AMITABHA DUTTA, J.

( 1 ) THIS is an appeal by the defendant 1 from an appellate decree and it arises out of a suit for a declaration and permanent and mandatory injunctions.

( 2 ) THE immovable property described in 'ka' schedule and the movables described in 'kha' schedule to the plaint are debutters of the property of the deity Sri Sri Kalimata Thakurani of Ghutia Bazar in the town of Chinsurah in the district of Hooghly. 'ka' schedule property comprises of temple of the deity and other structures within the temple compound. Three brothers Amulya, Puma and Prafulla Gangopadhyay were the shebaits of the deity. Purna transferred his 1/3rd share in the shebaitship to Prafulla who thereafter had 2/3rd share and Amulya had the remaining 1/3rd share in the shebaitship of the deity. By a written agreement between Prafulla and Amulya the pala or turn of worship was divided. Prafulla was to perform sheva puja of the deity for two years from Magh to Pous each Bengali year and Amulya was to do so in the third year. Thereafter Amulya died on 12th Falgun 1370 B. S. (29-3-1963) leaving a daughter (the plaintiff No. 1) and two widows (plaintiff 2 and the pro forma defendant No. 2 ).

( 3 ) THE plaintiffs brought the present suit against Prafulla alleging that when their pala began from 1st Magh 1372 B. S. Prafulla the defendant 1 did not make over to them the 'kha' schedule movables required for worship of the deity and refused to allow them to perform sheva puja. He also prevented the plaintiffs from entering into the rooms of the deity for worship.

( 4 ) THE defendant 1 contested the suit by filing written statement contending that Amulya shortly before his death had renounced his share in the shebaitship in favour of the defendant 1 and that the plaintiff being out of possession of the debutter properties the suit for declaration and injunctions without a prayer for recovery of possession is not maintainable.

( 5 ) BOTH the courts below have after considering the evidence disbelieved the defence case that Amulya renounced his share in the shebaitship in favour of the defendant 1. They have for different reasons held that the suit is maintainable. So the decree passed by the trial Court declaring the plaintiff's 1/3rd share in the shebaitship restraining the defendant 1 from interfering with the plaintiff's performance of sheva puja according to pala for one year in every three years and directing him to deliver item Nos. 1 to 21 of schedule 'kha' to the plaintiffs for performing the worship of the diety has been affirmed by the first appellate Court.

( 6 ) THE only point raised on behalf of the appellant defendant 1 in this appeal is that as the plaintiffs co-shebaits were out of possession of the debutter properties at the time of the suit the present suit for a declaration and injunctions without claiming the further relief of recovery of possession is barred by S. 34 of the Specific Relief Act, 1963. In support of this contention Mr. Sengupta has relied on three Bench decisions viz. Kumud Ranjan v. Manabendra, AIR 1974 Cal 342, Radha Govinda v. Kewala Devi, AIR 1974 Cal 283 and Panna Banerji v. Kai Kinkor, AIR 1974 Cal 126. But in AIR 1974 Cal 342 no question of shebaitship of a deity was involved. It reiterates the settled law that a suit for a declaration of title and injunction in respect of immovable property by the plaintiff who is out of possession is not maintainable and is barred by S. 34 of the Specific Relief Act, 1963 for not claiming recovery of possession as the further relief. In AIR 1974 Cal 283 the question was whether a suit by the deities through their shebaits for declaration of title and permanent injunction in respect of one of the items of debutter property illegally transferred by an ex-shebait to a third party was maintainable when the plaintiffs were out of possession of the suit property in the absence of a prayer for recovery of possession and it was answered in the negative. In AIR 1974 Cal 126 it was

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