a suit for
declaration of civil death of a person on the
ground that he is missing for more than 7
years, is barred under Section 34 of the
Specific Relief Act".

4. The crux of the matter is that the
appellant had filed a suit bearing Suit
No.128 of 2015 for the relief that her
husband is missing for more than 13 years;
therefore, he may be declared dead in view
of presumption under Section 108 of the
Evidence Act. In her plaint, she specifically
stated that she had lodged an FIR dated
31.05.2009,
the
publication
in
the
newspaper and required format as well as
notice u/s 80 CPC to the District
Magistrate, Lucknow regarding missing her
husband (Akhtar Ali) for more than 13
years. It was also pleaded in the complaint
that her husband was working in the
Electricity Department, but he did not
attend his duty for more than 13 years, and
unless he is declared dead, she will not be
able to get his service benefit. Though none
of the respondents contested the above suit,
even the State has supported the claim of
the plaintiff appellant.

5. After hearing the parties and on
perusal of the record, the learned Civil
Judge (Senior Division) Mohanlalganj,
Lucknow, vide judgement and order dated
31.08.2015, dismissed the suit on the
ground that the suit for mere declaration of
civil death without further relief is barred
by Section 34 of Specific Relief Act, 1963
(hereinafter referred to as 'the Act, 1963').
Against the order of the learned Civil
Judge, the plaintiff-appellant had also
preferred an appeal before the District
Judge, Lucknow, which was registered as
Civil Appeal No.142 of 2015, and the same
was heard by learned Additional District
Judge, Court No.15, Lucknow, who, after
hearing the parties, rejected the appeal of
the appellant on the same reasoning as of
the learned Civil Judge.

6. Contention of learned counsel for
the appellant is that under Section 34 of the
'Act, 1963' the legal heirs of the person
who is missing for more than seven years
3 All. Smt. Raeesa Bano Vs. Smt. Tabassum Jahan & Ors.
275
can file a suit for declaration of his civil
death, as this legal character will make him
entitled to receive benefits in the missing
person's property. In support of his
contention,
learned
counsel
for
the
appellant has relied upon the judgement of
the Bombay High Court in Sou. Swati &
Ors. Vs. Shri Abhay & Anr reported in
2016
Legal
Eagle
(BOM)
10130;
judgement of the Apex Court in L.I.C. of
India Vs. Anuradha reported in 2004
(10) SCC 131; judgement of Calcutta High
Court in Saroj Gupta Vs. Sanjay Kumar
Gupta reported in 2023 AIR CC 1214;
judgement of this Court in Gokul Pandey
and Others Vs. Gram Pradhan Gram
Sabha Vill. Bhabnauli Pandey and
Others reported in 2022 (6) ADJ 375.

7. Per contra, learned Additional
Chief Standing Counsel has stated that
though in the complaint, the appellant has
mentioned that because of the nondeclaration of death of her husband, who
has been missing for more than 13 years,
she could not get the service benefits of her
husband from the Electricity Department as
he was an employee of the Electricity
Department, but the appellant has not
impleaded Electricity Department as a
party and also no consequential relief was
sought, and the suit is only for a mere
declaration, which is not maintainable
under Section 34 of the Act, 1963.

8. Respondents nos.1 to 5 did not
oppose the appeal and virtually supported
the case of the appellant.

9. After hearing the learned counsel
for the parties and on perusal of the record,
it appears that the suit in question was filed
for the declaration of the death of Akhtar
Ali (husband of the appellant) who was
missing for more than 13 years, and
because of this the plaintiff-appellant could
not get the service benefit of Akhtar Ali,
who was working as a Lineman in
Electricity Department. Therefore, the suit
in question is not only a declaration of civil
death but also to get service benefits for
Akhtar Ali. In the judgement of Bombay
High Court in Sou. Swati & Ors. (supra)
as well as the judgement of Allahabad High
Court in Gokul Pandey and Others
(supra) relied upon by learned counsel for
the appellant, Hon'ble Court observed that a
suit for declaration of civil death of another
person on the part of a legal heir is virtually
a
declaration
of
legal
character
as
mentioned in Section 34 of the Act, 1963.
Therefore, such a suit is maintainable as the
plaintiff is not a stranger to the dead
person. It was also observed in the above
judgement of Allahabad High Court that
the suit at the instance of the legal heir for
declaration of death of a person is
maintainable if he can stand the test that he
is entitled to any legal character, even
though, he cannot lay to immediate claim
to any property. Paragraph no.7 of Sou.
Swati & Ors. (supra) of Bombay High
Court is being quoted as under:

"7. In the light of the dictum laid
down by the Apex Court as above, I am of
the firm opinion that the Civil Court acting
under Section 9, has inherent powers in its
plenary jurisdiction de hors with reference
to Section 34 of the Specific Relief Act to
grant relief qua Section 108 of the Evidence
Act. Therefore, the reason that Section 34
of the Specific Relief Act was required to be
called in aid does not appear to be sound."

10. Similarly, paragraphs nos. 11 and
12 of the judgement of Allahabad High
Court in Gokul Pandey and Others
(supra) are being quoted as under:

"11. From the bare perusal of the
above provision, it is clear that a suit for
276 INDIAN LAW REPORTS ALLAHABAD SERIES
declaration could be filed by any person for
the following objects: (a) for his or her
legal character, (b) for any right as to any
property. Thus, it is clear that a suit for a
declaration may be instituted for declaring
a status or legal character to which a
person/party may be entitled. However, in a
suit for declaration of a civil death of
another person, the plaintiff is not entitled
to such legal character under section 34 of
the Act. It is because a suit has been
brought for a legal character of another
person and not of the plaintiff.

12. Section 34 provides that any legal
character may be declared for which a
plaintiff is entitled. Besides this, he should
not be a stranger to a dead person, but he
must be interested in such legal character,
maybe as his legal heirs. The suit filed at
the instance of plaintiff can be contested by
anyone denying or interested in denying his
title to such character or right. Section 34
of the Act further bars any such declaration
where the plaintiff can seek further relief.
Legal character is a position recognised by
law. A person's legal character is the
attribute that the law attaches to him. After
the death of a person, his heirs, having an
interest in such legal character, have the
title to seek a declaration of such legal
character as to the person's death. The suit
at the instance of any such person for a
declaration is maintainable if he can stand
the test that he is entitled to any legal
character, even though he cannot lay to
immediate claim to any property."

11. From the above mentioned
judgements, it is clear that though there is
no bar under Section 34 of the Act, 1963,
for filing a suit for declaration of a civil
death of another person, if the plaintiff is a
legal heir and such legal character of civil
death is for his benefit and the same is
attributed to such legal character. Section 9
of CPC permits all suits of a civil nature
except the suits which are expressly or
impliedly barred. Section 9 of CPC is
quoted as under;

"9. Courts to try all civil suits
unless barred- The courts shall (subject to
the provisions herein contained) have
jurisdiction to try all suits of a civil nature
excepting suits of which their cognizance is
either expressly or impliedly barred."

12. Therefore, it is clear from Section
9 of the C.P.C that all suits, which are of a
civil nature, are maintainable before the
civil Court except specifically barred, but
the suit for declaration of any legal
character (civil death of a person) is not
specially barred by Section 34 of the Act,
1963. Section 34 of the Specific Relief Act
1963 is being reproduced as under.

"34. Discretion of Court as to
declaration of status or right.?Any person
entitled to any legal character, or to any
right as to any property, may institute a suit
against any person denying, or interested to
deny, his title to such character or right,
and the court may in its discretion make
therein a declaration that he is so entitled,
and the plaintiff need not in such suit ask
for any further relief:"

13. From the perusal of Section 34 of
the Act, 1963 and its proviso, it is clear that
it does not bar the suit for declaration of
civil death of a person, but it simply
regulates the suit which is in the nature of
mere declaration without seeking further
relief, which the plaintiff is able to seek,
but when there is no requirement for further
relief, then seeking further relief is not
necessary. The declaration seeks to clear
what is doubtful, and it prevents future
litigation by removing existing causes of
3 All. Smt. Raeesa Bano Vs. Smt. Tabassum Jahan & Ors.
277
controversy. It gives a remedy to a person
against all persons who not only claim
adverse interest to his own but against all
those who may do so, and it is intended that
all such claims may once and for all be
determined in one suit. Hon'ble Apex Court
in the case of Anathula Sudhakar vs P.
Buchi Reddy; 2008 (4) SCC 594 observed
that object of Section 34 of 'Act 1963' is to
provide
a
perpetual
bulwark
against
adverse attacks on the title of the plaintiff,
where a cloud is cast upon it, and to
prevent further litigation by removing the
existing cause of controversy.

14. Declaring a person's civil death is
a substantial relief and has an immediate
consequential effect. On the declaration of
the death of a person, benefits are accrued
on the legal heirs of the person declared as
dead, therefore relief of all such benefits
cannot be sought vaguely in the garb of
further relief. Even Section 34 of 'Act,
1963' itself permits seeking declaration
without further relief except in those cases
where
without
seeking
relief,
mere
declaration has no effect and such is not a
position in the declaration of civil death of
a person by a legal heir. Therefore, this
Court
holds
that
suit
for
mere
declaration of civil death is very well
maintainable and is not barred by
Section 34 of the 'Act, 1963' merely
because further relief was not claimed.

15. Though it is true that Section 108
of the Evidence Act 1872 provides a
presumption of civil death of a person who
has been missing for more than seven
years, but, if any person gets affected by
the missing of such person either by
express or implied denial by any of the
person, than he can very well file suit for a
declaration of the death of the person being
his legal heir. Though, proviso of Section
34 of the 'Act, 1963' provides that a suit for
mere declaration is not maintainable if the
plaintiff being able to seek further relief
than a mere declaration of title, omits to do
so. But in the present case, the basis of the
suit itself was to get the service benefit of
the late Akhtar Ali from the Electricity
Department and for that declaration of the
death of Late Akhtar Ali is necessary. For
another reason, no further relief is required
in the present case regarding seeking the
death benefit of Late Akhtar Ali because on
the declaration of civil death of Late Akhtar
Ali, the Government Department will
respect the same. In the present case, there
is no averment in the plaint that the
Electricity Department had denied to pay
service benefits or there is apprehension of
none payment despite the decree of the
civil Court for the declaration of the civil
death of Late Akhtar Ali. On declaration of
civil death of late Akhtar Ali, the
consequence will be that his wife, along
with other legal heirs, would be entitled to
the property and service benefit of the late
Akhtar Ali as per the law. Relief of the
same is not required to be pleaded as the
same will automatically flow to them after
the declaration of his civil death. Therefore,
even if no specific relief is sought against
the Electricity Department even then the
suit for the declaration of the death of the
husband of the appellant cannot be
dismissed as not maintainable under
Section 34 of the Act, 1963.

16. From the material available on
record, it is undisputed that Late Akhtar Ali
was missing for more than 13 years, and
the appellant has completed all required
formalities, including the lodging of FIR.
Therefore, there is sufficient material to
declare the civil death of Late Akhtar Ali at
the instance of the appellant, who is his
wife.
278 INDIAN LAW REPORTS ALLAHABAD SERIES

17. In view of the above analysis, this
Court finds that the order of the learned
Civil Judge and the first appellate Court
suffers from illegality, which is apparent on
the face of the record. Therefore, the
judgement dated 18.1.2016 passed by the
Additional District Judge, Court No. 15,
Lucknow in Regular Civil Appeal No. 142
of 2015 (Smt. Raeesa Bano Vs. Smt.
Tabassum Jahan & Others) and judgment
and decree dated 31.8.2015 passed by Civil
Judge (Senior Division), Mohanlalganj,
Lucknow, in Suit No. 128 of 2015
(Smt.Raeesa Bano Vs. Smt. Tabassum
Jahan & others) are hereby set aside.

18. The matter is remanded back
to the learned Civil Judge, Senior Division,
Mohanlalganj, Lucknow to pass a fresh
order in light of the above observations.

19. Considering the peculiar facts and
circumstances that the suit itself was filed
in the year 2015, and all evidence has been
adduced before the learned Civil Judge and
the suit was itself uncontested; therefore,
learned Civil Judge, Senior Division,
Mohanlalganj, Lucknow is further directed
to complete the proceedings of passing a
fresh order in Suit No.128 of 2015, within a
period of three months from the date of
receiving a copy of this order, in
accordance with the law.

20. With the observations above, the
appeal is allowed.
----------
(2024) 3 ILRA 278
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.03.2024

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal No. 756 of 1982
Divisional Forest Officer Noth Kheri
 ...Appellant
Versus
Surjan Singh & Ors. ...Respondents

Counsel for the Appellant:
C.S.C.

Counsel for the Respondents:
Sajid Raza Rizvi, Satendra Nath Rai

A. Civil Law - Civil Procedure Code, 1908 -
Section 100 - Substantial question of law
- Significance of its formulation - Similar
second appeal was dismissed - Relevance
- Held, once the substantial questions of
law have been formulated in this second
appeal by the court after considering the
rival contentions, it cannot be dismissed
merely because the similar second appeals
have
been
dismissed by
this
Court,
particularly, when the said orders have
been passed without considering the
issues raised in this appeal. (Para 13 and
14)
B. Civil Law - Indian Forest Act, 1927 -
Sections 4 & 20 - UP Zamindari Abolition
and Land Reforms Act, 1950 - S. 229-B -
After issuance of notification u/s 4 and 20
of Act, 1927, the suit u/s 229-B was filed
and allowed, and based on this order
passed u/s 229-B, the civil suit was
decreed - Permissibility - Held, once the
notification has been issued u/s 4 of the
Act of 1927, all claims can be raised
before the Forest Settlement Officer, who
can consider the same and decide the
claim
after
affording
opportunity
of
evidence exercising the powers of a civil
court - No authority or court had power to
entertain any dispute in regard to the land
declared as reserve forest u/s 20 in view
of Section 27(A) as added by U.P. Act No.
23 of 1965, therefore, the suit under
Section 229-B of the Act of 1950, that too
without impleading the Forest department
or
concerned
Officer
of
the
forest
department, was not maintainable. (Para
15, 22 and 40)

C. Civil Law - Declaratory suit u/s 229-B
of the Act, 1950 - Non-joinder of party -