K.S. Mudagal, J.

This plaintiff's appeal arises out of the judgment and decree dated 17.2.2005 passed by XIV Additional City Civil Judge, Bangalore (CCH-28) in O.S.No.248/2001. By the impugned judgment, the trial Court has dismissed the suit of the plaintiff for declaration of his title over plaint 'B' schedule property and for possession.

2. The suit 'A- Schedule Property is a house bearing No. 9, situate at Sy.No.69/1 of Jar-aganahalli Village, Uttarahalli Hobli, Bangalore South Taluk. The suit 'B' schedule property is a portion of the structure measuring 10''x 20' in 'A- schedule property. The respondent is defendant before the trial Court. For the purpose of convenience, parties will be referred to hereafter with their ranks before the trial Court.

3. The case of the plaintiff in brief is as follows:-

Suit 'A' schedule property originally belonged to plaintiff's elder brother, Sri. Nagarajaiah. He was a bachelor. He executed a registered Will dated 13.2.1992 bequeathing 'A- schedule property in favour of the plaintiff. He died on 13.9.1992. On his death, by virtue of the Will, the plaintiff has succeeded to the property as absolute owner thereof. The defendant was residing in suit 'B' schedule property as a tenant. The plaintiff filed an eviction petition against the defendant in H.R.C. No. 193/1996 before the Court of Small Causes, Bangalore, under Section 21(1)(A), (H) of the Karnataka Rent Control Act. In the said petition, defendant disputed the jural relationship. The Small Causes Court dismissed the said petition holding that no jural relationship of landlord and tenant exists between the parties. The defendant is in unauthorized occupation of suit 'B' schedule property without paying any rents for use and occupation of the suit 'B' schedule property. Average rent for such property in that area is Rs. 100/- per month. Thus, the plaintiff claims declaration of his title to the suit property by virtue of the Will, possession and damages of Rs. 3,500/- per month and further mesne profits at Rs. 100/- per month.

4. The defendant did not appear and contest the suit. The plaintiff got himself examined as PW1 and one Mariyappa as PW2 and got marked Exhibits P1 to P11. The trial Court on hearing the parties, framed the following points for consideration:-

"(i) Whether the plaintiff proves that suit is maintainable in the present form without seeking prayer for declaration in respect of entire property?

(ii) Whether plaintiff is entitled for possession of plaint 'B' schedule property?

(ii) Whether plaintiff is entitled for damages as claimed?

(iv) What order or decree?"

5. By the impugned judgment, the trial Court dismissed the suit on the following grounds:

(a) that the plaintiff ought to have sought relief of declaration of title in respect of both 'A'and 'B' schedule properties, therefore, suit is not maintainable.

(b) the attesting witness does not speak about the execution of the Will and but only relies on Ex. P2, his deposition in a previous proceedings; thus the Will cannot be held as proved.

6. The learned counsel for the plaintiff reiterates the grounds of the appeal memo and contends that the defendant is in possession of only 'B' schedule property and no other heirs of the testator have challenged the Will. He further contends that the defendant is a stranger to the testator. He contends that having regard to the facts that the other legal representatives have not challenged the bequeath, he need not seek declaration of the title to the entire property.

7. Relying on Section 5 of the Specific Relief Act, he contends that he has to seek recovery of the possession, specific portion of the immovable property and not for the entire property. He contends that there is no cloud to his title in respect of plaint schedule 'A- property. Therefore it is not necessary for him to claim declaration for the whole property.

8. As against that, the counsel for the defendant contends that though the defendant has not filed written stat