The main legal point established in the judgment is that a suit for declaration may be maintainable even if not coupled with the prayer for partition, but the plaintiff must seek further relief than a mere declaration of title to avoid the bar under Section 34 of the Specific Relief Act.

JUDGMENT :

1. The present second appeal is preferred by the appellants herein challenging the judgment and order dated 07.10.2015 passed by the learned 8th Additional District Judge, Vadodara in Regular Civil Appeal No. 25 of 2012 as well as the judgment and decree dated 07.12.2011 passed by the learned 3rd Additional Senior Civil Judge, Vadodara in Regular Civil Suit No.373 of 2005. The appellants herein are the legal heirs of appellant no.1 – Sumitra Ashokbhai Patel.

2. Brief facts of the present case are that the original plaintiff – Sumitraben was the daughter of deceased Fakirbhai Somabhai Patel and respondent no.1 is the son of the deceased Fakirbhai Patel and respondents no.2, 3 and 4 are the heirs of Fakirbhai’s son deceased Ravjibhai Fakirbhai Patel. The agriculture lands (suit properties) bearing block no.206 and block no.1065 are the joint properties of deceased Sumitraben and the respondents. The deceased Sumitraben has 1/3rd share in the suit lands and on the basis of the cause of action, the original plaintiff filed the abovementioned suit for declaration and permanent injunction restraining the respondents from transferring the suit properties, which came to be allowed by the Trial Court. The Trial Court observed that the original plaintiff has 1/7th share in the suit properties.

2.1 Being aggrieved by the impugned judgment and decree passed by the Trial Court, the appellants have preferred the regular civil appeal before the First Appellate Court, which came to be dismissed and allowed the cross-objection filed by the respondents.

3. Feeling aggrieved and dissatisfied with the impugned aforesaid judgment and order, the appellants have preferred the present appeal.

4. Heard Mr.S. P. Majmudar, learned counsel appearing for the appellants and Mr.Kashyap Joshi, learned counsel appearing for the respondents.

5. Mr.Majmudar, learned counsel appearing for the appellants has submitted that the appellants herein are the legal heirs of original plaintiff – Sumitraben (deceased). He has submitted that the suit is filed seeking permanent injunction and declaration that the deceased Sumitraben has 1/3rd share in the suit properties after the death of Fakirbhai Nathabhai Patel who survived by seven heirs i.e. his widow Maniben, four daughters and two sons, the pedigree of which is produced on record at page no.10 of the paper-book. He has submitted that after the death of Maniben, other sisters namely Urmilaben, Savitaben and Dakshaben have executed a release deed (Fargati Lekh) at Exhibit 68 whereby they relinquished their rights in the suit properties in favour of two brothers – respondent no.1 and respondents no.2 to 4 (legal heirs of another brother Ravjibhai Patel). According to Mr.Majmudar, learned counsel, from bare perusal of the release deed and as per the concurrent findings arrived at by both the Courts below, the original plaintiff has not signed the said release deed. He has submitted that the affidavit of Dakshaben at Exhibit 71 supports the case of the appellants as far as the relinquishment of the share of three other sisters are concerned. He has submitted that consequently, only three heirs of deceased Fakirbhai are entitled to get share in the suit properties namely original plaintiff and defendant no.1 and defendants no.2 to 4. He has submitted that both the Courts below have held and observed that except other three sisters, the deceased – Sumitraben has not relinquished her share in the suit properties and resultantly, the Courts below have recognized the share of the plaintiff, as a matter of principle, but have failed to take into consideration the effect of the relinquishment by other three sisters, which fact is supported by the evidence of Dakshaben. It is submitted by Mr.Majmudar, learned counsel that neither other three sisters have denied having relinquished their shares nor filed any suit challen