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.

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