A suit for declaration of title without prayer for consequential relief is maintainable under Section 34 of the Specific Relief Act, 1963, and the period of limitation for such a suit is determined under Article 58 of the Limitation Act, 1963. Additionally, the evidentiary value of an admission under Section 17 of the Indian Evidence Act, 1872, requires clear and unambiguous proof.

JUDGMENT

1. The substantial questions of law involved, formulated and to be answered in this second appeal preferred by the appellants/defendants are as under:

''1. Whether a suit for declaration of title without prayer for consequential relief is maintainable ?

2. Whether the suit was barred by law of limitation ?

3. Whether the finding of both the Courts below that the plaintiffs and defendants do not hail from a common ancestor, has been arrived at by nonconsideration of the oral and documentary evidence available on record and as such it is perverse ?''

[For the sake of convenience, the parties would be referred hereinafter as per their status shown in the suit before the trial Court].

2. The following genealogical tree would demonstrate the relationship among the parties:

3. Plaintiff Sonaru filed a suit for declaration of title and permanent injunction stating interalia that the suit property was held by Udkudi and he was having 13.65 acres of land, he had two sons namely Bheema and Lakhmu. After death of Urkudi, Bheema and Lakhmu came into joint possession. Gagra was son of Lakhmu and the plaintiff was son of Gagra. After death of Bheema, Lakhumu and Gugra, the suit property came into the name of the plaintiff in the year 1963 when he was minor. Since the plaintiff was unable to cultivate the suit land, assistance was sought from the defendants father Bhaira and Jhitka and the plaintiff allowed the defendants'' father to cultivate half of the suit land on the basis of adhiya . The plaintiff has no relationship at all with the family of Bhira and Ghitka. When the defendants father got the suit land mutated in their names and order of partition dated 18.7.2000 was passed and threatened the plaintiff to dispossess from the suit land, necessity arose to file a suit for declaration of title and permanent injunction.

4. The defendants have filed their written statement and denied the averments made in the plaint stating interalia that Urkuda had one more son namely Paran apart from Bheema and Lakhmu. After death of Urkuda, the suit land was recorded in the name of elder son Bheema, however, all three brothers were joint in cultivation, as such, the plaintiff is not entitled for exclusively title and not entitled for permanent injunction. It was further pleaded that the suit was barred by limitation as cause of action arose in the year 1963, 197677 and 7788 and the suit was filed on 3.4.2001 and prayed for dismissal of suit.

5. The trial Court upon evaluation and after appreciation of oral and documentary evidence available on record, by its judgment and decree dated 8.9.2003, decreed the suit. On appeal being preferred by the defendants under Section 96 of the CPC before the first appellate Court, the said appeal Court dismissed the appeal and upheld the judgment and decree of the trial Court, against which, this second appeal under Section 100 of the CPC has been filed by the appellants/defendants, in which substantial questions of law have been framed by this Court, which have been setout in opening paragraph of this judgment.

6. Mr.Prafull Bharat, learned counsel for the appellants/defendants, would submit that both the Courts below were absolutely unjustified in entertaining the suit as the suit for declaration of title without prayer for consequential relief of possession was not maintainable and the suit was barred by limitation. He would further submit that both the Courts below have committed legal error in holding that the plaintiff and the defendants do not belong to a common ancestor Urkuda, as such, finding recorded in this regard is finding which is perverse and contrary to record and therefore, it is liable to be set aside.

7. None present for respondents No.1(a) to 1(d).

8. I have heard learned counsel for the appellants/defendants and considered his submission and also went through the records with utmost circumspection.

Answer to substantial question of law No.1:

9. It is the case of the plaintiff that half of