The plaintiffs cannot claim a mere declaration of title without seeking further relief for possession, as stipulated by Section 34 of the Specific Relief Act, rendering the suit not maintainable.

JUDGMENT :

SUSMITA PHUKAN KHAUND, J.

Factual Matrix :-

1. This appeal was admitted on the following substantial question of Law:-

"whether the findings of the First Appellate Court are perverse on the face of the pleading and evidence of the plaintiff's witnesses.”

2. The appellants in this case are (i) Nowshad Ali, (ii) Fuleshwari Bibi, (iii) Abul Hussain, and (iv) Jafar Sk, whereas, the respondents in this case are (i) Alep Uddin, (ii) Golap Uddin, and (iii) Gias Uddin.

3. The Title Suit No. 60/2012, was brought up by the appellants/plaintiffs contending inter alia that the deceased predecessor of the plaintiffs namely Basaddi Sk was the exclusive owner and recorded pattadar and was in possession of a parcel of land admeasuring 1B 4K 9L appertaining to Dag No. 147(old) 316(new); 82(old) 232(new) ; 138(old) 288(new); and 288(old) 130(new) under patta No. 94(old) 85(new) of Durahati Village under Dhubri Circle.

4. This plot of land is the subject matter of the suit and is described in the Schedule-B of the plaint. When the plaintiffs filed a petition before the learned A.S.O., Dhubri Circle, to get their names recorded, a Misc. Case being DM (Misc) Case 19/2010 was registered and the order dated 04.08.2010, was passed in favour of the plaintiffs 1 and 2 but the patta was wrongly entered as patta No. 16 instead of patta No. 94(old) 85(new) and the details are described in the Schedule-A of the plaint. Meanwhile, the defendant Nos. 1, 2 and 3/the present respondents filed Misc. Appeal No. 62/2010 in the Court of Defendant No. 5 i.e., S.O., Dhubri Circle against the order of the Defendant No. 4 i.e., A.S.O., Dhubri Circle. The Misc. Appeal No. 62/2010 was allowed and the order of the Defendant No. 4 was set aside. Nonetheless, the plaintiffs have brought up this suit that they have right, title, interest and possession over the Schedule-B land and the defendant Nos. 1, 2 and 3 have no right, title, interest and possession over the Schedule-A land.

5. It is contended that the defendant Nos. 1, 2 and 3 have taken the plea that the sale deed No. 2245/59 was executed by one, Kaser Uddin with respect to the suit land and the said sale deed is forged and fraudulent and is not related to the suit land. However, defendant Nos. 1, 2 and 3 attempted to take possession of the suit land by demolishing the houses of the plaintiffs and to that effect, a criminal case was also filed against the defendant Nos. 1, 2 and 3, and simultaneously this suit was also filed for right title interest, confirmation of possession, cancellation of sale deed, correction of record and for permanent injunction. The defendants appeared but failed to file written statement within the stipulated period and accordingly, this suit proceeded ex-parte against all the defendants.

6. The plaintiffs, however, adduced evidence of 8 witnesses and the defendants cross-examined the witnesses. It was held by the learned Trial Court that the suit is hit by proviso to Section 34 of the Special Relief Act and found not to be maintainable and the Trial Court dismissed the suit.

Findings of the learned Trial Court :-

7. The learned Trial Court has held that the plaintiffs admitted that some portion of the suit land was under the possession of the medical sub- centre which was illegally gifted by the predecessor of the defendants about 30 years back. It was observed by the learned Trial Court that the evidence of PW1/plaintiff No. 1 reveals that Isamuddin, predecessor of the defendant illegally gifted some portion of the suit