JUDGMENT

1. Both the lower Courts have dismissed the Plaintiff's suit on the ground that it was not maintainable. The Plaintiff sought to obtain a decree declaring his title to the three plots in the schedule and for a declaration that the Defendant had acquired no right to the properties in virtue of the rent decrees he had recovered against the Plaintiff's tenants.

2. In the opinion of the lower Courts, the Plaintiff should have included a prayer for recovery of possession, and, further, the lower Appellate Court refused to allow him to amend the plaint because there had been considerable delay in applying for that purpose.

3. In second appeal, the contentions raised are three in number; first, that the Plaintiff's suit was maintainable on a right construction of sec. 42 of the Specific Relief Act; secondly, that, at any rate, the amendment of the plaint prayed for should have been allowed, and, thirdly, that, in any event, the suit can proceed with regard to the third plot as to which the Defendant has not recovered any rent decree against the tenant thereof.

4. A number of cases have been cited; but, before dealing with three of the cases which appear to be on the point, we may observe that sec. 42 provides for a suit by a person, who is unable to seek any further relief, for a mere declaration against another person interested to deny his title. Unless, therefore, the Plaintiff in the present action is able to seek further relief than a mere declaration of title, his suit is perfectly good and should be permitted to proceed. Now, his position is that he is still in possession of the three plots in suit, and that he has not yet failed to recover rent from the tenants on the land. He may possibly be defeated in an attempt to recover rent, but, in the present circumstances, he has come into Court in order to dispel the cloud cast upon his title by the action of the Defendant. Suits of this kind are frequently brought.

5. In Loke Nath Surma v. Keshab Ram Doss ILR 13 Cal. 147 (1886), it was pointed out that the Plaintiffs were entitled to sue under sec. 42 of the Specific Relief Act, because they were not seeking for khas possession, but merely for possession by receipt of rent from the Defendants, and that, on obtaining a declaration of title, it would be sufficient for them to notify it. In that view, it was held that the Plaintiff's omission to sue for possession was immaterial.

6. Then, in Chinnammal v. Varadarajulu I. L.R. 15 Mad. 307(1892), the conclusion drawn from all the evidence as to possession was that possession of the whole property in dispute was neither with one nor the other of the contending parties, and that it might be expected in a case of such dispute that some of the raiyats might recognize one claimant as their landlord and some the other. The learned Judges of the Madras High Court went on to say that such a case is eminently one in which a declaratory decree is desirable, to avoid. multiplicity of suits and to obtain a decision once and for all, which shall secure peaceful possession of the property. In fact, in a case of this kind, the Plaintiff is unable to seek any further relief.

7. We may, also, refer to the decision of the Judicial Committee in Nirmal Chandra v. Mahomed Siddik ILR 26 Cal. 11(1898), in which the decision of Macpherson, J., was ultimately upheld. There, an objection was raised as to the form of the suit being one to obtain a declaratory decree only. In that case rival claimants had obtained decrees for rent each against some tenants of the property. Their Lordships thought that the suit being an attempt to put the whole title directly in issue between the principal claimants, it was not only the most convenient but a strictly regular way to bring the dispute to a close.

8. On these authorities, we think the Plaintiff's suit was maintainable. We need not anticipate what may eventually happen if the Plaintiff is successful in this litigation. His object being to obtain a declaration in orde