A plaintiff who is not in possession of the property and who is able to seek further relief than a mere declaration of title cannot obtain a declaratory decree under Section 42 of the Specific Relief Act, 1877.

( 1 ) THIS is plaintiffs second appeal and is before us on reference by one of us as it raises a question of raw bearing on the effect of, dismissal in default of a claim petition made by defendant No. 1 under Section 325 H. c. p. c. corresponding to Order XXI, Rule 58, C. P. C. on which there is a difference of opinion between the erstwhile Hyderabad High Court and the other High courts of India.

( 2 ) BRIEFLY stated, the facts are these plaintiff-appel-lant Suryanarayana, son of Janardnanaswamy brought a sun for declaration of title to the suit house situated in Kishna-pur, Warangal. Disrict against derendant 1, his own paternar grand-mother, and defendant 2, Hanumantha Rao, alreged to be the tenant in occupation. The plaint allegations were that Janardhanaswamy, father of the plaintiff was the owner in possession of the suit property, that after his death, the plaintiff was in possession, that the plain-tiffs father had taken a loan from one Mond. Sherif, who in a suit brought against him for the same, obtained a decree and put it into execution, that Janaronanaswamy was dead By that time, that Defendant 1, his mother, set up her claim to the property under Section 325, Hyderabad Civil Procedure Code corresponding to Under XXI, Rule 58, which claim petition was dismissed for default, on 17-6-49, that the petition was, however, restored on 18-10-49 but that it was eventually once again dismissed for default on 25-7-50 and that alter the dismissal of the, claim petition, the plaintiff got the decree of Mond. Sherif transferred in favour of one Parvala satyavatni, who under an agree-ment undertook to pay off the oecretal amount to Mono Sherif and it was agreed that till such period she shall continue in possession of that suit house as a tenant. His contention was that Satyavathi was thus in possession of the house as a tenant when defendant 1 brought her suit for possession against defendant 2 alleging that he was her tenant. Defendant No. 2 therein denied that he was her tenant and stated that, he was the tenant of me plaintiff. That suit ended in an ex parte decree against him. Satyavathi, who claimed to be in actual possession filed a claim petition in the execution proceedings, but it was dismissed on 18th Ardibehest, 1354 P. As a result, just three days thereafter the plaintiff filed the present suit for declaration that he is the owner, and that inere-tore defendant 1 cannot execute her decree in that the said decree to which he was in no way a party was not binding on him. Defendant 1 died during the career of the suit. Her legal representatives were brought on record out ot whom only five are represented before us. The legal representatives 1, 3, 4 and 5 are represented by Shri Gopal Rao Tuljapurkar while the legal representative 2 is represented by Shri Sadashiv Rao.

( 3 ) THAT suit was hotly contested. Evidence both oral and documentary was adduced. On the evidence produced which consists of nine witnesses on behalf of the plain-tiff and six on behalf of the defendant besides 24 documents filed en behalf of the plaintiff and 36 documents on behalf of the defendant, We trial court decreed the claim of the plaintiff. But on a consideration of the same evidence, the first appellate Court came to a different conclusion. It found that the plaintiff has tailed to establish his right, title and interest in the house, that defendant 1 in whose name stood the sale deed of the land was the real owner and that that was evident from the will executed by defendant 1s husband in her favour. It may be noticed at this stage that a plea under Section 330, Hyd. C. P. C. corresponding to Order XXI, rule 63 C. p. c. was raised in the written statement itself but neither in the trial Court nor before the appellate Court it seems to have been pressed probably because of the trend of decisions of the erstwhile Hyderabad High court, for the first time, it was seriously urged when the matter came up for consideration fn second