A suit for a mere declaration of title is barred under the Proviso to Sec. 42 of the Act if the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Raj Kishore Prasad, J.

1. This appeal, by the plaintiffs, arises out of a suit for a mere declaration of title to the lands in suit, which has been dismissed by the court below, on the merits, as also on the ground that the suit was not maintainable in view of the Proviso to Sec. 42 of the Specific Relief Act, hereinafter referred to as "the Act".

2. The two preliminary questions, which fall to be considered are :

(1) Whether the suit, for a mere declaration of title, was barred, on the facts, here, under the Proviso to Sec. 42 of the Act?, and,

(2) In case the above question is answered in the affirmative, then if the plaintiffs should be permitted to amend their plaint by seeking such consequential relief as may be open to them?

3. The first point, therefore, raises a -question under Sec. 42 of the Act, and, in particular, the Proviso, which precludes the granting of a declaration "where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so".

4. In order to answer this question, it is necessary to know the material facts of the case bearing on this question, 5 Briefly stated, the relevant facts are these.

In 1954, on a police report, reporting apprehension of breach of the peace, submitted on 23-11-1954, a proceeding under Sec.145 of the Criminal Procedure Code, (for brevity it will be referred in the judgment as the Code), in respect of the lands in suit, was instituted between the parties. In the said proceeding, it is admitted by the learned counsel for both the parties that the lands were attached under the Second Proviso to Sub-section (4) of Sec.145 of the Code.

5. Ultimately, the said proceeding on 6-8-1956 rented in an order under Sec.146 of the Code as the Magistrate was unable to satisfy himself as to which of them was then in such possession of the lands in dispute and, therefore, he attached the lands in suit under Sec.146 (1) of the Code until a competent Court determined the rights of the parties thereto, or the person entitled to possession thereof. Against the said order passed under Sec.148 of the Code, both the parties to the present action went up in revision to the Sessions Judge, who, however, on 8-11-1956 rejected both the revisional applications and upheld the order under Sec.146 of the Code.

Against the aforesaid order of the Sessions Judge, only the present defendants moved the High Court in revision. During the pendency of the said revisional application in this Court, the present action was instituted by the plaintiffs on 21-2-1957, originally both for declaration of title and also for recovery of possession. During the pendency of the suit, however, this Court on 24-7-1957 set aside the order under Sec.146 of the Code and remanded the proceeding under Sec.145 of the Code to be reheard and decided afresh.

6. None of the parties produced the relevant orders of the proceedings under Sec.145 or Sec.145 of the Code, either of the Magistrates court or of the superior Courts. It was, however, conceded by the learned counsel for both the parties, that the result of the order of this Court remanding the proceeding under Sec.145 of the Code to the Magistrate to be reheard and disposed of afresh was, that the original attachment under the Second Proviso to Sec.145 (4) of the Code was revived, and, it remained effective during the pendency of the suit and, further, that the said proceeding under Sec.145 of the Code, after remand by the High Court, was pending during the pendency of the suit in the court below and had not been disposed of till the decision of the suit by the trial Judge.

7. In April, 1958, the Magistrate, in seisin of the case under Sec.145, after its remand, by public auction, settled the lands in suit with one Kirti Sao for the year ending 31st March, 1959, as admitted by the plaintiffs in their application for amendment of their plaint made to the court below on 7-8-1958.

8. The plaintiffs, after the proceeding under Sec.145 of the Code ha